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J. 2003 SKQB 262 Q.B.G. A.D. 2003 No. 73 J.C. W. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF WEYBURN IN THE MATTER OF SECTION 49(1) OF THE RESIDENTIAL TENANCIES ACT and INGRID BJORK and THE OFFICE OF THE RENTALSMAN RESPONDENT M. Dean Brown for the appellant Ingrid Bjork, self-represented FIAT WILSON J. June 5, 2003 [1] This is an appeal by Paul Maley, the tenant, from the decision of the Rentalsman dated April 9, 2003. Mr. Maley was tenant at 132 Laurier Road in the Town of Radville, home which he rented from the landlord, Ingrid Bjork. After Mr. Maley vacated the home the landlord made application pursuant to s. 47 of The Residential Tenancies Act, R.S.S. 1978, c. R-22, as am., for the sum of $3,746.76 for rent loss, cleaning costs, damages to the premises and utilities which were not paid. After hearing held on February 27, 2003 at Weyburn, Saskatchewan, the Rentalsman made an order requiring the tenant to pay the total sum of $2,930.01 to the landlord. [2] The grounds of appeal set out in the notice of appeal filed by the tenant are as follows: a) That the Rentalsman’s decision is patently unreasonable—unsupportable by the facts—and therefore the Deputy Rentalsman erred in law; andb) That the Rentalsman’s decision was also an error of law in denying natural justice and due process by proceeding with insufficient notice of the particulars of the claim to allow the tenant to prepare a full and proper defence. [3] Prior to the hearing before the Rentalsman, the tenant was served with hearing notice. The landlord’s claim was set out in the hearing notice. The landlord’s claim included, inter alia, claim for cleaning in the sum of $2,241.45. On the form which is utilized as hearing notice there is specific provision for “cleaning” claim and the form received by Mr. Maley indicated the following as description of the cleaning claim: [H]ouse was very filthy—a real pig pen—was cleaned from top to bottom, painted kitchen. have before after pictures. Three people worked hours hours to get it clean. [4] At the appeal hearing Mr. Maley took the position that the notice he received of the cleaning claim as set out on the hearing notice was inadequate and, that when he attended for the hearing before the Rentalsman he was not prepared to refute the amount of the cleaning claim. Further, he argued he was not aware that he could ask for an adjournment to present further evidence. As result he takes the position that there was denial of natural justice and the Rentalsman’s decision should be overturned. [5] Mr. Maley referred this Court to the decision of Laing J. in Michayluk v. Menke Holdings Ltd.(1998), 1998 CanLII 13729 (SK QB), 169 Sask. R. 38 (Q.B.). However, it is my view that the Michayluk case can be clearly distinguished from the case before the Court. In Michayluk the tenant was served with notice of claim stating: “Damages to premises: Brief itemized description”—“Estimate—$1,500.00”. The form did not identify the alleged damage, or breakdown the sum of $1,500.00. Further, at the hearing of the matter, and without prior notice to the tenant, the landlord applied to amend its claim to total of $3,764.46 and provided written particulars of the expanded claim. The amendment was allowed by the Rentalsman. Laing J. concluded that because the notice of claim provided an inadequate description of the claim for damages and, further, the amendment to the claim was allowed at the hearing without prior notice, the rules of natural justice had not been met. [6] The hearing notice received by Mr. Maley in this case set out the specific amount for cleaning that the landlord was requesting, that is, the sum of $2,241.45. There was no attempt by the landlord to amend this claim at the hearing of this matter before the Rentalsman. Further, although the description of the cleaning required did not specifically state how many hours of cleaning was done and at what hourly rate it was done, it was, in my view, sufficient to alert the tenant that the cleaning claim was for hours of work as well as for painting. Mr. Maley could, if he had chosen to do so, have sought out skilled house cleaner prior to the hearing by the Rentalsman and had that person attend with him to consider the evidence that was going to be presented by the landlord (including the pictures that Mr. Maley was aware would be shown). It is, therefore, my view that Mr. Maley was not denied natural justice and due process in this matter. [7] Finally, I cannot find that the Rentalsman’s decision is patently unreasonable as being unsupportable by the facts. The Rentalsman made the decision in this matter after having reviewed the pictures filed by the landlord, the repair bills filed by the landlord, and the statements of the house cleaners who indicated the hours worked and the hourly rate utilized. The Rentalsman reached a decision based on all the evidence and came to a conclusion that was not patently unreasonable given that evidence. [8] The appeal of Mr. Maley herein is dismissed.

FIAT. After the tenant vacated the home, the landlord, pursuant to Residential Tenancies Act s.47, sought $3,746.76 for rent loss, cleaning, damage to the premises and unpaid utilities. The Rentalsman's order required the tenant to pay $2,930.01. The tenant appealed on the grounds the Rentalsman erred in law, as the decision was patently unreasonable as unsupportable by the facts; there was a denial of natural justice and due process because there was insufficient notice of particulars of the cleaning claim to allow the tenant to prepare a full and proper defence. The tenant argued there was a denial of natural justice and the decision should be overturned because he was not aware he could ask for an adjournment to present further evidence. HELD: The appeal was dismissed. The tenant was not denied natural justice or due process. While the description of cleaning did not specifically state the number of hours or hourly rate, it was sufficient to alert the tenant that it was for hours of work as well as for painting. The Rentalsman's decision, made after reviewing pictures, repair bills and the statements of house cleaners, who indicated the hours worked and their hourly rate, was not patently unreasonable as being unsupportable by the evidence.

3_2003skqb262.txt

J. Bankruptcy No. 2564 Estate Nos. 023027 J.C.R. IN THE QUEEN'S BENCH PROVINCE OF SASKATCHEWAN IN BANKRUPTCY IN THE MATTER OF THE BANKRUPTCY OF NICK J. MORIN Nick J. Morin, bankrupt Ronald J. Dumonceaux, for the bankrupt Graham Pearson, Deloitte Touche Inc., Trustee Gordon Berscheid, for her Majesty the Queen in right of Canada, as represented by the Minister of National Revenue, objecting creditor Jim Kroczynski, for James and Mary Michaluk, objecting creditor JUDGMENT MAURICE J. HERAUF, April 17, 1998 Registrar in Bankruptcy Two creditors objected to the automatic discharge of the bankrupt, Revenue Canada and James and Mary Michaluk. The claim of Revenue Canada falls into two parts; $166,359.72 represents net goods and services tax assessed for the period January 1, 1991 to July 31, 1992 and $14,223.30 for unpaid personal income tax for the 1991 taxation year. The claim of the Michaluks is for $58,720.34. This sum represents amounts outstanding on failed agreement and lease of the Michaluk's property in Manitoba to the bankrupt. The claims of these two creditors represent the vast majority of claims of unsecured creditors in this bankruptcy. The bankrupt's position is that the bulk of the debt was incurred as result of the failure of his former business, Red Bull Enterprises Ltd. He contends that the failure was caused by protracted dispute with the Department of Highways over the right of Red Bull to occupy land owned by Highways. The main asset of Red Bull was gas bar/restaurant which was situated on Department of Highways property. The bankrupt claims that the business failure combined with pressure from creditors such as the Michaluk's caused him to look at bankruptcy as the only alternative. The date of the assignment was December 19, 1995. The causes of bankruptcy as set out in the Section 170(1) report are "Failure of business. Unable to meet financial obligations. Directors obligations. Pressure of creditors." Counsel for the bankrupt raised two preliminary issues which will deal with in turn. The first relates to the use of tax informationconcerning both the bankrupt\'s common law spouse, Patti AnnMcCool and the company that she is sole director andshareholder of, Clearsky Enterprises Ltd. Counsel for thebankrupt contends that Section 241 of the Income Tax Actprohibits disclosure of this information. Section 241 reads as follows: 241.(1) Except as authorized by this section, no official shall (a) knowingly provide, or knowingly allow to be provided, to any person any taxpayer information; (b) knowingly allow any person to have access to any taxpayer information; or (c) knowingly use any taxpayer information otherwise than in the course of the administration or enforcement of this Act, the Canada Pension Plan or the Unemployment Insurance Act or for which it was provided under this section. (2) Notwithstanding any other Act of Parliament or other law, no official shall be required, in connection with any legal proceedings, to give or produce evidence relating to any taxpayer information. (3) Subsections (1) and (2) do not apply in respect of (a) criminal proceedings, either by indictment or on summary conviction, that have been commenced by the laying of an information or the preferring of an indictment, under an Act of Parliament; or (b) any legal proceedings relating to the administration or enforcement of this Act, the Canada Pension Plan or the Unemployment Insurance Act or any other Act of Parliament or law of province that provides for the imposition or collection of tax or (3.1) The Minister may provide to appropriate persons any taxpayer information relating to imminent danger of death or physical injury to any individual. (4) An official may (a) provide to any person taxpayer information that can reasonably be regarded as necessary for the purpose of the administration or enforcement of the Act, the Canada Pension Plan or the Unemployment Insurance Act, solely for that purpose; The objecting creditor submits that the Supreme Court of Canada in Slattery (Trustee of) v. Slattery (1993) 21 C.B.R. (3d) 161 characterized disclosure of tax information in bankruptcy proceedings as being made in proceeding relating to the enforcement of the Income Tax Act and is authorized by S. 241(4)(a). agree. The bankrupt's attempt to distinguish Slattery from the facts in this situation is not convincing. Since the bankrupt admits that he is being supported by his common law spouse and has no independent source of income, the income of the common law spouse is factor to be considered in determining if the bankrupt can make payments to the trustee: (Re Kierdorf (1990), 80 C.B.R. (N.S.) 612 Ont. S.C.). Ms. McCool draws her income from Clearsky Enterprises Ltd. Therefore, disclosure of corporate tax information is also authorized by S. 241(4)(a). The issue concerning the disclosure of information relating to the history of payments of goods and services tax by Clearsky Enterprises Ltd. is not quite as clear cut. Paragraph 19 of the affidavit of James Douglas Cook details the payment history of GST by Clearsky Enterprises Ltd. from July, 1995 to the present. Counsel for the objecting creditor relies upon Section 295(5)(a) of the Excise Tax Act as authorization for disclosure of this information. The section reads: 295(5) An official may (a) provide such confidential information to any person as may reasonably be regarded as necessary for the purpose of the administration or enforcement of this Act, solely for that person. This is basically parallel section to S. 241(4)(a) of the Income Tax Act. Counsel for Revenue Canada contends that disclosure is in accordance with the principle in Slattery as this information is necessary to show the conduct and attitude toward creditors before and after bankruptcy. agree that disclosure of the corporate tax returns of Clearsky Enterprises Ltd. is necessary for income purposes in line with enforcement provisions as set out in Section 241(4)(a) of the Income Tax Act. I cannot acceptthat the principle and exemption contained in Section295(5)(a) of the Excise Tax Act would allow disclosure ofgoods and services tax remittances of Clearsky in theseproceedings. This is the discharge hearing relating to Nick J. Morin. The relevance of the tardiness in remitting goods and services tax of his common law spouse's company is questionable. cannot reason that Parliament intended the disclosure provisions to stretch beyond what would be reasonable for enforcement of the Income Tax Act and the Excise Tax Act. The information disclosed in paragraph 19 of theaffidavit of James Douglas Cook is confidential anddisclosure of this information is improper for theseproceedings. will not consider this information in my determination of the proper discharge order. In order to protect this information direct that the affidavit of James Douglas Cook be sealed with the proviso that it is not to be opened other than for purposes of appeals of this decision or order of the court. The second preliminary objection raised by thebankrupt relates to certain paragraphs of the affidavit ofJames Douglas Cook being based upon information and beliefas opposed to personal knowledge. The bankrupt submitsthat this is a final matter and Rule 319 of the Queen\'sBench Rules requires that affidavit evidence must be basedupon personal knowledge. The determination as to what may be final and what may be interlocutory is often difficult. In Re Fenrich (1985), 1985 CanLII 2814 (SK QB), 42 Sask. R. 117 (Q.B.) the court determined that final matter is one where the decision of the Court will finally dispose of the matter in dispute. If the decision is one that if determined one way will dispose of the matter, but determined another way will allow the action to continue, the matter is interlocutory. In this case, the bankrupt made an application for discharge which is being opposed by certain creditors. review of the possible orders that may be granted by the court under Section 172 of the Act indicate that the decision need not necessarily be of final nature. In any event, this objection was raised at the last minute. Counsel for the bankrupt could not remember the rule number other than he knew there was rule. am not convinced that these proceedings are final in nature and dismiss this objection. In dealing with the objections to the discharge theMichaluks allege that the facts under ss. 173(1)(a),173(1)(b), 173(1)(d), 173(1)(f) and 173(1)(m) exist. do not intend to deal with the allegations on an individual basis. Based upon the evidence and submissions I have notbeen satisfied that any of these facts have been proved. The main thrust of the Michaluk\'s submission relate tothe bankrupt putting them through unnecessary expenses by afrivolous and vexations defence to an action. The bankrupt denies this. He claims that his defence had merit and was based upon reasonable belief that the amounts claimed by the Michaluk's were high. The bankrupt also submits that he was advised by his lawyer not to defend the action which had been commenced in Manitoba by the Michaluks. He also stated that he would have liked to defend but had missed the time period in which to file defence. Based upon this evidence I cannot find that the factoutlined in Section 173(1)(f) has been proven. Having concluded that the Michaluks have not satisfied me that any of the facts they allege have been proven, feel obliged to state that the bankrupt is not someone that you would want to do business with. It was clear by his evidence that he holds himself blameless for his financial difficulties. He has convinced himself that it is everyone else's fault that he is in this situation. As for the Michaluks the bankrupt's evidence was that it was their own fault he stopped making payments because they didn't do what he wanted them to do. The "my way or the door way" attitude is nothing more than bullying tactic used by the bankrupt to justify his failure to honour an agreement. The objection by Revenue Canada relates to Section 173(1)(a) of the Act. The claim is for substantial amounts for G.S.T. which was collected but never remitted for the period January 1, 1991 to July 31, 1992. Red Bull Enterprises Ltd. closed the restaurant/gas bar in August, 1992. As director of Red Bull Enterprises Ltd., the bankrupt was made personally liable for the unpaid remittances of G.S.T. In addition portion of the claim is for income tax assessed in the 1991 taxation year. The bankrupt freely admits that all his resources were utilized to fund his business and more significantly, his on-going legal battle with the Department of Highways over the property the restaurant/gas bar was situated on. He also suggested that he left the bill paying to his accountant and since G.S.T. was new initiative at that time perhaps it was not handled well. Revenue Canada argues that the bankrupt's conduct with respect to his tax obligations brings the tax system and the bankruptcy process in disrepute. The bankrupt's deliberate choice to use funds impressed with trust for his own purposes should not be encouraged. On the other hand, counsel for the bankrupt submits his client's motivation was genuine. He was simply trying to keep his business afloat. This may be legitimate reason for payment of suppliers but as indicated previously, substantial portion of the funds were used to fund his various legal battles. have also stated previously that my impression of the bankrupt is the type of person who would walk away from his problems when things do not go his way. His justification being that if only everyone would have done what he felt was proper everything would have worked out. have concluded that this is not the type of attitude that is to be rewarded by an absolute order of discharge. The determination of the proper order is difficult. The objecting creditor recommends substantial conditional order over three year period. The trustee recommends conditional order for $1,750.00 which represents the value of non-exempt asset. The bankrupt, for the most part concurs with this recommendation. The bankrupt is in his early fifties and in good health. He is supported by his common law wife. He has not worked since 1992 and has voluntarily chosen, so he says, to have nothing to do with the business his common law wife now operates. While this may sound bit suspect, was not presented with any evidence to dispute this statement. The restaurant/gas bar appears to be going concern. It does provide reasonable source of income for family of four; the bankrupt, his common law spouse and their two young children. However, concur with the comments of the trustee that margin for profit in this type of business is generally thin. After carefully considering the circumstances relating to this bankruptcy have concluded that the recommendation of the trustee is reasonable and appropriate. The assignment occurred in December, 1995 and the bankrupt has been in bankruptcy for 28 months. In addition, there wasan investigation conducted by the R.C.M.P. as a result ofthe superintendent\'s investigation order. The conclusionwas that the evidence would not support a successfulprosecution. In conclusion there will be a conditional order ofdischarge requiring the bankrupt to pay $1,750.00 from anysource to the trustee. The bankrupt may pay this amount bymonthly instalments of $100.00 per month commencing May 1,1998 and continuing on the 1st of each succeeding monthuntil paid in full. Judgment interest will accrue on anypayment in arrears. The right of prepayment exists. Once paid an absolute order of discharge will issue. There will be no order as to costs. Registrar in Bankruptcy

Revenue Canada, which was owed $166,359.72 for goods and services tax for 1991-92 and $14,223.30 for 1991 unpaid personal income tax, and the Michaluks, who were owed $58,720.34 for a failed agreement and lease on their property in Manitoba, objected to the automatic discharge of the bankrupt. The bankrupt contended that s241 of the Income Tax Act prohibits disclosure of tax information concerning both the bankrupt's common law spouse and the company of which she was sole director and shareholder. The second preliminary issue raised was that portions of an affidavit were based upon information and belief as opposed to personal knowledge as required by Queen's Bench Rule 319 for a final matter. HELD: A conditional order of discharge issued requiring the bankrupt to pay $1,750 from any source to the trustee by monthly installments of $100 per month. Judgment interest would accrue on any arrears. 1)This discharge hearing related to Nick Morin. The relevance of the tardiness in remitting goods and services tax of his common law spouse's company was questionable. The information was confidential and disclosure would be improper for these proceedings. The principle and exemption contained in s295(5)(a) of the Excise tax Act would not allow disclosure of goods and services tax remittances in these proceedings. 2)None of the alleged facts raised pursuant to ss173(1)(a),(b),(d),(f) and (m) were proved. It was not proven as outlined in s173(1)(f) that the bankrupt put them through unnecessary expenses by a frivolous and vexatious defence to the action. The conclusion of the investigation conducted by the RCMP as a result of the superintendent's investigation order was that the evidence would not support a successful prosecution.

7_1998canlii13743.txt

QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2014 SKQB 144 Date: 2014 05 15 Docket: N.J. No. 12 of 2014 Judicial Centre: Saskatoon BETWEEN: HER MAJESTY THE QUEEN and ANTHONY ROBERT REGNIER Counsel: Andrea J. Rohrke for the Attorney General of Canada Anthony R. Regnier on his own behalf Blaine R. Beaven as friend of the court JUDGMENT ALLBRIGHT J. May 15, 2014 [1] Anthony Robert Regnier is charged in an indictment before this court with the offence: 1. THAT he, the said ANTHONY ROBERT REGNIER, on or about the 21st day of March, A.D. 2013, at or near Saskatoon, Saskatchewan, did unlawfully have in his possession controlled substance, to wit: methamphetamine for the purpose of trafficking, contrary to Section 5(2) of the Controlled Drugs and Substances Act [S.C. 1996, c. 19]. [2] Mr. Regnier’s preliminary inquiry was held in Provincial Court in Saskatoon on March 13, 2014, and he was committed to stand trial on the noted offence in the Court of Queen’s Bench for the Province of Saskatchewan with Queen’s Bench justice sitting alone. At the preliminary inquiry, Mr. Regnier was represented by Mr. Blaine Beaven of Scott Beaven Law Office. Mr. Beaven acted for Mr. Regnier as result of court appointment following an appropriate application by Mr. Regnier seeking such counsel. An endorsement on the Provincial Court documentation dated March 13, 2014 notes, “Mr. Beaven’s court appointment has expired after the preliminary hearing.” [3] Prior to the preliminary inquiry, case management conference was held from time to time dealing with Mr. Regnier’s matter, and as part of the case management discussions, the issue of Mr. Regnier being represented by court appointed counsel was canvassed. Ultimately Mr. Beaven agreed to accept such an appointment and as noted representing Mr. Regnier at the preliminary inquiry. [4] Mr. Regnier now applies in this court for court appointed counsel (in essence Rowbotham application, R. v. Rowbotham (1988), 1988 CanLII 147 (ON CA), 41 C.C.C. (3d) 1, 63 C.R. (3d) 113 (Ont. C.A.). The essence of his current application is that he wishes to have lawyer appointed by the court to represent him at his trial. [5] hearing was convened before me for the purposes of canvassing Mr. Regnier’s application, and on that occasion counsel, Andrea J. Rohrke, appeared on behalf of the Attorney General of Canada in opposition to Mr. Regnier’s request. (The remuneration for counsel appointed on behalf of Mr. Regnier following from such an application would be the responsibility of the Attorney General of Canada.) As part of her appearance and presentation, Ms. Rohrke requested leave to cross-examine Mr. Regnier on his financial circumstances as set forth in the application materials prepared on behalf of Mr. Regnier by the Saskatoon CLASSIC (Community Legal Assistance Services for Saskatoon Inner City Inc.) office. Such questioning occurred, and Mr. Regnier provided responses to the court generally dealing with his personal circumstances and his financial circumstances. Mr. Beaven requested the opportunity, as friend of the court, to ask additional questions of Mr. Regnier, and that request was granted. [6] The issue for me then to determine is whether such an appointment should be made by the court at this time, and if so, whether any conditions should be placed upon that appointment. [7] am appreciative of the efforts of the personnel at CLASSIC for the assistance which they have provided to Mr. Regnier in bringing the current application. am also appreciative of the assistance of Mr. Beaven in appearing as courtesy to the court on the occasion of the hearing. [8] The material before me satisfies me that Mr. Regnier has been denied Legal Aid and has failed on the final appeal. The assertion on his behalf is that his disability income is essentially what has disentitled him from receiving services from Legal Aid Saskatchewan; however, he does not have sufficient resources to hire counsel. His disability benefits are received from the Saskatchewan Teachers’ Federation, and they are the entirety of his income. The submission proceeds; that after paying for his mortgage and other related bills, he is left with very little disposable income. Further, it is asserted on behalf of Mr. Regnier that he does not feel capable of representing himself, as he has substance addiction problem which impairs his perception and memory. Finally, the Crown on complex matter is seeking jail sentence ranging from 18 months to years incarceration. [9] The submission prepared by supervising lawyer Trevor Oleniuk of CLASSIC concludes with the proposition that Mr. Regnier requires court appointed counsel in order to have fair trial pursuant to ss. and 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) (the “Charter”) as set forth in R. v. Rowbotham. [10] Mr. Regnier has filed an affidavit in support of his application, and the contents of that affidavit parallel the grounds set forth in the formal application and the background articulated therein. [11] Mr. Regnier’s monthly income is $2,500 per month, and as he observes, that exceeds the Legal Aid eligibility level of $985 per month. [12] Set forth in Mr. Regnier’s affidavit are the following additional relevant facts: He has suffered from serious addiction to methamphetamine for over 10 years. His addiction is serious, and it has had an immense impact on his everyday life. He is struggling to deal with his addiction and attends counselling and has regular appointments with psychiatrist. His addictions have the practical effect of impairing his memory and his ability to concentrate. He believes this would negatively affect his ability to pay attention during court proceedings and would make it difficult for him to represent himself on the matter. He is nervous to appear in court and finds the process “very overwhelming” and that such impact further impairs his ability to represent himself. He understands the charges against him are serious and their consequences would be severe. He does not feel able to respond to the serious charges which he is facing. He has no knowledge of legal process or training, and in earlier court attendances he has found that he is unable to understand the language used. He is consequently unable to follow what is happening, and, therefore, at the end of the proceedings is also unaware of what took place and is unaware of what consequences that may have for him. If he is unsuccessful with the application for court appointed counsel, he will likely simply plead guilty to his charges to get it over with, as he would not be able to understand the court proceedings in meaningful way to defend himself. His income is entirely from disability benefits from the Saskatchewan Teachers’ Federation, and he receives $2,500 per month total. His estimate of his income, expenses and assets leaves him in position where the cost of retaining legal counsel in the matter would be completely unaffordable to him. Finally, it is his understanding that private lawyer would charge him thousands of dollars up front as retainer, and as he has no savings and very little disposable income, he cannot afford to retain lawyer. [13] On questioning by Ms. Rohrke, it was demonstrated that Mr. Regnier has significant amount of equity in the home which he owns. While there are financial encumbrances against that home, nonetheless there is the equity which is there, and as understand his response to Ms. Rohrke’s questions, there would appear to be no reason why he could not obtain some funds from the equity in his home. [14] In addition, Ms. Rohrke inquired of Mr. Regnier as to his transportation cost of $300 per month as set forth in his financial information. He is apparently not driving vehicle, and it is her view that these are funds which could be made available to him for the purposes of retaining counsel. In addition, his financial information suggests his residence is worth $200,000 with $75,000 mortgage, leaving, as indicated, equity of approximately $125,000. [15] The following background facts are significant as prelude to the formal Rowbotham analysis. [16] In Provincial Court the application for court appointed counsel was first heard on July 31, 2013 before Judge Whelan. The matter was adjourned. The matter was adjourned so that the accused could inquire into whether he could obtain loan through court services to fund his defence and also so the accused could look into mortgage or loans against his home, which has significant amount of equity. [17] The continuation of the original application was heard on August 29, 2013, at which time the matter again came before Her Honour Judge Whelan. At that time Judge Whelan seized herself with the file. It would appear that Mr. Regnier had not by that time consulted any banking institutions regarding loan or line of credit against his property, nor had he apparently looked further into his financial options. At that time Judge Whelan, in any event, concluded that in order for the matter to move forward in timely fashion and in the absence of the accused having any “disposable assets” at that time that it would be appropriate to grant the accused time limited order. Such an order for six months was made on the understanding that Mr. Regnier would make attempts to sell his motorcycle, vehicle and other assets in addition to inquiring into whether he could obtain bank loan or home equity line of credit. [18] The application again came before Judge Whelan on November 19, 2013, at which time Mr. Regnier was seeking an extension of his court appointed counsel. Judge Whelan determined that the application was premature as her order of August 29, 2013 provided number of conditions which the accused had to complete before she would consider an extension. At that time Mr. Regnier had apparently not complied with any of those conditions. [19] The application was again brought before Judge Whelan on February 27, 2014. The accused once again had failed to complete any of the steps outlined by Judge Whelan in her previous order and had not made any attempt to inquire into loan. Counsel for Mr. Regnier advised that Mr. Regnier had an appointment with the bank the next day; however, the judge was unwilling to provide an extension. Ultimately the court appointed counsel order was extended to March 13, 2014 so that the accused would have representation for the preliminary inquiry; however, no further order was granted beyond that. ROWBOTHAM ANALYSIS [20] In this instance is it clear to me that Mr. Regnier has still not undertaken any of the actions required by Judge Whelan during the time when she case managed the matter. In essence, Mr. Regnier comes before this court in the same position as he was on the earlier occasion without having attempted in any way to utilize his personal resources to obtain counsel. Nonetheless, he seeks an order for court appointed counsel for the purposes of conducting his defence on the indictment before this court. [21] The Ontario Court of Appeal in R. v. Rowbotham, supra, set forth protocol for an accused individual to pursue in seeking court appointed counsel in cases not falling within particular provincial Legal Aid plan. Rowbotham references ss. and 11(d) of the Charter, those sections which guarantee an accused fair trial in accordance with the principles of fundamental justice. The court in Rowbotham recognizes that there will be appropriate circumstances which require that funded counsel be provided to an accused; where that accused wishes counsel but is legitimately unable to pay lawyer, and secondarily, where representation of the accused is essential to fair trial. [22] Since the authorship of R. v. Rowbotham, the protocol has widely been adopted throughout Canada in most, if not all, jurisdictions where the particular provincial Legal Aid scheme is not prepared to provide counsel to an accused individual. [23] As key ingredient of the protocol, the Ontario Court of Appeal concluded that in circumstances where an accused’s fair trial interests are impaired for want of legal representation, that an appropriate remedy is stay of proceedings under s. 24(1) of the Charter, in the event the prosecution insists on proceeding with trial in breach of the accused’s Charter right to fair trial. [24] The protocol requires initially that an indigent accused is required to apply for provincially funded Legal Aid under the appropriate authority. Only in the event of the unavailability of Legal Aid as counsel for an accused is the court required to consider whether the court itself should make an order appointing counsel. [25] There are two germane criteria which an accused must demonstrate in order to qualify for court appointed counsel. The first criterion is that the accused is unable to afford counsel, in other words that the accused is indigent. The second criterion involves consideration of the complexity of the legal issues involved in the charge or charges against the accused, particularly including an assessment of the possible sentence to be imposed. [26] In this instance propose to deal firstly out of turn with the second criterion. [27] I am satisfied from the information and material placed before me that Mr. Regnier is probably not capable of conducting his own defence in light of the personal issues which he is facing and his methamphetamine addiction. The subtle but critical issue of the difference between possession of substance for the purposes of trafficking and simple possession are probably key to Mr. Regnier’s defence, and this difference requires legal analysis of the principles differentiating the two potential offences, again those being possession for the purposes or simple possession. [28] The information further satisfied me that Mr. Regnier has demonstrated an inability to closely follow the proceedings in which he is involved, particularly referencing the preliminary inquiry. [29] In addition, on the second criterion, am advised that the Crown will be seeking significant period of incarceration in the event that Mr. Regnier is found guilty of the offence of possession for the purposes. A combination of these factors on the second criterion lead me to conclude that it would most certainly be beneficial to Mr. Regnier to have counsel represent him, particularly on the fundamental premise that in my view he is not capable of adequately representing himself. [30] However, the second criterion practically comes into play only upon the court’s finding of an accused such as Mr. Regnier being indigent. [31] On the point of indigency, am not persuaded that Mr. Regnier has shown that he is indigent as such is contemplated in R. v. Rowbotham. [32] In considering the financial situation of Mr. Regnier, am entitled to consider not only his statement of his income versus his expenses, but am entitled to consider any equity in real property which is available to him. In this instance, Mr. Regnier has monthly income of approximately $2,500 and his demonstrated expenses in essence consume the $2,500. Upon Mr. Regnier being questioned regarding his financial circumstances, am satisfied that there are some smaller items in his monthly expenses, such as transportation, which he either does not consistently incur or which realistically he does not need to incur. In my view, some of these expenditures could be used to make periodic payments to counsel to represent him. Further, am satisfied that Mr. Regnier has significant amount of equity in his home, by his own financial statement that equity being approximately $125,000. observed that throughout the entire process that Mr. Regnier has been before the courts, whether it is Provincial Court or the Court of Queen’s Bench, that he has made no efforts to attempt to secure funding utilizing this significant equity in his home. Judge Whelan during the Provincial Court proceedings had urged this upon Mr. Regnier; however, he failed to undertake what she requested of him during that process, and it was ultimately only as result of Judge Whelan prudently not wishing the matter to be delayed that she made limited appointment of counsel on behalf of Mr. Regnier. [33] At this stage Mr. Regnier comes before the court still having made no such inquiries. If Mr. Regnier had made such substantial inquiries and attempted to secure alternate financing and been met with lack of success, he would have been in position to present these efforts to the court, and would have been in different position in assessing his ability to fund his own defence. If no financial institution was prepared to provide him with funding utilizing his equity as security, that might well cast different light upon the question of his indigency. However, as noted, that has not occurred. [34] The matter of indigency was considered in R. v. Malik, 2003 BCSC 1439 (CanLII), 111 C.R.R. (2d) 40. At para. 33 the court addresses indigency in the following fashion: 33 ... indigency is an inability to pay or contribute to legal fees despite best efforts to prioritize payment of those legal fees by saving, borrowing or otherwise raising funds for such payment, and consequently being incapable of retaining counsel in ample time to ensure fair trial. [35] In addition, the court in Malik noted that the accused’s financial circumstances must be extraordinary, and it is not sufficient to prove simply difficult circumstances. [36] The court in Malik identified items of financial information which are to be presented by an accused, and they include: (a) extraordinary financial circumstances; (b) attempts to obtain funds to retain counsel; (c) prudence with expenses and prioritization of payment of his legal fees; (d) efforts to save for the cost of counsel and to raise funds by earning additional income; (e) he has made all reasonable effort to use his assets to raise funds, for example by obtaining loans; [emphasis added] (f) whether he is in position to pay some of the costs of counsel; (g) the income and assets of his spouse and family. [37] Some of the items in this canvass are not relevant to Mr. Regnier, however, some are. For example, Mr. Regnier’s financial statement does not demonstrate “extraordinary financial circumstances”, nor has he demonstrated “prudence with expenses and prioritization of payment of his legal fees”. [38] am appreciative that Mr. Regnier is unable to earn additional income from other employment; however, significantly he has not demonstrated “that he has made all reasonable effort to use his assets to raise funds, for example by obtaining loans”. [39] In this instance the Attorney General has acknowledged recognition that in assessing financial eligibility, the court is not bound by the Legal Aid financial criteria, and in essence the court may be more flexible in its assessment. An example of this is that in considering financial eligibility, the court can also take into account the complexity of the case which is balanced against the accused’s financial resources. [40] In considering all of the factors surrounding Mr. Regnier’s financial circumstance and the potential cost of trial, I am of the view that Mr. Regnier has not demonstrated that he is indigent. His financial circumstances are significantly in excess of the baseline criterion for Legal Aid in Saskatchewan, and am not persuaded that he has demonstrated the requisite circumstance of being indigent. Accordingly, in applying the Rowbotham protocol to the application before me, while Mr. Regnier meets the second criterion, he does not in my respectful view meet the first criterion. [41] Accordingly, Mr. Regnier’s application for court appointed counsel is dismissed. [42] appreciate that Mr. Regnier will require some time in order to secure counsel or make arrangements to put in place financing arrangements with counsel, and, therefore, it is important to provide reasonable window of time for Mr. Regnier to start to make such arrangements. I, therefore, direct that Mr. Regnier’s pre-trial in this matter is to be scheduled for Friday, July 25, 2014 at 10:00 a.m., and direct that Mr. Regnier is to be personally present on that occasion unless he has retained counsel to represent him, in which case counsel may appear on his behalf. [43] In the normal course, at that pre-trial conference in terms of setting trial date, such trial, with the court’s current scheduling requirements, would be set for some months in the future in any event. The cumulative effect of the time frame from the date of this order through to the date of potential trial will also enable Mr. Regnier, if he so chooses, to attempt to make arrangements with counsel making periodic payments over the ensuing months towards his legal fees. [44] Order accordingly. J. G.N. ALLBRIGHT

The Court dismissed the application. It found that the accused was not capable of representing himself but that the accused had not shown that he was indigent.

c_2014skqb144.txt

QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2007 SKQB 419 Date: 2007 11 08 Docket: Q.B.M. 97/1992 Judicial Centre: Regina BETWEEN: PETER MICHAEL MALOWANY and SHERRY LYNN MACK Counsel: Michael S. Scott for Peter Michael Malowany W. Timothy Stodalka for Sherry Lynn Mack FIAT McINTYRE J. November 8, 2007 [1] The child support order of the Provincial Court of December 11, 1991 was registered in this Court January 27, 1992, pursuant to s. of The Reciprocal Enforcement of Maintenance Orders Act, 1983, S.S. 1983, c.R-4.1. Under that order the petitioner was to pay ongoing child support to the respondent of $300.00 per month. The parties subsequently entered into an agreement of January 30, 1992 whereby the parties agreed the $300.00 per month would be without tax ramifications to either party. [2] petition has been issued pursuant to The Children’s Law Act, 1997 S.S. 1997, c.C-8.2 as am. and The Family Maintenance Act, 1997, S.S. 1997, c.F-6.2 as am. The petitioner seeks an interim order setting his ongoing child support obligation as well as addressing the arrears. The petitioner says he has been paying at a rate that is greater than his legal obligation. Arrears have accumulated and he seeks to expunge them. [3] The petitioner is part of family farm operation. He supplements his farm income with working for part of the season at local sporting retail store. He owns home in Regina and has room mate to share expenses. This generates some rental income. In reviewing the petitioner’s income tax returns the farming operation has shown loss in each year. His employment income has been $20,640.00 in 2006; $21,481.00 in 2005 and $23,382.00 in 2004. The three year average would be $21,834.00. The rental income is said to be $5,100.00 per year. In 2003 the petitioner’s employment income was $19,961.00. [4] As of September 26, 2007 the petitioner has arrears of $2,935.67. The petitioner takes the position that he has overpaid by approximately $6,300.00 over the past four years if one compares his employment income to the corresponding table support under the Federal Child Support Guidelines (SOR/97-175, as am.) The Maintenance Enforcement Office is holding funds obtained through federal garnishment. [5] The respondent takes the position that the petitioner’s line 150 income does not reflect his ability to pay. The respondent notes that when the petitioner recently sought financing for the purchase of half ton truck he indicated his income was $5,100.00 per month. Counsel noted that through use of the optional inventory adjustment the petitioner is able to average out his farm income. Counsel also refers to expenditures on credit cards which would suggest the petitioner is able to eat out at restaurants on regular basis. Counsel suggests that the petitioner could in fact work full time and earn an income of approximately $40,000.00 and child support should be fixed on that basis. [6] Counsel for the petitioner acknowledges that the child support obligation should be determined on the basis of the petitioner’s employment income. In terms of ongoing support it is appropriate to determine the petitioner’s income on the basis of the three year average of his employment income being $21,834.00 and add to that the $5,100.00 in rental income for total of $26,934.00. The petitioner is actively engaged in farming. He pursues reasonable off farm income. In the absence of something further I am not prepared to impute income. The petitioner, having been found to have an income of $26,900.00 shall pay to the respondent child support of $221.00 per month commencing June 1, 2007 payable on the 1st of each month thereafter. [7] In terms of the arrears Wurmlinger v. Cyca 2003 SKQB 152 (CanLII); (2003), 231 Sask. R. 282 (Sask. Q.B.) sets out the factors to be considered when determining whether arrears should be rescinded. The factors are: 1. The nature of the maintenance order sought to be varied; 2. The ongoing financial capacity of the payor; 3. The ongoing needs of the child; 4. Any unexplained delay in enforcing arrears; 5. Any explanation as to the delay in seeking relief from the arrears; 6. Whether enforcement of payment of arrears would cause hardship to the payor; and 7. The payor’s ability to pay the arrears at the time they were incurred. [8] It is not clear when the arrears arose. It appears that by early 2006 there was $1,300.00 in arrears. During the balance of 2006 and 2007 the arrears increased. Delay in enforcing arrears or seeking relief is not significant issue in the circumstances. Enforcement of payment of the arrears will not cause any particular hardship to the payor. There is money sitting in the Maintenance Enforcement Office as result of federal intercept. [9] In terms of the payor’s ability to pay at the time the arrears accrued the petitioner says he was paying in excess of his legal obligation. It is true that if one looked to his employment income the table amount would be approximately one-half of the $300.00 per month non-taxable that the petitioner agreed to pay back in 1992. However one cannot ignore the fact that in 1992 the payor agreed to pay $300.00 per month non-taxable. He did nothing to seek to change this obligation in all of the intervening years. I am also cognizant of the fact that the petitioner’s farming operation affords the petitioner an opportunity to manage his financial affairs. By reporting a farm loss each year the petitioner in fact pays less tax on his employment income than he would otherwise pay. In the circumstances I am not prepared to rescind any of the arrears. [10] On the issue of costs consider success to have been divided. There will be no order as to costs. J. D.E.W. McIntyre

In January 1992, the parties agreed the petitioner would pay child support of $300 per month and that it would be without tax ramifications to either party. As of September 2007, the petitioner has arrears of about $2,900. He now applies to set his child support obligation and deal with the arrears. The petitioner claims he has been paying too much in child support under the Guidelines. HELD: 1) In terms of ongoing support, it is appropriate to determine the petitioner's income on the basis of the three year average of his employment income being $21,834 and add to that the $5,100 in rental income for a total of $26,934. The petitioner is actively engaged in farming. He pursues reasonable off farm income. In the absence of something further, the Court was not prepared to impute income. He shall pay child support of $221 per month. 2) In terms of the payor's ability to pay at the time the arrears accrued, the petitioner says he was paying in excess of his legal obligation. It is true that if one looked to his employment income the table amount would be approximately half of the $300 per month non-taxable that the petitioner agreed to pay back in 1992. However, one cannot ignore the fact that he agreed to pay it. He did nothing to seek to change this obligation in all of the intervening years. The petitioner's farming operation affords the petitioner an opportunity to manage his financial affairs. By reporting a farm loss each year, the petitioner in fact pays less tax on his employment income than he would otherwise pay. In the circumstances the Court was not prepared to rescind any of the arrears.

8_2007skqb419.txt

J. Date:19981112 Docket: CA 146089 NOVA SCOTIA COURT OF APPEAL Bateman, Flinn and Cromwell, JJ.A. BETWEEN: HALIFAX REGIONAL SCHOOL BOARD and NOVA SCOTIA UNION OF PUBLIC EMPLOYEES, LOCAL Respondent John C. MacPherson, Q.C. and Justin Kimball for the Appellant Ronald A. Stockton and Nancy L. Elliott for the Respondent Appeal Heard: September 29, 1998 Judgment Delivered: November 12, 1998 THE COURT: Appeal allowed per reasons for judgment of Cromwell, J.A.; Bateman and Flinn, JJ.A. concurring. CROMWELL, J.A.: I. Introduction: Disputes arising from collective agreements must be resolved through the grievance and arbitration process. The main issue here is whether this principle applies to bar the union's lawsuit in this case. II. Overview of the Facts and Proceedings: There have, as yet, been no findings of fact in this case. The following are assumed to be true for the purpose of these proceedings. The appellant is an employer and the respondent union. By successorship, they are parties to collective agreement signed on July 22, 1994 with effect from January 1, 1994 to December 31, 1996. The collective agreement establishes employee salaries for that period, with annual adjustments on January in each year. The successorship is not relevant to the issues on appeal and for convenience will refer to the parties as the employer and union as if they were the original parties to the collective agreement. Shortly before the agreement was signed, Bill 52, the Public Sector Compensation (1994-97) Act, S.N.S. 1994, c. 11 was passed and given Royal Assent. It rolled back and froze public sector salaries. The employer and the union seemed to have adverted to the impact of this legislation on the collective agreement. On the same day it was signed, the Chairman of the employer wrote to the President of the Union. The letter confirmed that the wage increases provided for in the agreement would be paid to employees as lump sum following the expiration of the legislated wage freeze. This was expected to occur at the end of October of 1997. In November of 1997, after the wage freeze had expired as expected, the Union asked for payment of the lump sum to its members. The employer refused because it thought the payment would contravene the Act. Faced with this refusal, the Union sued the employer in the Supreme Court of Nova Scotia. It claimed the lump sum due to its members as set out in the letter or, alternatively, damages for negligent misrepresentation. The employer applied to Cacchione, J., in Chambers, to strike out the Union\'s statement of claim on the ground that the union\'s claims were within the exclusive jurisdiction of an arbitrator. The Chambers judge dismissed the application. The employer appeals, seeking leave for this purpose. III. The Chambers Judge's Decision The Chambers judge's reasoning in dismissing the employer's application to strike out the union's statement of claim was this. In his view, it was not clear whether the Court had jurisdiction and there were several factual questions relevant to that issue which could not be explored on an application under Rule 14.25. The learned Chambers judge concluded: ..... There is an issue of whether the letter of July 22"d, 1994 is an ancillary document. There is an issue as to whether or not that letter, if it is an ancillary document, forms part of the collective agreement. The letter in question must be examined and determination must be made to see whether it is part of the collective agreement. This is not in my view an issue that can be addressed on an application such as the one before me. Before this statement of claim is struck out there must be determination of whether the plaintiff's claim is one that is arbitrable. This, in my view, would best be achieved by having full exploration of the circumstances surrounding the creation of the document through the discovery process. IV. Issues and Positions of the Parties: The parties raise two procedural issues and two substantive issues on appeal. The substantive issues are these. First, the employer argues that the essential character of the Union's complaint arises under the collective agreement between the parties. Therefore, says the employer, following the decisions of the Supreme Court in Weber v. Ontario Hydro, 1995 CanLII 108 (SCC), [1995] S.C.R. 929 and New Brunswick v. O'Leary, 1995 CanLII 109 (SCC), [1995] S.C.R. 967, the matter is within the exclusive jurisdiction of an arbitrator and the court action should be dismissed. Second, the employer submits that, if the dispute does not arise under the collective agreement, there can be no separate contract concerning salaries between these parties outside the collective agreement and therefore no claim in law can be made. The employer relies on McGavin Toastmasters Ltd. v. Ainscough, 1975 CanLII (SCC), [1976] S.C.R. 718. The union argues that the issues raised in the action are outside the Weber principle because the dispute between the parties is not covered, expressly or inferentially, by the collective agreement. Neither is the action precluded by the McGavin principle which, the union argues, deals only with private negotiations between the employer and individual employees. The procedural issues relate to whether the employees application was appropriately brought under Rule 14.25 and whether certain affidavit evidence should have been admitted. The union submits that the Chambers judge was right to decide that the issues in the employer's application are not properly put before the court under Rule 14.25 because the question of the Court's jurisdiction requires the resolution of factual, as well as legal, issues. The action is not, in its submission, clearly unsustainable in law. The employer disputes this position and submits that an affidavit filed by the union on the application should not have been received by the Chambers judge. V. Analysis: Both the provisions of the parties' collective agreement and of the Trade Union Act, R.S.N.S. 1989, c. 475, establish that there are two aspects of the arbitrator's role. The broader aspect is, of course, the arbitrator's authority to make final and binding determination of all differences between the parties concerning the interpretation, application or administration of the collective agreement. The narrower aspect is the arbitrator's power, granted in the collective agreement and confirmed by the Act, to determine whether matter submitted to arbitration is arbitrable, that is, whether it is difference concerning the interpretation, application or administration of the collective agreement. The question of the court's jurisdiction implicates both the broad and narrow aspects of the arbitrator's authority. The parties to this appeal have focused their arguments mainly on the broader aspect of whether the allegations in the union's statement of claim relate to dispute arising under the collective agreement. One should not lose sight, however, of the narrower aspect, as both the collective agreement and the Act make it clear that the arbitrator also has the authority to determine the threshold question of whether the difference is arbitrable. For reasons will develop below, think this narrower aspect is sufficient to deal with this case. The question of whether this dispute is one that concerns the interpretation, application or administration of the collective agreement should be left, initially at least, to an arbitrator. There are four considerations that support this conclusion, and will briefly describe each of them. (a) The text of the collective agreement and the Trade Union Act The collective agreement between the parties contains an arbitration provision. It requires submission to arbitration of differences between them relating to the interpretation, application and administration of the collective agreement, including the question as to whether matter is arbitrable. Specifically, Articles 23.02 and 24.03 provide: 23.02 Where difference arises between the Board and any employee covered by this agreement, relating to interpretation, application or administration of this agreement, including any questions as to whether matter is arbitrable or where an allegation is made that this agreement has been violated or whenever such employee is suspended or dismissed for cause, such difference, allegation, suspension or dismissal being hereinafter referred to as the "grievance", the following procedure shall apply: [Here the agreement sets out the steps in the grievance procedure.] STEP 4: ARBITRATION In the event that the Board Grievance Committee does not provide redress satisfactory to the Grievance Committee or the Union within twenty (20) days after the date of such meeting or within such longer period of time as the parties may mutually agree upon, the Union may, after giving five (5) working days' notice to the Board, require that the grievance be submitted to arbitration. 24.03 The arbitrator shall determine the dispute and shall, where possible, render decision within twenty(20) working days from the date of the hearing, and his decision shall be final and binding upon the parties and upon any employee affected by it. These provisions are reinforced by the Trade Union Act which makes it clear that final and binding settlement by arbitration is an essential aspect of every collective agreement. The Act, like the collective agreement, specifies that an arbitrator has power to determine any question as to whether matter referred to arbitration is arbitrable. The most relevant sections are these: 42 (1) Every collective agreement shall contain provision for final settlement without stoppage of work by arbitration or otherwise, of all differences between the parties to or persons bound by the agreement or on whose behalf it was entered into, concerning its meaning or violation. (3) Every party to and every person bound bar the agreement, and every person on whose behalf the agreement was entered into, shall comply with the provision for final settlement contained in the agreement 43 (1) An arbitrator or an arbitration board appointed pursuant to this Act or to collective agreement (c) has power to determine any question as to whether matter referred to him or it is arbitrable; (emphasis added) conclude from this examination of the text of the collective agreement and the relevant statutory provisions that, where there is doubt about whether matter is subject to the arbitration clause, an arbitration is the place of first resort to determine that threshold issue. (b) The centrality of arbitration to the collection bargaining relationship Consideration of the place of arbitration in the overall scheme of collective bargaining labour relations reinforces the conclusion drawn from the text of the agreement and the provisions of the Act. The statutory requirement for submission to arbitration is pervasive in Canadian labour legislation: Donald J.M. Brown and David M. Beatty, Canadian Labour Arbitration (3d, updated 15 August, 1998) at s. 1:1100. The resolution of disputes by arbitration has been viewed as quid pro quo for the prohibition against strikes and lock outs during the currency of the collective agreement: George W. Adams, Canadian LabourLaw (3d, updated May, 1998) at s.12.140. The arbitration process is thus central feature of the collective bargaining relationship. The Supreme Court of Canada has both recognized and emphasized the importance of this point. In St. Anne Nackawic Pulp Paper v. Canadian Paper Workers Union, Local 219, 1986 CanLII 71 (SCC), [1986] S.C.R. 704 Estey, J., for the Court, said at p.717-718: The legislature created the status of the parties 'to collective aareementl in process founded upon solution to labour relations in _a wholly new and statutory framework at the centre of which stands new forum the contract arbitration tribunal The collective agreement establishes the broad parameters of the relationship between the employer and his employees. This relationship is properly regulated through arbitration and it would. in aeneral subvert both the relationship and the statutory scheme under which it arises to hold that matters addressed and governed by the collective agreement may nevertheless be the subject of actions in the courts at common law. (emphasis added) Recognizing that arbitration is central to the whole scheme of collective bargaining labour relations, the Supreme Court of Canada has repeatedly made it clear that the exclusive jurisdiction of labour arbitrators must be respected by the courts. classic expression of this view is found once again in St. Anne-Nackawic Pulp and Paper Co v. C.P.U. Local 219, supra. Estey, J. for the Court said 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) 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. 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. 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. (c) The nature of the inquiry Under Weber and O'Leary, the question of whether the subject-matter of the dispute falls within the collective agreement is to be approached by determining the dispute's "essential character": see Weber at p. 956. This determination of the "essential character" of the dispute requires detailed analysis of the facts and the provisions of the particular collective agreement. While in many cases, the essential character will be clear, in others it will be less obvious. As McLachlin, J. said in Weber, it is impossible to categorize the classes of case that are within the exclusive jurisdiction of the arbitrator: at p. 957. The wisdom of this remark has been borne out by the significant volume of judicial and arbitral decisions spawned by Weber and O'Leary. While the principles for determining the limits of court jurisdiction are clear, they are far from self-applying. Defining the boundary between court and arbitral jurisdiction frequently requires not only detailed attention to the facts but also careful attention to and sensitivity for the broader labour relations context. As noted above, grievance arbitration is key component of the collective bargaining regime. The definition of its scope and limits is therefore equally central to that scheme. This consideration is particularly important in this case. Of course, whether matter is arbitrable and whether the court has jurisdiction with respect to it are not identical questions. The answer to one does not invariably provide an answer to the other. However, the question of arbitrability and the reasons dispute is or is not arbitrable are highly relevant to the issue of the court's jurisdiction. Regardless of what the scope may be of judicial review of the arbitrator's decision in such case, the need for close attention to the factual and labour relations nuances of the particular case suggest that there is much to be said for allowing an arbitrator to deal with the matter initially. The concern about no remedy The Weber decision does not simply limit the jurisdiction of courts; it also takes an expansive view of the jurisdiction of arbitrators. McLachlin, J., referred to these two aspects as "correlative". She said in Weber that the exclusive jurisdiction model "... conforms to pattern of growing_ judicial deference for the arbitration and grievance process and correlative restrictions on the rights of the parties to proceed with parallel or overlapping litigation in the courts (emphasis added) (at p. 959); In Weber, for example, it was held that arbitrators have the power and the duty to apply common law and statutes including the power to grant Charter remedies where the legislation empowers the arbitrator to hear the dispute and grant the remedies claimed: at p. 958 and p. 963. 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 952-3). 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), 147 D. L. R. (4t") 521 (Man.C.A.); Callow v. West Vancouver School District No. 45 (1997), 1997 CanLII 4147 (BC CA), 29 B.C.L.R. (3d) 199 (B.C.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. However, the collective agreement does not set out the parties' rights exhaustively, and therefore exclude, court jurisdiction in all situations. McLachlin, J. in Weber refers to two categories of such cases. Actions between employees and employers which do not "expressly or inferentially arise out of the collective agreement" are not barred, and, in addition, courts "possess residual jurisdiction based on their special powers...". (Weber at p. 957.) Underlying both is natural concern that no one, absent compelling reasons, should be left with right but no remedy. This aspect was emphasized by the Court in its decision in Brotherhood of Maintenance of Way Employees Canadian Pacific System Federation v. Canadian Pacific Ltd., 1996 CanLII 215 (SCC), [1996] S.C.R. 495. That case upheld the jurisdiction of the Supreme Court of British Columbia to issue an interim injunction restraining the employer from implementing new work schedule pending the hearing of grievance challenging it. McLachlin, J., writing for the Court, stated that the "governing principle ... is that notwithstanding the existence of comprehensive code for settling labour disputes, where no adequate alternative remedy exists the courts retain residual discretionary power to grant interlocutory relief.. ": at p. 499. This case addresses specifically the difficult issue of when an absence of relevant provisions in the collective agreement is to be taken as excluding rights and remedies other than those specifically set out. McLachlin, J. repeats and clarifies her premise in Weber that either an arbitrator or the court should have jurisdiction over the substance of the complaint, stating at p. 501: The employer further argues that the dispute resolution mechanism provided by the Code is exclusive, and bars any other remedies. The court, it says, disregarded the comprehensive contractual and statutory scheme designed to govern all aspects of the relationship of the parties in labour dispute. The difficulty with this argument lies in the assumption that the Code covers all aspects of any labour dispute. In this case, the fact is that the Code did not cover all aspects of the dispute. No matter how comprehensive statutory scheme for the regulation of disputes may be. the possibility always remains that events will produce difficulty which the scheme has not foreseen It is important in these circumstances that there be tribunal capable of resolving the matter, if leaal rather than extra-legal, solution is to be found. It is precisely for this reason that the common law developed the notion of courts of inherent jurisdiction. If the rule of law is not to be reduced to patchwork, sometime thing, there must be body to which disputants may turn where statutes and statutory schemes offer no relief. (emphasis added) There are clearly some circumstances in which matter is neither arbitrable nor within the jurisdiction of the courts. The courts, however, should not be anxious to reach such conclusion and generally will not do so unless persuaded that the collective agreement's provisions are exhaustive concerning the dispute. The words of McLachlin, J. in C.P., supra are particularly apt, and repeat them: .... the possibility always remains that events will produce difficulty which the scheme has not foreseen. It is important in these circumstances that there be tribunal capable of resolving the matter ". (at p. 9) In this case, there has been no determination by an arbitrator of whether the complaint set out in the statement of claim is arbitrable. 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. (e)Summary 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. have considered Mendoza v. St. Michael's Centre Hospital Society [1998] B.C.J. No. 914 (S.C.). Tysoe, J. concluded that the court was in "as good position as an arbitrator to determine whether matter is arbitrable" and that it would only increase cost to decide otherwise: at para. 15. note, however, and with respect, that the learned judge's reliance on Weber for this conclusion is misplaced given that in Weber, the matter had been grieved and settled. Moreover, this approach is inconsistent with Weber's emphasis on the exclusive nature of arbitral jurisdiction and seems to me to be fundamentally at odds with the considerations have outlined earlier. On this aspect, find Pilon v. International Minerals and Chemical Corp. (1996), 1996 CanLII 1178 (ON CA), 31 O.R. (3d) 210 (C.A.) more persuasive. The Court in Pilon characterized the issue as whether the dispute between the parties was arbitrable and held that the matter should proceed to arbitration: at 214-5. This view seems to me, with respect, to be the more consistent with all of the considerations have discussed. This is not to say that submission to arbitration is invariably pre­condition to the court ruling on its own jurisdiction. There may be cases in which, for example, the parties agree that submission to arbitration is pointless. would not attempt here an exhaustive list of such cases. would say, however, that 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. Conclusion The Chambers judge refused to decline jurisdiction over the action. In his view, it is essential first to determine whether the dispute is arbitrable. This, in turn, requires full exploration of the circumstances in the discovery and perhaps even the trial process. With respect, these considerations seem to me to support the opposite conclusion for the reasons have attempted to summarize. 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. The learned Chambers judge erred in allowing the court action to continue. am also of the view that this more limited preliminary determination, which depends only on the allegations in the statement of claim, the relevant provisions of the collective agreement and the Trade Union Act, is properly made under Rule 14.25. Having reached these conclusions, it is not necessary for me to consider the other issues raised on the appeal. The remaining question is whether the action should be dismissed or stayed. Both courses are available under Rule 14.25 and authority can be found for both courses of action. Cases raising similar issues have been dismissed when the Court concluded that the dispute arose under the collective agreement: see, for example: New Brunswick v. O'Leary, supra and Pilon v. International Minerals and Chemical Corp., supra. However, stays have been entered in similar circumstances in number of other cases: see e.g., Bhairo v. Westfair Foods Ltd, supra and Piko v. Hudson's Bay Co., supra; Vyas v. University of Calgary (1985), 188 A.R. 344 (Q.B.); McCartney v. Canada Post Corp. (1997), 1997 CanLII 3786 (BC SC), 29 C.C.E.L. (2d) 85 (S.C.). 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 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. VII. Disposition: For these reasons, I would allow the appeal, set aside the order of the Chambers judge and in its place direct that the action be stayed pending submission to arbitration as provided for the in the collective agreement. The respondent should pay costs to the appellant in the amount of $750. Cromwell, J.A. Concurred in: Bateman, J.A. Flinn, J.A. 1997 S.H. No. 144084 IN THE SUPREME COURT OF NOVA SCOTIA BETWEEN: NOVA SCOTIA UNION OF PUBLIC EMPLOYEES, LOCAI -AND­- HALIFAX REGIONAL SCHOOL BOARD RESPONDENTS HEARD: At Halifax, Nova Scotia before the Honourable Justice Felix A. Cacchione in Chambers March 4th, 1998. OF ORAL DECISION: March 4th, 1998 WRITTEN RELEASE OF DECISION: March 11 th, 1998 COUNSEL: Ronald A. Stockton, for the Plaintiffs John C. MacPherson, Q.C., for the Defendant CA No.146089 NOVA SCOTIA COURT OF APPEAL BETWEEN: HALIFAX REGIONAL SCHOOL BOARD Appellant and NOVA SCOTIA UNION OF PUBLIC EMPLOYEES, LOCAL Respondent REASONS FOR JUDGEMENT BY: CROMWELL, J.A.

The appellant employer and the respondent union are parties to a collective agreement with effect from January 1, 1994 to December 31, 1996. The collective agreement established employee salaries for that period, with annual adjustments on January 1st of each year. Shortly before the agreement was signed, the Public Sector Compensation Act was passed, which rolled back and froze public sector salaries. In a letter to the union, the employer confirmed the wage increases provided for in the agreement would be paid to the employees as a lump sum following the expiration of the legislated wage freeze. After the expiration of the wage freeze, however, the employer refused to pay the lump sum on the grounds that it would contravene the Act. The union sued the employer in the Supreme Court, claiming the lump sum or, in the alternative, damages for negligent misrepresentation. The employer applied to strike the Statement of Claim on the grounds that the union's claims were within the exclusive jurisdiction of an arbitrator. The Chambers judge dismissed the application. The employer appealed. Allowing the appeal and staying the action pending submission to arbitration as provided for in the collective agreement, that the Chambers judge erred in allowing the action to continue. Where there is a doubt about the arbitrability of a dispute, that issue should generally be determined at arbitration. This 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.

1998canlii3382.txt

SUPREME COURT OF NOVA SCOTIA Citation: Meister v. Coyle, 2010 NSSC 125 Date: (20100404) Docket: Hfx. No. 177464 Registry: Halifax Between: Charles Benjamin Meister v. Michael Vaughan Coyle Defendant Judge The Honourable Associate Chief Justice Deborah K. Smith Heard July 13, 14, 15 and 16, 2009 in Halifax, Nova Scotia Final Written Plaintiff’s final submissions: September 28th, 2009 Submissions Defendant’s final submissions: October 6th, 2009 Counsel David S. Green, Esq., for the Plaintiff Michael J. Wood, Q.C. and Jason T. Cooke, Esq. for the Defendant By the Court: [1] This is an action for negligence and breach of contract brought by the Plaintiff, Charles Benjamin Meister, against the Defendant, Michael Vaughan Coyle. Mr. Meister, who is presently 76 years of age, is retired. On March 1st, 1994, he was working as bus driver for company known as Bluenose Transit Inc. when he was involved in serious motor vehicle accident in which two people were killed. As result of that accident, Mr. Meister was charged with two counts of dangerous driving causing death pursuant to s. 249(4) of the Criminal Code of Canada. [2] Following the laying of criminal charges, Mr. Meister’s employer suspended him from work without pay. They offered, however, at their expense, the use of their legal counsel to defend him in relation to the criminal charges. In correspondence forwarded to Mr. Meister by Bluenose Transit Inc. dated May 16th, 1994 they explained that the Plaintiff may wish to decline their offer and retain his own lawyer or consult his own solicitor “along the way” for second opinions but if he decided to obtain his own counsel it would be at his expense. [3] Mr. Meister decided to take Bluenose Transit Inc. up on their offer of legal counsel and he contacted their lawyer, R. Peter Muttart, Q.C. Mr. Muttart attended with Mr. Meister at his election and plea (an election was made for trial by judge and jury) and then transferred carriage of the file to the Defendant, Michael V. Coyle. Mr. Coyle is barrister and solicitor who was admitted to the Nova Scotia Bar in 1988. [4] preliminary inquiry was held before Judge Anne E. Crawford on September 20th, 1994. Mr. Coyle was counsel for the Plaintiff at the preliminary inquiry. By decision dated November 24th, 1994, Mr. Meister was committed to stand trial. [5] The trial took place before judge and jury in Bridgewater, Nova Scotia, September 5th 8th, 1995. During the course of the trial the Crown called Cst. Joseph Thivierge as an expert witness. Cst. Thivierge is Traffic Analyst with the R.C.M.P. He was called to the scene on the day of the collision. The accident itself had occurred at approximately 6:10 a.m. (before the sun rose). Cst. Thivierge arrived at the accidence scene at approximately 8:25 a.m. (after the sun had risen). Upon arrival the Constable videotaped the scene with camcorder and took various measurements and photographs. [6] The accident itself involved number of vehicles. The focus of the criminal trial and of Cst. Thivierge's investigation was the contact between the bus that the Plaintiff was driving and 1985 Chrysler New Yorker (hereinafter referred to as the "Chrysler") that the bus hit. The two people who died in the accident were seated in the Chrysler. [7] Cst. Thivierge wanted to determine how the accident had happened. In particular, he wanted to determine when various vehicles would have been visible to the Plaintiff (in the bus) and whether there was enough time for the Plaintiff to stop the bus prior to the collision. In order to determine this, Cst. Thivierge returned to the area of the accident six weeks after the collision and attempted to "reconstruct" or "re-enact" the accident scene. In particular, he placed some vehicles in the general area where some of the vehicles involved in the accident had been located. Further, he arranged for an experienced bus driver to drive school bus (similar to that which had been operated by the Plaintiff) in the same direction as the Plaintiff had been travelling just prior to the collision. He had the driver travel at speed of 90 kilometres per hour and had video camera next to the driver's head taping what could be seen. Still photographs were taken which purported to portray the distance from which the driver of the school bus could see the vehicles which had been placed in the area of the accident. The Constable then calculated how much time the driver would have had from the point of visibility to stopping without causing collision. He determined that in his "reconstruction" the bus driver could see the Chrysler from distance of 300 metres. He calculated that at speed of 90 kilometres per hour the bus could travel for 8.6 seconds and still have time to stop without colliding with the Chrysler. He further calculated that if the bus was travelling at only 59 kilometres per hour, it could travel for 15.7 seconds and still have time to stop without coming into contact with the Chrysler. The inference that the Crown wanted to be drawn from these calculations was that the Plaintiff had plenty of time to see the Chrysler and respond to its presence if he had been paying proper attention. [8] There were number of problems with Cst. Thivierge's "re-enactment" and calculations. First, all of the Constable's calculations assumed that the Chrysler was stopped prior to the collision. There was no factual foundation for this assumption. No one was able to testify at trial where the Chrysler had come from or whether it was stopped or moving at the time of the collision. [9] Further, the re-enactment was done in bright sunshine at approximately o'clock in the afternoon whereas the accident occurred at approximately 6:10 in the morning before the sun rose. In addition, the re-enactment did not portray all of the vehicles and individuals that were involved in the collision. Despite these problems the Defendant did not object to the admission of the videotape re-enactment, the still photographs of the re-enactment or to the opinions given by Cst. Thivierge concerning the amount of time that someone would have had to see the Chrysler and stop their vehicle. Rather than object to these matters, the Defendant elected to establish through cross-examination the obvious flaws in Cst. Thivierge's evidence and in the Crown's case. [10] At the conclusion of the trial, the Plaintiff was found guilty by the jury of both counts of dangerous driving under s. 249(4) of the Criminal Code. [11] Shortly after his conviction, Mr. Meister retained new counsel, Duncan R. Beveridge (as he then was) to represent him in relation to his criminal charges. Mr. Beveridge represented the Plaintiff at the time of sentencing. On January 31st, 1996, sentence was suspended, Mr. Meister was placed on probation for three years, was ordered to perform 300 hours of community service work and, as well, was prohibited from operating motor vehicle for two years. [12] Duncan R. Beveridge filed Notice of Appeal and Factum on behalf of the Plaintiff but before the appeal was heard, Mr. Meister changed counsel again. Robert Murrant represented the Plaintiff at the appeal which was heard on January 28th, 1997. [13] By Order issued the 27th day of February, 1997 the Plaintiff’s appeal was allowed, his conviction was quashed and new trial was ordered. Central to the appeal was the decision by the Court that the trial judge had erred in admitting into evidence the video re-enactment of the accident that had been prepared by Cst. Thivierge and, in allowing into evidence, the opinion of the said individual when there was an insufficient factual basis established for his opinion. Further, the Court found that the still photographs taken during the shooting of the video re-enactment should not have been admitted into evidence. Included in the Court of Appeal’s decision (reported at 1997 NSCA 48) is the following at p. 12: The Crown's theory was simply not responsive to the facts developed by the Crown. The theory, and the demonstrative evidence supporting it, were misleading. It must have distracted the jury from the real issues in the case. The evidence should not have been introduced by the Crown, nor should counsel have referred to the theory in summation. Defence counsel should have raised timely objection. With respect, the trial judge erred when he failed to strike the offending evidence, and further erred when he failed to direct the jury to ignore the evidence completely. [14] The Court went on to comment on the use of the videotape. It stated at p. 14: This case illustrates some of the dangers that may arise when video taped re-enactments are introduced before jury. Although only two minutes in length, the video distorted the actual events, as disclosed by the evidence, so dramatically that it should not have been accepted in evidence. come to this conclusion quite apart from the Crown's failure to establish the Chrysler was stationary on the highway. Visual images, for many people, are more easily retained and recalled, than viva voce evidence. It is, therefore, critical that video re-enactment accurately represent the facts, and fairly portray the scene, without any intention to mislead .......... [15] The Plaintiff’s new criminal trial commenced on May 27th, 1997. At that time, the Crown requested that the Indictment be withdrawn and all charges against the Plaintiff were dismissed. That concluded the criminal proceeding. [16] On February 21st, 2002, Mr. Meister commenced an action against the Defendant alleging, inter alia, that the Defendant failed to meet the standard of care expected of reasonably competent barrister and solicitor. The Plaintiff’s specific complaints against the Defendant are set out in his Statement of Claim as follows: 13. The Plaintiff states that the decision of the Court of Appeal specifies that the Defendant should have objected to the admission into evidence of the opinion of the RCMP traffic analyst and the videotape re-enactment. 14. The Plaintiff states that the Defendant convinced him not to take the stand in his own Defence and that there was clear conflict of interest between the Plaintiff and his employers. 15. The Plaintiff states that the Defendant failed to: a. Disclose the conflict of interest to the Plaintiff; and b. Obtain the Plaintiff’s informed consent or remove himself as counsel for the Plaintiff. 16. The Plaintiff states that Brian Haase was an eyewitness to the accident of March 1, 1994 and that he was prepared to testify on behalf of the Plaintiff. The Defendant did not call Brian Haase to testify. 17. The Plaintiff states that he was convicted by the jury because of the Defendant’s negligent advice and actions and the Defendant’s breaches of the implied contract which include: a. Failing to object to the admission into evidence of the opinion of an RCMP traffic analyst and videotape reenactment, both of which were totally without factual foundation; b. Convincing the Plaintiff not to take the stand in his own Defence; and c. Failing to call relevant eyewitnesses. [17] At the time of trial, counsel for the Plaintiff raised additional concerns such as the fact that the Defendant did not recommend to the Plaintiff that he re-elect to judge alone trial. In summation, counsel for the Plaintiff confirmed that while he has raised number of issues concerning the Defendant’s handling of the Plaintiff’s criminal case both in the Statement of Claim and at trial, the alleged negligence and breach of contract claim is based on the Defendant’s failure to object to the admission into evidence of the opinion of the RCMP Traffic Analyst, the videotape re-enactment and the related still photographs all of which were found by the Court of Appeal to be inadmissible. In light of counsel's comments, will deal only with those issues in this decision. [18] In support of its case, the Plaintiff filed an expert’s report prepared by Warren K. Zimmer. Mr. Zimmer, who has practised primarily in the field of criminal law for 31 years, was qualified to give expert opinion evidence on the conduct of criminal proceeding by lawyer in Nova Scotia. [19] Mr. Zimmer noted that the Defendant knew prior to the trial that the Crown was going to attempt to prove that Mr. Meister had sufficient period of time to stop his vehicle but that, as result of period of inattention, Mr. Meister failed to react to the situation on the highway on the day of the accident. The Defendant also knew that the Crown was going to attempt to prove this theory by way of the video re-enactment and the opinion of Cst. Thivierge. Mr. Zimmer testified that, in his opinion, the Defendant should have objected to the admission into evidence of the videotape re-enactment and the related photographs as well as the R.C.M.P. analyst’s opinion and that the Defendant’s failure to object to these matters constituted breach of the appropriate standard of care. [20] Mr. Zimmer pointed out that the video re-enactment and related photographs did not accurately represent the facts at the time of the collision and were not fair portrayal of the accident scene. He noted, inter alia, that it was dark at the time of the collision but the video re-enactment was done in bright day light. He also noted that the number of vehicles in the video re-enactment did not properly reflect the number of vehicles on the highway at the time of the collision. As stated by the Court of Appeal in their decision relating to this case “The re-enactment reduces complex scenario of vehicles (some stationary, some moving, two in collision providing smoke and fire) together with pedestrians (some walking, some running) on both the northern and southern traffic lanes and adjacent shoulders, to one of deceptive simplicity involving one truck on the northern shoulder, and one car on the southern shoulder” (p. 14). In Mr. Zimmer’s view, there would be no reason from defence point of view to have that video re-enactment before the jury during the course of the trial and the Defendant should have objected to the video re-enactment and related photographs as being inadmissible. He said that to allow in these exhibits only created issues that would then have to be responded to by the Defence. [21] Mr. Zimmer also noted that the R.C.M.P. analyst’s opinion was based on factual foundation that could not be proved (what was referred to at the time of trial as “the stationary Chrysler theory”). In his view, the Constable’s opinion was highly prejudicial and it and the video re-enactment should have been objected to by way of pre-trial motion and during the trial. In Mr. Zimmer’s expert’s report filed with the Court, he states at p. 9: It is my opinion that reasonably competent counsel acting for Mr. Meister should have made these timely objections as noted by the Nova Scotia Court of Appeal. In failing to object to the admissibility of Cst. Thivierge’s opinion evidence, the introduction of the re-enactment video and the Crown’s reference to theory not supported by the evidence and, lastly, not taking objection to any of the judge’s charge to the jury in relation to weight, Mr. Coyle’s representation of Mr. Meister fell below the standard of reasonably competent criminal counsel. [22] Mr. Zimmer testified that in his opinion, if the video re-enactment, the related photos and the Constable’s opinion were “eliminated” the Crown would have had “virtually no case”. [23] contrary expert's opinion was presented on behalf of the Defendant by Donald C. Murray, Q.C. Mr. Murray graduated from law school in 1984 and has done primarily criminal defence work throughout his career. Mr. Murray cautioned against looking at the various issues such as the videotape re-enactment in isolation and encouraged “contextual assessment” of the case. He indicated that discreet elements of case can seem unusual or “strange” if considered in isolation but if you consider such an issue in the context of the entire case it can be very logically explained. (He also testified that there was nothing in this case that he thought might be considered unusual even if considered out of context.) [24] Mr. Murray noted that some of Cst. Thivierge’s evidence was helpful to the Plaintiff. For example, the Constable had calculated range of potential speeds for the Plaintiff’s vehicle at between 59 and 71 kilometres per hour (well below the posted speed limit of 100 kilometres per hour). In addition, Cst. Thivierge gave evidence of skid mark left by the bus which suggested braking effort by the Plaintiff and would allow the Defence to talk about braking without requiring the Plaintiff to take the stand. Mr. Murray testified that in his view, there was lot to be gained by having Cst. Thivierge’s opinion in evidence and that any problems that the opinion presented could be and were properly dealt by the Defendant in cross-examination. At p. 13 of Mr. Murray’s expert’s report filed with the Court, he states: It is my view that rational and justifiable choice was made to challenge the unhelpful conclusions in Cst. Thivierge’s report through cross-examination, rather than through an effort to have the whole report excluded from evidence. am particularly of this view given that certain portions of Cst. Thivierge’s report would have been admissible in any event his views as to the tail lights, his views as to the point of impact, and the length of skid, and direction of force. Cst. Thivierge’s evidence as to the distance traveled at particular speeds would also have been admissible and relevant in any event. [25] In relation to the videotape “re-enactment” Mr. Murray stated at p. 13 of his report: With respect to the videotape “reconstruction”, it is my view that the context of the manner in which the video was used at the trial is that it was recognized by the trial participants as not true “reconstruction” of the accident even though that word was improperly used to describe the video. The video was daylight motion picture of the scene and the approaches to the scene. This was motion picture of the scene done at speed different than that being alleged by the Crown or the Defence. That difference was made clear to the Jury. The location of the burning truck appeared on the video, as did the location of the Chrysler at impact, though depicted by vehicle that would have been different in size. The video was taken at an entirely different time of day, and perhaps in different weather conditions, than those that pertained at the time of the accident. All of these differences were brought to the attention of the Jury either by the Crown or by the Defence. There was value for both Crown and Defence for the Jury to see the scene from the point of view of vehicle approaching the accident scene just as it was useful for the Jury to see photographs of the scene later on the day of the accident as to where the vehicles ended up. Certainly if the differences between the time of the accident and the time of the taking of the video were not brought home to the Jury, the videotape had the potential to be misleading. But those differences were put before the jury, together with the inference that Thivierge’s methodology in creating the video had been unfair [for example, Trial, Evidence of Thivierge, Vol.III, Book 1, pp. 887 893]. While objection could have been taken to the video by counsel for Mr. Meister, it is my view that it would have been reasonable choice not to do so. The weaknesses of the video could be, and were, pointed out to the Jury. The video did give the Jury an opportunity to see what the scene would have looked like from geographical or topographical perspective, with things appearing and then disappearing as the bus approached over the various undulations and curves in the road just as “taking view” would have provided to the Jury (at considerably more expense in terms of time and other resources under s. 652 of the Criminal Code). [26] Mr. Murray also testified that, in his opinion, it would have been reasonable exercise of judgment by the Defendant not to object to the admission of the still photographs taken at the time the video was shot. Mr. Murray testified that these photographs did not prove anything so it was not necessary for the Defendant to object to their admission. [27] During his testimony Mr. Murray also suggested that, in his view, even if the Defendant had objected to the admission of Constable Thivierge’s opinion he expects that an argument could have been made by the Crown which would have satisfied the judge that it was admissible. [28] The Defendant gave evidence at the time of trial. He has been member of the Nova Scotia Bar since 1988 after graduating from law school in 1987. He testified that he had done “quite well” in law school, earning some scholarships and prizes. [29] Following his call to the Bar the Defendant moved to Kentville (a rural community in Nova Scotia) and joined the firm which is now known as Muttart Tufts Dewolfe and Coyle. He was partner with that firm at the time that he represented the Plaintiff in his criminal trial. He testified that his practice consisted solely of criminal and civil litigation and that 60% to 70% of his work involved criminal cases. [30] The Defendant believes that he received copy of the videotape in question at some time prior to the preliminary inquiry. He testified that his initial reaction when viewing the videotape was that it was “outrageous”. It was not proper re-enactment and it clearly did not depict “in any way, shape or form” the scene as it would have appeared to the Plaintiff on the day and time in question. However, the Defendant viewed the tape as “wonderful illustration” of the Crown’s stationary Chrysler theory. [31] The Defendant testified that he knew that Cst. Thivierge had done his calculations based on the assumption that the Chrysler was stopped. After the preliminary inquiry the Defendant also knew that none of the Crown witnesses could say that the Chrysler was stopped. The Defendant testified that he wanted the Crown to commit to this stationary Chrysler theory as he knew it was fatally flawed and that there was no factual foundation for that theory. He said that he did not want the Crown to move on to another more viable theory. [32] As indicated, the Defendant saw the video re-enactment as an illustration of the Crown’s flawed theory. The Defendant testified that as long as no one suggested that the video reflected what the Plaintiff saw at the time of the accident and he was of the view that no one was suggesting this he had no difficulty with the video being admitted into evidence. In fact, during the course of the proceeding, the Defendant had written to the Crown prosecutor indicating that in the event that the Crown elected not to introduce the videotape into evidence the Defendant may elect to do so. The Defendant also testified that the first indication that he had that someone was suggesting that the video reflected what the Plaintiff saw was when he read the Court of Appeal decision. [33] The Defendant retained his own accident reconstructionist to assist him in challenging the Crown’s theory and to put forth an alternate theory as to what had happened at the time of the collision. This defence expert (who was more experienced than Cst. Thivierge) was of the opinion that the Chrysler may have been moving ahead of the school bus and that upon being hit by the school bus or just prior to being hit by the school bus the Chrysler collided with another vehicle that was stopped on the travelled portion of the highway (the inference being that it may have been this other vehicle that caused the accident.) In addition, he testified that the Plaintiff would have had much shorter reaction/response time than that suggested by Cst. Thivierge. The Defendant was of the view that his expert had much greater factual foundation for his theory of the accident than the Crown’s stationary Chrysler theory. [34] The Defendant testified that he did not challenge the admissibility of Cst. Thivierge’s opinion on the stopping distance as this opinion was based on the stationary Chrysler theory and the Defendant knew that he could show that there was no factual foundation for this theory. Accordingly, he was not concerned about Cst. Thivierge’s evidence in this regard. The Defendant also noted that some of Cst. Thivierge’s evidence was helpful for the Plaintiff and he wanted it in. [35] On cross examination the Defendant testified that he was of the view that Constable Thivierge’s evidence, the video and the photographs in question were all admissible as long as they were not being introduced to suggest that this is what the Plaintiff saw at the time of the collision. In his view, they were not being introduced at the criminal trial for this purpose and accordingly, he did not object to their admission. [36] In relation to the judge’s charge to the jury the Defendant testified that he was extremely pleased with the charge to the jury (during his charge the judge had indicated that, in his view, the Defence had given very rational explanation as to how the accident had occurred). The Defendant said that he did give “quick” consideration to asking the judge to change his charge but he felt that overall the charge was so favourable towards the Defence that he decided to leave it alone. The Defendant testified that the Crown prosecutor was “furious” with the charge that the judge gave to the jury and asked the justice in question to re-charge the jury. This request was denied. [37] During the trial it was noted by the Defence that the issue of the Defendant’s competency in representing the Plaintiff was not raised at the time of the criminal appeal. If it had been, the Defendant would have been given an opportunity to respond to the issues raised in the appeal and explain why he made the decisions that he did concerning the evidence in question. The way the matter proceeded the Appeal Court did not have the benefit of this information when arriving at their decision and in commenting as they did on the Defendant’s failure to object to the admission of this evidence. ANALYSIS AND CONCLUSIONS [38] In Demarco v. Ungaro et al (1979), 1979 CanLII 1993 (ON SC), 21 O.R. (2d) 673 (Ont. H. Ct. J.) the court dealt with the fundamental issue of whether, in Ontario (as in England), barrister is immune from action brought by his client for negligence in the conduct of the client’s case. Krever J. stated at pp. 692-693: have come to the conclusion that the public interest (another phrase used in the speeches in Rondel v. Worsley) in Ontario does not require that our Courts recognize an immunity of lawyer from action for negligence at the suit of his or her former client by reason of the conduct of civil case in Court. In has not been, is not now, and should not be, public policy in Ontario to confer exclusively on lawyers engaged in Court work an immunity possessed by no other professional person. Public policy and the public interest do not exist in vacuum. They must be examined against the background of host of sociological facts of the society concerned. Nor are they lawyers’ values as opposed to the values shared by the rest of the community. In the light of recent developments in the law of professional negligence and the rising incidence of “malpractice” actions against physicians (and especially surgeons who may be thought to be to physicians what barristers are to solicitors), do not believe that enlightened, non-legally trained members of the community would agree with me if were to hold that the public interest requires that litigation lawyers be immune from actions for negligence. emphasize again that am not concerned with the question whether the conduct complained about amounts to negligence. Indeed, find it difficult to believe that decision made by lawyer in the conduct of case will be held to be negligence as opposed to mere error of judgment. But there may be cases in which the error is so egregious that Court will conclude that it is negligence. The only issue am addressing is whether the client is entitled to ask Court to rule upon the matter. [39] Since the decision in Demarco v. Ungaro et al, supra, number of courts have dealt with the issue of when decision made by lawyer will be held to be negligence as compared to mere error in judgment. Some cases have indicated that when it comes to the professional negligence of lawyer there is fairly high bar that must be reached in order to establish breach of the standard of care. For example, in Grand Anse Contracting Ltd. MacKinnon (1993), 1993 CanLII 4546 (NS SC), 121 N.S.R. (2d) 423 (N.S.S.C.) Richard J. stated at 15 “It is clear from the authorities that the lawyer’s conduct in such circumstances must extend appreciably beyond the realm of an error of judgment and that the [sic] liability ought be imposed only in clear and exceptional cases ...” Similar type language was used in Anastasakos Allen (1996), 16 O.T.C. 413 (Ont. Ct. J. Gen. Div.). In that case the court stated at 7: ... The law with respect to solicitor’s negligence in the conduct of trial is well settled. While the courts will not go so far as to grant absolute immunity to barrister for the conduct of litigation, negligence will not be found on decisions based on the exercise of judgment, of which there are many during the course of trial. There must be “egregious error”. agree with Mr. Justice Krever that it would be very rare to hold that decision made by counsel during trial was negligence as opposed to an error in judgment: Demarco v. Ungaro (1979), 1979 CanLII 1993 (ON SC), 21 O.R. (2d) 673 (H.C.).......... [40] This language, which suggests that lawyers enjoy more forgiving standard of care than that which is expected of other professionals, has been criticized in the more recent Court of Appeal decisions in Henderson v. Hagblom, 2003 SKCA 40 (CanLII), [2003] W.W.R. 590 (Sask. C.A. (leave to appeal to the SCC dismissed: [2004] S.C.R. ix) and Folland v. Reardon (2005), 2005 CanLII 1403 (ON CA), 74 O.R. (3d) 688 (Ont. C.A.). In Henderson v. Hagblom, supra, Jackson J.A. stated at 71: ... to determine whether lawyer, in preparing for trial, has been negligent, the court does not ask whether the lawyer has committed an egregious error. The lawyer is required to bring reasonable care, skill and knowledge to the performance of the professional service which he or she has undertaken to perform. [41] In Folland v. Reardon, supra, Doherty J.A. stated at 41: see no justification for departing from the reasonableness standard. That standard has proven to be sufficiently flexible and fact-sensitive to be effectively applied to myriad of situations in which allegations of negligence arise out of the delicate exercise of judgment by professionals. Without diminishing the difficulty of many judgments that counsel must make in the course of litigation, the judgment calls made by lawyers are no more difficult than those made by other professionals. The decisions of other professionals are routinely subjected to reasonableness standard in negligence lawsuits. see no reason why lawyers should not be subjected to the same standard: Major v. Buchanan (1975), 1975 CanLII 467 (ON SC), O.R. (2d) 491, 61 D.L.R. (3d) 46 (H.C.J.), at p. 510 O.R. [42] Doherty J.A. went on to state at 43 45: An individual being defended in criminal case is entitled to expect that his lawyer will perform as reasonably competent defence counsel. Courts should avoid using phrases like “egregious error” and “clearest of cases” when describing the circumstances in which negligence allegations will succeed against lawyers. These phrases invite the application of an inappropriately low standard of care to the conduct of lawyers. At the very least, these phrases create the appearance that where an allegation of negligence is made against lawyer, judges (former lawyers) will subject these claims to less vigorous scrutiny than claims made against others: see Kitchen v. Royal Air Forces Association, [1958] All E.R. 241, [1958] W.L.R. 563 (C.A.), at 245 All E.R. lawyer defending an accused who fails to perform as reasonably competent defence counsel would be expected to perform is negligent. In accepting the reasonably competent lawyer standard, do not detract from the often repeated caution against characterizing errors in judgment as negligence. Lawyers make many decisions in the course of lawsuit. Those decisions require the exercise of judgment. Inevitably, some of those decisions, when viewed with the benefit of hindsight, will be seen as unwise. The reasonable lawyer standard does not call for an assessment of the sagacity of the decision made by the lawyer. The standard demands that the lawyer bring to the exercise of his or her judgment the effort, knowledge and insight of the reasonably competent lawyer. If the lawyer has met that standard, his or her duty to the client is discharged, even if the decision proves to be disastrous. Plaintiffs who sue their lawyers should not be required to show their claims of negligence are any stronger than any other claims of negligence before they are allowed to proceed to trial. The motion judge’s reference to “egregious errors” and “the clearest of cases” tells me that he erroneously demanded something more than departure from the standard of reasonably competent lawyer defending criminal case. [43] In my view, Strathy J. summed up the matter nicely in Di Martino v. Delisio (2008), 58 C.C.L.T. (3d) 218 (Ont. Sup. Ct. J.) where he stated at 54: ..........barristers, like other professionals, will not be found negligent if they make the kind of judgment call that could reasonably have been made by reasonably competent professional in similar circumstances, even if it is later proven that another decision would have produced better result or that even the decision itself was mistake. Recognizing that there is often no single correct decision, or that the circumstances sometimes do not allow time for reflection, the professional will not be held negligent unless the judgment he or she made was outside the range of reasonable choices that could have been made by competent member of the profession. [44] I conclude from the above authorities that the standard of care owed by a lawyer to his client is that of the reasonably competent lawyer – no more – no less. Lawyers are not held to standard of perfection nor are they responsible to ensure certain result. They are, however, expected to represent their client in reasonably competent manner making decisions and conducting case within range of reasonable, acceptable choices. [45] Trial counsel are required to make strategic decisions and exercise judgment on regular basis. It must be remembered that the practice of law and the conduct of trial is not science. Answers to issues that arise during the course of proceeding are not always clear. Sometimes the decisions and judgment calls that counsel make will be correct – other times they will be in error. They will not be liable to their client in negligence, however, unless the decision that they have made is outside the realm of acceptable possibilities in the circumstances of the case. In other words, if an ordinary competent lawyer could reasonably have made the same decision, counsel will not be liable in negligence even if the decision proves to be wrong. [46] In the case at bar the Defendant failed to object to evidence which has subsequently been found by the Court of Appeal to have been inadmissible. With the benefit of hindsight and, in particular, with the benefit of the Court of Appeal’s comments, it is clear that the Defendant should have objected to Cst. Thivierge’s opinion evidence concerning the time that the Plaintiff would have had to see the Chrysler and stop the bus without collision. It is also clear that the Defendant should have objected to the admission of the video re-enactment and the related still photographs. One must be careful, however, not to analyse this case with the benefit of hindsight. The Defendant did not have that benefit when considering how to conduct the Plaintiff’s criminal trial and it would, in my view, be improper to judge the Plaintiff’s actions with the Court of Appeal’s conclusions in mind. [47] As indicated above, the Plaintiff’s action against the Defendant is based on failure to object to evidence. During the course of the trial, and in the post trial submissions filed by the Plaintiff, the suggestion was made that the Defendant believed that the evidence in question was inadmissible but that he wanted it introduced into evidence in any event so that he could try to prove it wrong. Mr. Zimmer, in his report filed with the Court, also suggests that the Defendant knew that the evidence in question was inadmissible. am not prepared to make that finding based on the evidence before me. [48] The testimony establishes that the Defendant felt that there were serious flaws in the evidence in question. As an example, the Defendant’s initial reaction when he saw the videotape in question was that it was “outrageous”. He concluded, however, that since the video was clearly not an actual re-enactment of the accident itself, it was not necessary to object to its admission and the problems that it raised could be dealt with through cross examination, etc. at the time of trial. [49] The Defendant testified that he was of the view that all of the evidence complained of was admissible albeit flawed. accept his evidence in this regard. He was in error, however, in reaching this conclusion. This evidence which did not reflect the facts or circumstances of the collision may not have been introduced by the Crown to show what the Plaintiff actually saw just prior to the collision. In my view, however, the jury was invited to attach weight and draw conclusions on visibility from it. It had the potential to be highly prejudicial and was of limited probative value. The evidence in question was inadmissible and should not have been before the jury. That, however, in my view, does not determine the matter of negligence. [50] The admissibility of evidence is often unclear and is subject to debate. Reasonable professionals can and will arrive at different conclusions on whether certain evidence is admissible (one need only listen to the testimony of the two experts called in this trial for confirmation of this point.) As long as lawyer’s conclusion on the admissibility of evidence is within range of reasonable, acceptable conclusions, he will not be found to be liable for reaching conclusion that subsequently turns out to be wrong. [51] The Plaintiff’s expert, Warren K. Zimmer, has given the opinion that reasonable counsel acting for the Plaintiff should have made timely objections to the evidence in question as noted by the Court of Appeal. The Defendant’s expert, Donald C. Murray, Q.C., gave the opinion that rational and justifiable choice was made by the Defendant not to challenge the admissibility of the Constable’s opinion, the videotape and the related still photographs. Unfortunately, did not find either opinion particularly helpful. [52] Mr. Zimmer is specialist in the field of criminal law, and in my view, is much more knowledgeable in this area than your ordinary competent solicitor. am fully satisfied that Mr. Zimmer would have objected to the evidence in question and would have handled the Plaintiff’s case in manner different than that chosen by the Defendant. Mr. Zimmer has not satisfied me, however, that the ordinary competent solicitor (who is not criminal law specialist) would have necessarily conducted the case in the manner suggested by him. [53] Mr. Murray is also criminal law specialist. With respect, had difficulty with some of the opinions that he expressed at trial. For example, his suggestion during his viva voce evidence that counsel would want the videotape in evidence so that the jury could appreciate the location where the events occurred fails to recognize that this evidence had the potential to be highly prejudicial and was of limited probative value. Nevertheless, Mr. Murray testified that if he was approaching the trial he would want the videotape in. [54] In addition, during the course of Mr. Murray’s testimony, he questioned whether the opinion evidence that is being complained of was, in fact, inadmissible. This, despite the fact that the Court of Appeal has ruled otherwise. [55] While may disagree with some of Mr. Murray’s opinions his testimony highlights the fact that reasonable, competent professionals can and do have different opinions on the admissibility of evidence. It also highlights the fact that there are often no “right” or “wrong” answers when it comes to evidentiary issues or the conduct of trial. Judgment calls are made by counsel whether to object to evidence or tackle its flaws in some other manner. Sometimes errors are made when exercising that judgment. As indicated, counsel will only be held liable for an error in judgment if it is outside the realm of reasonable, acceptable choices. [56] The burden is on the Plaintiff to satisfy me that the Defendant’s conduct fell below the required standard of care. In the circumstances of this case he has not satisfied this burden. [57] In arriving at this decision, have taken into consideration the fact that very experienced trial judge presided over the Plaintiff’s criminal proceeding and he, too, did not raise the issue of the admissibility of the evidence in question. Judges obviously rely on counsel to make timely objections to inadmissible evidence and they are sometimes reluctant to raise issues that counsel have not raised themselves out of desire not to interfere with counsel’s trial strategy. Ultimately, however, they are the gatekeepers of the evidence and they will raise issues with counsel that are of particular concern. The fact remains that in the case at bar the trial judge did not raise any of the issues presently complained of. This suggests to me that the situation was not as clear as it now appears to Mr. Zimmer and that what seems obvious to him would not necessarily be obvious to others conducting the trial including an experienced trial judge. [58] have also taken note of comment contained in the Crown’s appeal factum. At 13 of the said factum (dealing with the videotape in question) it is stated “It can not be seriously contended that evidence of the kind given by Cst. Thivierge was not admissible”. While this comment is obviously made by party seeking to support the admissibility of the evidence, the fact that the Crown states that it could not seriously be contended that this evidence was inadmissible emphasizes the fact that the question of whether evidence is admissible is often not clear. Obviously, it can be contended that the evidence in question was inadmissible three Court of Appeal judges have found that to be the case. The point is, however, that appeal counsel was of the view that the matter was beyond question and she was wrong. I am satisfied that the matter was not as clear cut as it now appears with the benefit of hindsight and the Court of Appeal’s decision. [59] The suggestion was also made by the Plaintiff that the Defendant did not have reasonable knowledge of the applicable or relevant law concerning the admissibility of the evidence in question. have reviewed the transcript of the criminal trial as well as the viva voce evidence of the Defendant and am satisfied, and find, that the Defendant had reasonable knowledge of the applicable law relating to these issues. He erred, however, in the application of that law to the facts of this case. That is something that can occur in any trial. Counsel cannot be expected to be correct in their analysis each time an evidentiary issue arises. [60] In light of my conclusion that the Plaintiff has not satisfied me that the Defendant’s conduct fell below the required standard of care, need not go on to deal with the issue of causation. [61] The Plaintiff’s action will be dismissed. [62] encourage counsel to reach an agreement on the issue of costs. This has been an unfortunate case in many respects and am hopeful that this final issue can be dealt with by consent. If not, will receive written submissions on the issue of costs. Deborah K. Smith Associate Chief Justice

The plaintiff bus driver was in a serious bus/motor vehicle accident that killed two people. He was charged with dangerous driving. His employer offered the services of its lawyer, who eventually transferred the file to the defendant who represented him at trial. At trial, the Crown introduced a video of a purported accident re-enactment. The defendant chose not to object to its admission, saying he felt it was a perfect example of the Crown's 'doomed to failure' theory. As for the problems (it was recorded in the daytime, while the accident happened at daybreak; it assumed the vehicle that was struck was stopped, although there was no proof it was; and it didn't show all of the vehicles at the original scene), he felt these could be addressed by cross-examination. The plaintiff was convicted. He retained a different lawyer to represent him on appeal, and won. Eventually, the charges were dropped. The lawyer's competence was not raised as an issue on appeal. In their decision, the Court of Appeal criticized him for not objecting to the admission of the video and other evidence. They found this evidence was inadmissible, highly prejudicial and should never have been put to the jury. The plaintiff sued in negligence and breach of contract. The parties introduced conflicting opinions from criminal law experts to support their respective positions. Action dismissed. The standard of care is that of a reasonably competent lawyer. Lawyers make strategic decisions and exercise judgment, but are not responsible to ensure a certain result. Sometimes the decisions are wrong: it is only negligence if it was outside the realm of acceptable possibilities in the circumstances of the case. The appeal panel had the benefit of hindsight - it is improper to judge the plaintiff's actions in light of their conclusions. While the experts were not helpful in establishing what a reasonably competent lawyer (as opposed to a specialist in the field) would do, their differing opinions illustrate how the admissibility of evidence can be the subject of much debate.

b_2010nssc125.txt

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2016 SKPC 075 Date: May 18, 2016 Information: 37397838, 37397839, 37397840, 37397879, 43212228, 43212229, 44072591, 900001522, Location: Regina Between: Her Majesty the Queen Appearing: Mr. D. Davidson For the Provincial Crown Mr. J.P. Malone For the Federal Crown Mr. L. Mercier For the Accused DECISION ON Section 11(b CHARTER APPLICATION M. HINDS, INTRODUCTION [1] Mr. Said Ali (Ali is charged with 56 offences set out in eight Informations. Six of these Informations involve co-accused, Osman Hassan Mohamed and/or Faysal Abdi Hassan. Most of the offences are alleged to have taken place in Regina, Saskatchewan on or about June and 7, 2012 and involve such charges as: conspiracy to commit the indictable offence of fraud by printing and/or cashing forged cheques, contrary to contrary to section 465(1)( c) of the Criminal Code, defrauding or attempting to defraud contrary to section 380(1)(b) of the Criminal Code, possession of proceeds of crime contrary to 354(a) and 355(b) of the Criminal Code, knowingly using or causing forged document to be used, contrary to section 368(1)(a) and without lawful authority have in their possession counterfeit mark, contrary to section 376(2)(b) of the Criminal Code. Mr. Ali and the two co-accused are also charged with unlawful possession of (Khat) Cathinone, contrary to section 4(1) of the Controlled Drugs and Substances Act. Mr. Ali also faces charge of breach of recognizance from May 2013. [2] full list of Mr. Ali’s charges are set out in Schedule “A”. Most of these offences are absolute jurisdiction offences as per section 553 of the Criminal Code. [3] Mr. Ali’s court proceedings began on June 8, 2012 when he faced 16 charges set out in two Informations (43212228 and 43212229). On June 12, 2012 four additional Informations (37397838, 37397839, 37397840 and 440072591, consisting of 28 charges) were sworn against him. On July 19, 2012 Information 37397879 (consisting of 11 charges) was sworn against Mr. Ali. On May 22, 2013 Information 90001522 (consisting of one charge) was sworn against Mr. Ali. [4] Mr. Robinson initially acted as legal counsel for Mr. Ali between June 11 and September 20, 2012. Mr. Tilling acted as legal counsel for Mr. Ali between October 23, 2012 and February 14, 2014. Mr. Mercier has been acting as legal counsel for Mr. Ali since March 11, 2014. [5] At court appearance on November 5, 2015, Mr. Ali elected to be tried by Queen’s Bench Judge and preliminary hearing was scheduled to commence in the Provincial Court in Regina on April 6, 2016. On March 8, 2016 Mr. Ali provided Notice of Charter application pursuant to section 11(b), alleging that his right to trial within reasonable time, as guaranteed by section 11(b) of the Canadian Charter of Rights and Freedoms (Charter) have been infringed. Mr. Ali seeks judicial stay of proceedings. At Case Management Conference on March 16, 2016 Mr. Ali re-elected to be tried on all charges before Provincial Court Judge. The Preliminary Hearing date of April 6, 2016 was vacated. The hearing of the Charter application took place on April 4, 2016. [6] have concluded, for the reasons which are outlined below, that Mr. Ali has not established, on balance of probabilities, that there has been breach of his right to be tried within reasonable time. As a result I have dismissed the application for a stay of proceedings. DETAILED HISTORY OF THE PROCEEDINGS [7] The chronology of events and court appearances in this case, as set out in the court record and the evidence heard on this application, is crucial to the disposition of the matter. It is as follows: On June 8, 2012 Informations 43212228 and 43212229 are sworn alleging the offences set out in Schedule A. Mr. Ali is in custody and appears in bail court The Crown opposes his release from custody. Mr. Ali seeks private counsel. The matter is adjourned to June 11, 2012 for Show Cause Hearing. Mr. Robinson appears as defence counsel on occasions for Mr. Ali from June 11, 2012 until the Court grants Mr. Robinson leave to withdraw on September 20, 2012. On June 11, 2012 Mr. Ali is present (in custody) in bail court along with his counsel, Mr. Robinson. Mr. Ali is released on recognizance on Informations 43212228 and 43212229. Mr. Ali is to reside in Calgary, Alberta not to attend the Province of Saskatchewan except to attend court or appointments with counsel and to have no contact and no attendance with co-accused Osman Mohamed and Faysal Hasan. Mr. Ali is to contact the Regina Police Service by telephone each Saturday commencing June 16, 2012. The matter is adjourned to July 19, 2012. On June 12, 2012 Informations 37397838, 37397839, 37397840 and 440072591 are sworn alleging the offences set out in Schedule A. Mr. Ali is in custody and appears in bail court. The Crown consents to his release on recognizance. The matter is adjourned to July 19, 2012. On July 19, 2012 Information 37397879 is before the court. Mr. Ali is not present. Mr. Robinson appears for Mr. Ali on Information 37397879 and the above noted six Informations. designation of counsel is filed. The matters are adjourned to August 16, 2012 for additional disclosure. On August 16, 2012 Mr. Ali is not present. Mr. Robinson appears for Mr. Ali on the seven above noted Informations. The matters are adjourned to September 20, 2012 for disclosure. On September 20, 2012 Mr. Ali is not present. The court grants Mr. Robinson leave to withdraw as counsel. The remarks state Mr. Tilling to represent Mr. Ali”. The matters are adjourned to October 23, 2012. Mr. Tilling (or his agent) appears as defence counsel on 17 occasions for Mr. Ali from October 23, 2012 until the Court grants Mr. Tilling leave to withdraw on February 14, 2014. On October 23, 2012 Mr. Ali is not present, Crown waives the attendance of Ali. Mr. Tilling appears as defence counsel. The matters are adjourned by consent at the request of the defence to December 6, 2012. On December 6, 2012 Mr. Ali is not present. Mr. Tilling appears as defence counsel. The matters are adjourned to be spoken to on January 16, 2013. On January 16, 2013 Mr.Ali is not present. Mr. Tilling appears as defence counsel. The matters are adjourned by consent at the request of the defence to be spoken to on February 13, 2013. On February 13, 2013 an agent appears for Mr. Tilling. The matters are adjourned by consent to be spoken to on March 13, 2013. On March 13, 2013 Mr. Ali is not present. Mr. Tilling appears as defence counsel. The matters are adjourned by consent, at the request of defence to be spoken to on April 3, 2013. On April 3, 2013 Mr. Tilling appears as defence counsel. The matters are adjourned by consent, at the request of defence to be spoken to on May 1, 2013. On May 1, 2013 Mr. Ali is not present. Mr. Tilling appears as defence counsel. The matters are adjourned by consent to be spoken to on May 30, 2013. On May 30, 2013 Mr. Ali is not present. Mr. Tilling appears as defence counsel. The matters are adjourned by consent to be spoken to on June 27, 2013. The remarks section states: “Needs to review material”. On June 27, 2013 Mr. Ali is not present. Mr. Tilling is noted as defence counsel. An agent may have appeared for Mr. Tilling. The matters are adjourned by consent to August 22, 2013. he remarks section states “Defence waives delay”. take this endorsement to mean that Mr. Ali waived delay for 1month and 26 days from June 27, 2013 to August 22, 2013. On August 22, 2013 Mr. Tilling appears as defence counsel. The matters are adjourned by consent to be spoken to on October 1, 2013. On October 1, 2013 Mr. Ali not present. Mr. Tilling is noted as defence counsel. The matters are adjourned by consent to be spoken to on November 5, 2013. The remarks section states “In Discussion Crown”. On November 5, 2013 Mr. Tilling appears as defence counsel. The matters are adjourned by consent to be spoken to on December 3, 2013. On December 3, 2013 Mr. Tilling appears as defence counsel. The matters are adjourned by consent to be spoken to on December 19, 2013. The remarks section states “To set date”. On December 19, 2013 Mr.Ali not present. Mr. Tilling appears as defence counsel. The matters are adjourned by consent to be spoken to on January 16, 2014. On January 16, 2014 Mr. Ali not present. Mr. Tilling appears as defence counsel. The matters are adjourned by consent to be spoken to on February 4, 2014. On February 4, 2014 Mr. Tilling appears as defence counsel. The matters are adjourned by consent for Mr. Ali to obtain new counsel on February 11, 2014. On February 11, 2014 Mr. Ali not present. Leanne Phillips appears as agent for defence counsel, Mr. Tilling. The matters are adjourned by consent to be spoken to on March 14, 2014. The remarks section states “Brad Tilling granted leave to withdraw”. Mr. Mercier has appeared as defence counsel for Mr. Ali since March 11, 2014. On March 11, 2014 Mr. Mercier appears as defence counsel for Mr. Ali. The matters are adjourned by consent to be spoken to on April 15, 2014. The remarks section states “Defence waives delay”. take this endorsement to mean that Mr. Ali waives delay for approximately month, from March 14, 2014 to April 15, 2014. On April 15, 2014 Mr. Ali is not present and the Crown waives Mr. Ali’s attendance. Mr. Mercier appears as defence counsel. The matters are adjourned by consent to be spoken to on May 14, 2014. On May 14, 2014. Mr. Ali is not present. Mr. Mercier appears as defence counsel. The matters are adjourned by consent at the request of the defence to be spoken to on June 17, 2014. On June 17, 2014 Mr. Ali is not present. Bench Warrant is authorized and held by Crown. Mr. Mercier appears as defence counsel. The matters are adjourned to be spoken to on August 12, 2014. On August 12, 2014 Mr. Ali is not present. Bench Warrant continues to be held by Crown. Mr. Mercier appears as defence counsel. The Court orders the personal attendance of the accused on the adjourned date. The matters are adjourned to be spoken to on August 19, 2014. The remarks section states: “The Crown no longer wants to hold the Bench Warrant. The Court gives the defence one week adjournment to have the accused present.” On August 19, 2014 Mr. Ali is present. The Bench Warrant is cancelled. Mr. Mercier appears as defence counsel. The matters are adjourned by consent, at the request of defence, to be spoken to on October 7, 2014. On October 7, 2014 Mr. Ali is not present. Mr. Mercier appears as defence counsel. The matters are adjourned by consent, at the request of defence for disclosure to November 13, 2014. On November 13, 2014 Mr. Mercier appears as defence counsel. The matters are adjourned by consent, at the request of defence to be spoken to and for review of disclosure to January 19, 2015. On January 19, 2015 Mr. Ali is not present. Mr. Tocher appears as agent for defence counsel, Mr. Mercier. The matters are adjourned at the request of the defence to be spoken to on February 18, 2015. On February 18, 2015 Mr. Ali is not present. Mr. Ali is charged with new offence of breaching condition of recognizance as set out in Information 90001522. Mr. Mercier appears as defence counsel. All matters are adjourned to March 16, 2015. On March 16, 2015 Mr. Ali is not present. Mr. Mercier appears as defence counsel. The matters are adjourned at the request of the defence to be spoken to on April 20, 2015. On April 20, 2015 Mr. Ali is not present. Mr. Mercier appears as defence counsel. The matters are adjourned by consent at the request of the defence to be spoken to on June 16, 2015. Defence waives delay. take this endorsement to mean that Mr. Ali waives delay for approximately months, from April 20, 2015 to June 16, 2015. Bench Warrant is authorized and held by Crown. The remarks section states: “Designation (of Counsel) to be filed”. On June 16, 2015 Mr. Ali and Mr. Mercier are not present. The matters are adjourned to June 17, 2015. The remarks section states “(Crown) to contact Louis Mercier”. On June 17, 2015 Mr. Ali is not present. It appears Mr. Mercier was also not present. The matters were adjourned by the court to June 22, 2015 to be spoken to. The remarks section states: “Crown couldn’t get in touch w/ legal counsel.” On June 22, 2015 Mr. Ali is not present. Mr. Mercier appears as defence counsel. The matters are adjourned by consent at the request of the defence to be spoken to on July 21, 2015. On July 21, 2015 Mr. Ali is not present. Mr. Mercier appears as defence counsel. The matters are adjourned at the request of the defence to be spoken to on August 18, 2015. On August 18, 2015 Mr. Ali is not present. Mr. Mercier appears as defence counsel. The matters are adjourned at the request of the defence to be spoken to on September 22, 2015. The remarks sections states: “(Form) R1 filed”. On September 22, 2015 Mr. Ali is not present. Mr. Mercier appears as defence counsel. The matters are adjourned at the request of the defence to be spoken to on October 13, 2015. On October 13, 2015 Mr. Mercier appears as defence counsel. The matters are adjourned for plea to November 3, 2015. On November 3, 2015 Mr. Ali is not present. Mr. Mercier appears as defence counsel. Accused waives reading of election and elects trial by Judge without Jury. The matters are adjourned to January 20, 2016 for case management. The remarks section states: “Preliminary hearing dates set to April 4, 2016 #10 at 9:30 a.m.” On January 20, 2016 Case Management conference is to take place regarding all charges. The Crown is not present. Mr. Mercier appears as defence counsel. The matters are adjourned to February 3, 2016. On February 3, 2016 The Case Management conference takes place on all charges. Case Management adjourned to March 11, 2016. The Court brings to the attention of both counsel that most of the charges are within the absolute jurisdiction of the Provincial Court. On March 11, 2016 The Case Management conference continues on all charges. Case Management adjourned to March 16, 2016. On March 16, 2016 The Case Management conference continues on all charges. Defence re- elects to trial by Provincial Court Judge for all charges. The Charter application is adjourned to April 4, 2016. The preliminary hearing/ trial dates scheduled for April 4, are 2016 vacated. On April 4, 2016 The Charter application is heard. The trial is scheduled for September 12 15, 2016. [8] On April 4, 2016 Rachel Casey and Mr. Ali testified on the Charter voir dire. The Evidence of Rachel Casey [9] Rachel Casey does reception work for Mr. Mercier. On March 7, 2016 she swore an affidavit respecting this matter she also testified. Her evidence reveals Mr. Mercier has been endeavouring to set hearing date for Mr. Ali since February 6, 2015. [10] According to Ms. Casey, Mr. Mercier wrote to counsel for the Crown, Mr. Brúlé, on February 6, 2015 regarding seven of the eight Informations pertaining to Mr. Ali and enclosed Form R-1 to be completed by Crown Counsel. Form R-1 is entitled “Hearing Date Required, Accused Represented by Counsel”. Counsel for the defence and Crown are to complete Form R-1 by providing written information in various portions of the form. These portions include: elections, type of hearing required, number of witnesses which will testify, estimate of time required for the hearing and six matters pertaining to hearing readiness. Once the form R-1 is completed by counsel for the defence and the Crown it is submitted to Ms. Miller, the Case Manager at the Provincial Court in Regina, who will assign date for the hearing. Mr. Mercier completed his portion of Form R-1. He expected the hearing to take one full day. [11] Mr. Mercier wrote to counsel for the Crown, Mr. Brûlé second time on August 4, 2015 and third time on September 22, 2015. On each occasion he once again he enclosed the Form R-1 which he had completed and requested Mr. Brule to execute the form and forward it to Ms. Miller. Mr. Mercier sent an e-mail correspondence to Mr. Brûlé on October 6, 2015. Once again he enclosed the Form R-1 which he completed and asked that Mr. Brûlé complete the form and submit it to Ms. Miller. [12] Mr. Malone wrote to Mr. Mercier on October 16, 2015. He advised Mr. Mercier that his office had been assigned the prosecution of Information 3797838 (drug charge) against Mr. Ali. Mr. Malone asked Mr. Mercier to advise whether he intended to set the drug charge as part of the preliminary inquiry. [13] Mr. Mercier wrote to Mr. Malone on October 23, 2015. He enclosed form R-1 which he completed in relation to Informations 43212229 and 37397838 (drug charges) and requested Mr. Malone review and execute form R-1. [14] Mr. Mercier sent an email correspondence to Mr Brûlé on October 23, 2015. He enclosed revised form R-1 dealing only with provincial charges. The Evidence of Said Ali [15] Said Ali is 56 years old. He resides in Calgary, Alberta where he is part of the Somalian community. Mr. Ali has been dealing with the majority of the charges before the court since June 2012. Since June 16, 2012 he has phoned the Regina Police Service every Saturday. He has also been to Regina three times. He is worried his case won’t be finished. He says he has been waiting 45 months and this has effected his health. He has been diabetic since 2012. He testified he has to go to the hospital frequently. [16] Mr. Ali has had lawyers acting for him on these charges. Initially, Mr. Robinson obtained his interim release. His second lawyer was Mr. Brad Tilling who was later suspended from the practice of law and could no longer represent him. When Mr. Tilling was representing him, Mr. Ali testified that he did not tell Mr. Tilling to set trial date. He left that up to Mr. Tilling. He has instructed his third lawyer, Mr. Mercier to set trial date. Mr. Ali believes that people in his community are laughing at him because his criminal charges are still before the courts. He finds the criminal charges against him to be shameful and he has tried to hide these charges from his children and the Somalian community. [17] Section 11(b) of the Charter states as follows: Any person charged with an offence has the right to be tried within reasonable time. [18] The purpose of section 11(b) was explained by Mr. Justice Sopinka in Morin, [1992] SCR 771, 1992 CanLII 89 (SCC), 71 CCC (3d) [Morin] at paragraphs 26 to 30 where he stated: 26. The primary purpose of s. 11(b) is the protection of the individual rights of accused. secondary interest of society as whole has, however, been recognized by this Court. will address each of these interests and their interaction. 27. The individual rights which the section seeks to protect are: (1) the right to security of the person, (2) the right to liberty, and (3) the right to fair trial. 28. The right to security of the person is protected in s. 11(b) by seeking to minimize the anxiety, concern and stigma of exposure to criminal proceedings. The right to liberty is protected by seeking to minimize exposure to the restrictions on liberty which result from pre-trial incarceration and restrictive bail conditions. The right to fair trial is protected by attempting to ensure that proceedings take place while evidence is available and fresh. 29. The secondary societal interest is most obvious when it parallels that of the accused. Society as whole has an interest in seeing that the least fortunate of its citizens who are accused of crimes are treated humanely and fairly. In this respect trials held promptly enjoy the confidence of the public. As observed by Martin J.A. in R. v. Beason (1983), 1983 CanLII 1873 (ON CA), 36 C.R. (3d) 73 (Ont. C.A.): "Trials held within reasonable time have an intrinsic value. The constitutional guarantee enures to the benefit of society as whole and, indeed, to the ultimate benefit of the accused..." (p. 96). In some cases, however, the accused has no interest in an early trial and society's interest will not parallel that of the accused. 30. There is, as well, societal interest that is by its very nature adverse to the interests of the accused. [page787] In Conway [1989 CanLII 66 (SCC), [1989] S.C.R. 1659], majority of this Court recognized that the interests of the accused must be balanced by the interests of society in law enforcement. This theme was picked up in Askov in the reasons of Cory J. who referred to "a collective interest in ensuring that those who transgress the law are brought to trial and dealt with according to the law" (pp. 1219-20). As the seriousness of the offence increases so does the societal demand that the accused be brought to trial. The role of this interest is most evident and its influence most apparent when it is sought to absolve persons accused of serious crimes simply to clean up the docket. [19] Justice Sopinka then went on to outline legal frame work which the court should follow when considering these issues of an individual's s. 11(b) Charter rights as well as society's interests in protecting its citizens and ultimately law enforcement. The legal framework applicable to this consideration was described in detail by Caldwell J.A. in Wilson, [Wilson] 2013 SKCA 128 (CanLII), 427 Sask 63: ... [T]he legal framework for considering an allegation of unreasonable delay in violation of s. 11(b) of the Charter, ... was set out by Sopinka J. in R. v. Morin, 1992 CanLII 89 (SCC), [1992] S.C.R. 771 at pp. 787-788, and affirmed in R. v. Godin, 2009 SCC 26 (CanLII), [2009] S.C.R. 3, R. v. MacDougall, 1998 CanLII 763 (SCC), [1998] S.C.R. 45, R. v. Collins; R. v. Pelfrey, 1995 CanLII 114 (SCC), [1995] S.C.R. 1104, and others (see also R. v. Richards, 2012 SKCA 120 (CanLII), [2013] W.W.R. 637, R. v. Pidskalny, 2013 SKCA 74 (CanLII), 299 C.C.C. (3d) 396, and R. v. Walker, 2013 SKCA 95 (CanLII)). The R. v. Morin factors are: (a) The length of the delay This is threshold issue. The question is whether the overall length of time between arrest and trial is prima facie sufficient to trigger Charter scrutiny (R. v. Morin, at p. 789; and R. v. MacDougall, at para. 43). (b) The waiver of time periods Periods of delay which have been voluntarily waived by an accused who has full knowledge of the consequences of waiver are factored out of the overall length of delay under the s. 11(b) analysis (R. v. Morin, at p. 790; and R. v. Richards, at para. 25; see also: R. v. Richard, 1996 CanLII 185 (SCC), [1996] S.C.R. 525, at para. 22). (c) The reasons for the delay, including: (i) the inherent time requirements of the case, such as the time involved with processing the charges, retaining counsel, pre-trial procedures (bail applications, etc.), pre-trial conferences, police administrative work, Crown disclosure, counsel preparation, and, in some cases, preliminary inquiry hearing, which do not count against the Crown or the accused (R. v. MacDougall, at para. 44; and R. v. Richards, at para. 26); (ii) the actions of the accused, such as change of venue applications, changes of solicitor, challenges to search warrants, and adjournments (not amounting to waiver) which are directly attributable to the defence and which are voluntarily undertaken and, therefore, do not count toward the unreasonableness of the overall delay (R. v. MacDougall, at para. 48; and R. v. Morin, at pp. 793-794); (iii) actions of the Crown, such as disclosure delays, change of venue applications, and adjournments which are directly attributable to the Crown and, therefore, count against the Crown in the sense that they "cannot be relied upon by the Crown to explain away delay that is otherwise unreasonable" (R. v. MacDougall, at paras. 49-52; and R. v. Morin, at p. 794); and (iv) limits on institutional resources, meaning delays arising due to unavailability of funding, personnel or facilities for the proper administration of criminal justice, which counts against the Crown if the institutional or systemic delay is intolerable or is itself unreasonable (R. v. MacDougall, at paras. 45 and 61; R. v. Morin, at pp. 794-800; and R. v. Richards, at para. 37). For matters in provincial courts, as base guideline, eight to ten months of institutional delay is considered tolerable (R. v. Morin, at p. 799). (d) Other reasons for delay, which may include actions of the trial court itself (R Morin, at p. 800, in reference to the circumstances in Rahey). (e) Prejudice to the accused, which may be inferred from the length of the delay itself or proven on evidence, but which may also be negated by the actions or conduct of the accused (R Morin, at pp. 801-803). 27. The accused bears the burden of proof in establishing breach of s. 11(b) of the Charter on the basis of the R. v. Morin factors (R. v. Morin, at pp. 787-788). That is, [the accused must] prove, on balance of probabilities, that in his case the particular combination of delay attributable to the Crown and any intolerable institutional delay had so unreasonably delayed the criminal justice process beyond its inherent time requirements that he had suffered prejudices resulting from that delay (but not the charges) which, together with his liberty and security of the person interests and his right to make full answer and defence, outweighed the interests of the Crown and society in seeing that justice is done fairly, quickly and efficiently (R. v. Askov, 1990 CanLII 45 (SCC), [1990] S.C.R. 1199, at pp. 1219-1223). Application of the Morin Factors (a) The Length of the Delay [20] In this case the overall length of time between arrest on June 8, 2012 and September 12 -15, 2016, the dates scheduled for trial, is approximately 51 months. I am of the view that such a period of time is sufficiently long so as to warrant an inquiry into the reasonableness of the delay. (b) Waiver of time periods [21] The court endorsements reveal that Mr. Ali specifically and voluntarily waived three periods of delay in this case: (1) month and 26 days from June 27, 2013 to August 22, 2013 and (2) month from March 14, 2014 to April 15, 2014 and (3) month and 27 days from April 20, 2015 to June 16, 2015. In Wilson at paragraph 30 Mr. Justice Caldwell indicated that “Waived time is deducted from the overall total delay and not counted at all (R Morin, at p. 790; and Richards, at para. 25).” Deducting months and 23 days from 51 months leaves approximately 46 months and one week of delay to be considered. (c) The Reasons for the Delay (i) Inherent time requirements of the case [22] Inherent delay relates to the time necessarily required to move case forward. [23] In this case find the following periods of time are attributed to inherent delay: June to September 20, 2012 Mr. Ali is arrested, charged and granted bail. Mr. Robinson (105 days) obtains disclosure during this time and is familiarizing himself with the file. October 23 to December 6, 2012 Mr. Tilling first appears as legal counsel for Mr. Ali. New (45 days) defence counsel required time to familiarize themselves with the file. May 30 to June 27, 2013 The matters are adjourned by consent from May 30 to June 27, (29 days) 2013. The remarks section states: “Needs to review material”. As am unable to determine whether the Crown or Mr. Tilling needed time to review material, am prepared to attribute this delay to inherent delay. October to November 5, 2013 Mr. Tilling in discussion with the Crown. As am unable to (36 days determine the nature of the discussion, am prepared to attribute this delay to inherent delay. February to March 14, 2014 New counsel required. Mr. Tilling is granted leave to withdraw (39 days) as counsel on February 11, 2014. The matter is adjourned to March 14, 2014 when Mr. Mercier appears as counsel for Mr. Ali. am unable to attribute this delay to the accused, as it appears Mr. Tilling was suspended from the practice of law. Hence, attribute the delay of 39 days to inherent delay. Nov. 13, 2014 to Jan. 19, 2015 The matters are adjourned by consent, at the request of (68 days) Mr. Mercier to be spoken to and for review of disclosure to January 19, 2015. Mr. Mercier as new defence counsel required time to familiarize himself with the file. Feb. 18, 2015 to Mar. 16, 2015. Mr. Ali is charged with new offence of breaching condition (27 days) of recognizance as set out in Information 90001522. Mr. Mercier familiarizes himself with new charge. In addition, Crown is given additional time to respond to Mr. Ali’s request for trial (Form R-1) previously provided to the Crown on or about February 6, 2015. 105 +45 +29 +36 39+68 +27 349 days. Therefore, find that the total time attributed to inherent delay is 349 days which is approximately 11.5 months. (ii) The actions of the accused September 20 to October 23, 2012 Change of Counsel. Mr. Robinson is granted leave to withdraw (34 days) on September 20, 2012. The remarks on the endorsement of September 20, 2012 state Mr. Tilling to represent Ali.” The matters are adjourned to October 23, 2012. take this endore- ment to mean that Mr. Ali is in the process of retaining new legal counsel, Mr. Tilling. December 6, 2012 to Jan. 16, 2013 Matters are adjourned to be spoken to. Elapsed time is 42 days. (21 days) The endorsement does not indicate whether the Crown or Defence requested the adjournment. As result will attribute half the time (21 days) to each. Jan. 16, 2013 to Feb. 13, 2013 Matters are adjourned by consent, at the request of defence. (29 days) February 13 to March 13, 2013 Matters are adjourned by consent to be spoken to. The endorse- (14 days) ment does not indicate whether the Crown or the Defence requested the adjournment. As result will attribute half the time (14 days) to each. March 13 to May 1, 2013 Matters are adjourned by consent, at the request of the defence. (50 days) May to May 30, 2013 Matters are adjourned by consent to be spoken to. The endorse- (15 days) ment does not indicate whether the Crown or the Defence requested the adjournment. As result will attribute half the time (15 days) to each. August 22, 2013 to October 1, 2013 Matters are adjourned by consent to be spoken to. The endorse- (20 days) ment does not indicate whether the Crown or the Defence requested the adjournment. As result will attribute half the time (20 days) to each. November 5, 2013 to Feb. 4, 2014 Matters are adjourned by consent to be spoken to. The endorse- (46 days) ments do not indicate whether the Crown or the Defence requested the adjournment. As result will attribute half the time (46 days) to each. April 15 to May 14, 2014 Matters are adjourned by consent to be spoken to. The endorse- (15days) ments do not indicate whether the Crown or the Defence requested the adjournment. As result will attribute half the time (15 days) to each. May 14 to November 13, 2014 Matters are adjourned by consent, at the request of defence. (184 days) January 19 to February 18, 2015 Matters are adjourned by consent, at the request of defence. (31 days) June 16 to June 22, 2015 Matters are adjourned. Mr. Ali and Mr. Mercier did not attend (7 days) court. 34 21 29 +14 50 +15 184 31 467 Therefore, find the total time attributed to the actions of the accused is 467days, which is approximately 15.5 months. (iii) The actions of the Crown December 6, 2012 to Jan. 16, 2013 Matters are adjourned to be spoken to. The endorsement does (21 days) not indicate whether the Crown or Defence requested the adjournment. As result will attribute half the time (21 days) to each. February 13 to March 13, 2013 Matters are adjourned by consent to be spoken to. The endorse- (14 days) ment does not indicate whether the Crown or the Defence requested the adjournment. As result will attribute half the time (14 days) to each. May to May 30, 2013 Matters are adjourned by consent to be spoken to. The endorse- 15 days) ment does not indicate whether the Crown or the Defence requested the adjournment. As result will attribute half the time (15 days) to each. August 22, 2013 to October 1, 2013 Matters are adjourned by consent to be spoken to. The endorse- (20 days) ment does not indicate whether the Crown or the Defence requested the adjournment. As result will attribute half the time (20 days) to each. November 5/13 to Feb. 4/14 Matters are adjourned by consent to be spoken to. The endorse- (46 days) ments do not indicate whether the Crown or the Defence requested the adjournment. As result will attribute half the time (30 days) to each. April 15 to May 14, 2014 Matters are adjourned by consent to be spoken to. The endorse- (15 days) ments do not indicate whether the Crown or the Defence requested the adjournment. As result will attribute half the time (46 days) to each. March 16 to April 20, 2015 attribute this delay to the Crown on the basis that it had been in (36 days) possession of the request for trial, Form R-1 from Mr. Ali since February 6, 2015 and would had time to consider and respond to Mr. Mercier by March 16, 2015. While am aware that Mr. Ali was charged with other individuals, in the absence of any evidence from the provincial Crown at the voir dire for its reason in delaying responding to/completing the form R-1. attribute the delay from March 16 to April 20, 2015 to the Crown. June 22 to Nov. 3, 2015 attribute this period of delay to the Provincial Crown on the (135 days) basis that it had been in possession of the first request for trial, Form R-1 since February 6, 2016 and had time to consider and respond to Mr. Mercier during this period of time. In addition, the affidavit of Rachel Casey reveals that Mr. Mercier forwarded the same R-1 to Crown prosecutor, Mr. Dana Brûlé three more times: August 4, September 22 and October 6, 2015. In October 2015 the provincial Crown assigned conduct of the drug charges set out in Information 37397838 to the federal Crown, represented by Mr. Malone. Mr. Malone advised Mr. Mercier of this by letter dated October 16, 2015. Seven days later on October 23, 2015 Mr. Mercier forwarded form -1 to Mr. Malone respecting the drug charges. Mr. Malone completed the R-1 respecting the drug charges and forwarded the form to Case Manager, Ms. Miller on October 28, 2015. On November 3, 2015 the defence made it’s formal election in Court and preliminary hearing was set for April 4-6, 2016. It appears the provincial Crown, Mr. Brule completed the Form R-1 on or about November 3, 2015. In turn Ms. Miller completed court form entitled “Scheduling Notice” on Information 37397839, 37397840, 37397879 (Provincial Crown charges) and the drug charges (Federal Crown charges) set out in Information 37397838 on November 3, 2015. The Scheduling Notice indicates these were scheduled for preliminary inquiry on April 4-6, 2016 in Court Room #10. The Scheduling Notice was provided to the Court on November 3, 2015. Provincial and federal Crowns and Mr. Mercier appeared in Court Room #1 on November 3, 2015. On behalf of Mr. Ali, Mr. Mercier elected to be tried by Q.B. Judge without Jury and preliminary hearing dates were set for April 4-6, 2016. The matter was also adjourned for case management for January 20, 2016. 21 14 15 +20 46 +15 36 135 302 days Therefore, find the total time attributed to the actions of the Crown is 302 days, which is approximately 10 months. (iv) Institutional Delay November 3, 2015 to September 12-15, 2016. [24] In Morin the Court noted at para. 47 that institutional delay “. Is the period that starts to run when the parties are ready for trial but the system can not accommodate them. Initially the parties were ready for preliminary hearing on the indictable offences on November 3, 2015. The dates available to the parties for the preliminary hearing was five months later on April 4, 2016. On March 16, 2016 the defence re-elected for Mr. Ali to be tried before Provincial Court Judge on all the charges. The preliminary hearing did not proceed on April 4, 2016. Instead this Charter application was heard. The trial has been adjourned for approximately months and one week from April 4, 2016 to September 12 -15, 2016. In this case find that the total institutional delay is approximately 10 months and one week. [25] In Morin the court held that period of eight to ten months delay in Provincial Court would be reasonable institutional delay. This case involves 56 charges. The trial will be of moderate complexity given the type and quantity of charges. find the institutional delay of period of ten months and one week is tolerable and within the guidelines established in Morin. (d) Other Reasons for delay [26] There is no evidence in this case that other reasons have added to the delay. (e) Prejudice to the Accused [27] In Pidskalny 2013 SKCA 74 (CanLII), 299 CCC (3d) 396 Caldwell J.A. described the proper approach to the consideration of prejudice at para. 41 In R. v. Morin, at p. 801, ... Sopinka J. said that s. 11(b) of the Charter seeks to protect an accused from "[i]mpairment of the right to liberty, security of the person, and the ability to make full answer and defence resulting from unreasonable delay in bringing criminal trials to conclusion". The final step in the inquiry into the circumstances of delay is to assess the prejudice that that delay has caused to these interests and, thus, to the accused. Prejudice may be actual as demonstrated through evidence, inferred from the delay itself or combination of both (R. v. Godin, at paras. 29-38; and R. v. Morin, at pp. 801-03). The longer the delay, the stronger the inference of prejudice. In addition, inferred prejudice may be enough, on balance, to establish breach of s. 11(b) (R. v. Godin, at paras. 37-38). The court must keep it squarely in mind, however, that the prejudice in question must be result of the delay and not of the charges (R. v. Rahey, 1987 CanLII 52 (SCC), [1987] S.C.R. 588, at p. 624). [28] In this case the delay to trial is long. Fifty one months will have come and gone from June 5, 2012 to the September 12 15, 2016 when these matters are to go to trial. Hence, there is strong inference of prejudice to Mr. Ali given this delay. [29] must also determine whether Mr. Ali has established that he has suffered actual prejudice as result of the delay in this case. [30] Mr. Ali was released on recognizance shortly after he was arrested and charged on the majority of the charges before the court. The release conditions are moderately restrictive. He was required to reside at his residence in Calgary, Alberta. He was to remain outside the Province of Saskatchewan unless he had an appointment with his lawyer or attended court. Mr. Ali could not contact any co-accused. Since June 16, 2012 he has been required to make weekly telephone contact with the Regina Police Service on Saturdays. [31] In the 46 months these charges have been before the court, Mr. Ali has made four personal appearances in court being: June and 11, 2012, August 19, 2014 and April 4, 2016. Otherwise, he has remained in Calgary which he considers his home. His lawyers have appeared in court on his behalf which has made things less onerous on Mr. Ali. In addition there was no evidence that Mr. Ali's right to defend the case has been compromised by lost or destroyed evidence, unavailable witnesses, or other factors due to the passage of time. [32] However, find the delay has resulted in some actual prejudice to Mr. Ali. The recognizance has placed some restrictions on Mr. Ali. He is not free to come and go as he pleases. He must reside at his home in Calgary. As result he has been unable to visit his brother in Ethiopia who is very sick. [33] Mr. Ali testified the delay has had an effect on his health. He testified he has been diabetic since 2012 and has had to go to the hospital frequently. He says he does not need the added stress of these outstanding charges. have no reason to disbelieve Mr. Ali on this point. Mr. Ali also believes that people in the Somalian community in Calgary of which he is part, are laughing at him because his criminal charges are still before the courts. This may or may not be true. However, it does point to the stress Mr. Ali has faced awaiting trial. [34] While have found some of Mr. Ali’s prejudice is real, it must also be considered in light of the fact that good portion of the delay in this case has been attributable to his actions (15.5 months). In McCance 2013, MBPC 14 Judge Kalmakoff (as he then was) held that prejudice will be given less consideration when it results from delay attributable to the actions of the accused. The court stated as follows at paragraph 39: Delay that is caused by the accused cannot be used as evidence of prejudice: R. v. Lahiry, supra, at para. 77-79. Failing to indicate preference for earlier trial dates and making no attempt to expedite the proceedings may lead to the inference that the accused is not particularly concerned with, or prejudiced by, the delay: R. v. Barkman, supra, at para 37-43; R. v. Findlater, 2012 ONCA 685 (CanLII); R. v. Sharma, 1992 CanLII 90 (SCC), [1992] S.C.R. 814. [35] During cross- examination Mr. Ali admitted that he never instructed Mr. Tilling to get trial date. Mr. Ali testified that he left such matters to Mr. Tilling. Unfortunately such confidence in Mr. Tilling seems to have been misplaced, given that during the 16 months he represented Mr. Ali he did not set either preliminary hearing or trial date. Mr. Ali also testified on cross-examination that he instructed his third lawyer, Mr. Mercier to get trial date. Regrettably Mr. Mercier’s efforts to get preliminary hearing date did not begin until February, 2015, some 11 months after he began representing Mr. Ali in March 2014. [36] Overall, I am of the view that Mr. Ali has not been particularly concerned with or prejudiced bythe delay. That is not to say the Crown has made reasonable efforts to move the matters forward to trial. Regrettably, these matters have been adjourned far too many times with the consent of the Crown. Balancing the accused’s and society’s interests [37] When I take that into account, and balance the prejudice Mr. Ali has suffered with the reasons forthe delay and society’s interest in having these 56 charges resolved by a trial on the merits, I am not satisfied on a balance of probabilities that the overall delay in this case is unreasonable. The trial should proceed. [38] am not satisfied that there has been violation of Mr. Ali’s rights under section 11(b). Theapplication for a stay of proceedings is dismissed. Erreur Référence de lien hypertexte non valide.Erreur Référence de lien hypertexte non valide.Erreur Référence de lien hypertexte non valide.Erreur Référence de lien hypertexte non valide./ca/legal/search/runRemoteLink.do?A=0.2596168711114769&bct=A&service=citation&risb=21_T22795530276&langcountry=CA&linkInfo=F%23CA%23MBQB%23sel1%252004%25year%252004%25decisiondate%252004%25onum%25252%25 1) Information #37397879 (co-accused: Said Ali and Osman Hassan Mohamed): On or about June 5, 2012, at Regina, SK did: #1 Have in their possession property, to wit: $1,500.00 Canadian Currency not exceeding five thousand dollars, knowing that all or part of the property was obtained directly or indirectly in Canada by the commission of an offence punishable by indictment to wit: fraud, contrary to s. 380 of the Criminal Code, contrary to s. 354(1)(a) and 355(b) of the Criminal Code. (Hereafter, it can be referred to as the Code). #2 Knowingly cause Ryan Pilkington to use forged document, to wit: counterfeit cheque, for $4,500.00 payable to Ryan Pilkington, and bearing the name of Western Lottery Corporation, as if it were genuine, contrary to s. 368(1)(a) of the Code. #3 Conspire together, the one with the other and with Ryan Pilkington, to commit the indictable offence of fraud on Royal Bank of Canada, contrary to s. 380 of the Code and did thereby commit an offence contrary to s. 465(1)(c) of the Code. #4 Did by deceit, falsehood or other fraudulent means defraud Royal Bank of Canada of $1,500.00 cash, of value not exceeding five thousand dollars, contrary to s. 380(1)(b) of the Code June 4, 2012: #5 Knowingly cause Ryan Pilkington to use forged document, to wit: counterfeit cheque in the amount of $2,859.17, payable to Ryan Pilkington and bearing the name of SGI Canada, as if it were genuine, contrary to s. 368(1)(a) of the Code. #6 Conspire together, the one with the other and with Ryan Pilkington, to commit the indictable offence of fraud on TD Canada Trust, contrary to s. 380 of the Code and did thereby commit an offence contrary to s. 465(1)(c) of the Code. #7 Did by deceit, falsehood or other fraudulent means attempt to defraud TD Canada Trust of $2,859.17 of value not exceeding five thousand dollars, contrary to s. 380(1)(b) of the Code. #8 Knowingly cause Ryan Pilkington to use forged document, to wit: counterfeit cheque in the amount of $3,869.37, payable to Ryan Pilkington and bearing the name of Canadian Automobile Association, as if it were genuine, contrary to s. 368(1)(a) of the Code. #9 Conspire together, the one with the other and with Ryan Pilkington, to commit the indictable offence of fraud on Royal Bank of Canada, contrary to s. 380 of the Code and did thereby commit an offence contrary to s. 465(1)(c) of the Code. #10 By deceit, falsehood or other fraudulent means defraud Royal Bank of Canada of $1,000.00 of value not exceeding five thousand dollars, contrary to s. 380(a)(b) of the Code. #11 Have in their possession property, to wit: $1,000.00 Canadian Currency not exceeding five thousand dollars, knowing that all or part of the property was obtained directly or indirectly in Canada by the commission of an offence punishable by indictment to wit: fraud, contrary to s. 380 of the Code, contrary to s. 354(1)(a) and 355(b) of the Code. 2) Information #37397839 (co-accused: Osman Hassan Mohamed, Said Ali, and Faysal Abdi Hassan): On or about June 7, 2012, at Regina, SK did: #1 Conspire together to commit the indictable offence of fraud by printing forged cheques, contrary to s. 465(1)(c) of the Code. #2 Conspire together and with Adam Duthie to commit the indictable offence of fraud by cashing cheque for $3,869.17 at Scotia Bank, contrary to s. 465(1)(c) of the Code. #3 Conspire together and with Adam Duthie to commit the indictable offence of fraud by cashing cheque for $3,869.17 at Canadian Imperial Bank of Commerce, contrary to s. 465(1)(c) of the Code. #4 Conspire together and with Jamie Lee Hubbard, to commit the indictable offence of fraud by cashing cheque for $3,962.17 at Scotia Bank 3835 Sherwood Drive, contrary to s. 465(1)(c) of the Code. #5 Conspire together and with Jamie Lee Hubbard, to commit the indictable offence of fraud by cashing cheque for $3,962.17 at Scotia Bank 4110 Albert Street, contrary to s. 465(1)(c) of the Code. #6 Did by deceit, falsehood or other fraudulent means attempt to defraud Scotia Bank of the sum of $3,869.17, contrary to s. 380(1)(b) of the Code. #7 Did by deceit, falsehood or other fraudulent means attempt to defraud Scotia Bank 3835 Sherwood Drive of money, the sum of $3,962.17, contrary to s. 380(1)(b) of the Code. #8 Did by deceit, falsehood or other fraudulent means attempt to defraud Scotia Bank 4110 Albert Street, of money, the sum of $3,962.17, contrary to s. 380(1)(b) of the Code. #9 Did by deceit, falsehood or other fraudulent means attempt to defraud Canadian Imperial Bank of Commerce 2965 Gordon Road of money, the sum of $700.00, contrary to s. 380(1)(b) of the Code. #10 Have in their possession property, to wit: Canadian currency in the amount of $895.05, of value not exceeding five thousand dollars knowing that all or pat of the property was obtained directly or indirectly in Canada by the commission of an offence punishable by indictment to wit: fraud, contrary to s. 354(1)(a) and 355 (b of the Code. #11 Knowingly use forged document, to wit, counterfeit cheque payable to Roland Bell in the amount of $3,869.17 on the account of Magna Foremeat Industries, cause Scotia Bank 3835 Sherwood Drive to act upon it as if it were genuine, contrary to s. 368(1)(a) of the Code. #12 Knowingly use forged document, to wit: counterfeit cheque payable to Alyssa Louison in the amount of $3,962.17 on the account of SGI Canada, cause Scotia Bank 3835 Sherwood Drive to act upon it as if it were genuine, contrary to s. 368(1)(a) of the Code. #13 Knowingly use forged document, to wit: counterfeit cheque payable to Alyssa Louison in the amount of $3,962.17 on the account of SGI Canada, cause Scotia Bank 4110 Albert Street to act upon it as if it were genuine, contrary to s. 368(1)(a) of the Code. #14 Knowingly use forged document, to wit: counterfeit cheque payable to Roland Bell in the amount of $3,869.17 on the account of Clearwater Welding and Fabricating at Canadian Imperial Bank of Commerce 2965 Gordon Road, to act upon as if it were genuine, contrary to s. 368(1)(a) of the Code. 3) Information #43212228 (co-accused: Osman Hassan Mohamed, Said Ali, and Faysal Abdi Hassan): On or about June 7, 2012, at Regina, SK, did: #1 Conspire together to commit the indictable offence of fraud by giving forged cheques to unknown individuals and counsel them to cash the cheques contrary to s. 465(1)(c) of the Code. #2 Did by deceit, falsehood or other fraudulent means attempt to defraud Scotia Bank of the sum of $3,869.17, contrary to s. 380(1)(b) of the Code. #3 Did by deceit, falsehood or other fraudulent means attempt to defraud Scotia Bank of the sum of $3,869.17, contrary to s. 380(1)(b) of the Code. #4 Did by deceit, falsehood or other fraudulent means attempt to defraud Scotia Bank of the sum of $3,962.17, contrary to s. 380(1)(b) of the Code. #5 Did by deceit, falsehood or other fraudulent means attempt to defraud Scotia Bank of the sum of $3,962.17, contrary to s. 380(1)(b) of the Code. #6 Did by deceit, falsehood or other fraudulent means attempt to defraud CIBC of the sum of $3,869.17, contrary to s. 380(1)(b) of the Cod.e #7 Did by deceit, falsehood or other fraudulent means attempt to defraud CIBC of the sum of $3,869.17, contrary to s. 380(1)(b) of the Code. #8 Have in their possession property, to wit: Canadian currency in the amount of $896.05, of value not exceeding five thousand dollars knowing that all or part of the property was obtained directly or indirectly in Canada by the commission of an offence punishable by indictment to wit: fraud, contrary to s. 354(1)(a) and 355(b) of the Code. #9 Knowing that document, to wit, cheque was forged, cause Scotia Bank to use or deal or act upon it as if it were genuine, contrary to s. 368(1) of the Code. #10 Knowing that document, to wit, cheque was forged, cause Scotia Bank to use or deal or act upon it as if it were genuine, contrary to s. 368(1) of the Code. #11 Knowing that document, to wit, cheque was forged, cause Scotia Bank to use or deal or act upon it as if it were genuine, contrary to s. 368(1) of the Code. #12 Knowing that document, to wit, cheque was forged, cause Scotia Bank to use or deal or act upon it as if it were genuine, contrary to s. 368(1) of the Code. #13 Knowing that document, to wit, cheque was forged, cause CIBC to use or deal or act upon it as if it were genuine, contrary to s. 368(1) of the Code. #14 Knowing that document, to wit, cheque was forged, cause Scotia Bank to use or deal or act upon it as if it were genuine, contrary to s. 368(1) of the Code. #15 Fraudulently use stamp to wit: SGI Alberta Treasury, contrary to s. 376(1)(a) of the Code. 4) Information #43212229 (co-accused: Osman Hassan Mohamed, Said Ali, and Faysal Abdi Hassan): On or about June 7, 2012, at Regina, SK, did: #1 Unlawfully possess controlled substance, to wit: (Khat) cathinone, contrary to s. 4(1) of the CDSA 5) Information #37397838 (co-accused: Osman Hassan Mohamed, Said Ali, and Faysal Abdi Hassan): On or about June 7, 2012, at Regina, SK, did: #1 Unlawfully possess controlled substance, to wit: 50 grams of (Khat) cathinone, contrary to s. 4(1) of the CDSA. #2 Unlawfully possess controlled substance, to wit: 80.03 grams of (Khat) cathinone, contrary, to s. 4(1) of the CDSA. 6) Information #37397840 (co-accused: Osman Hassan Mohamed, Said Ali, and Faysal Abdi Hassan): On or about June 7, 2012, at Regina, SK, did: #1 Without lawful authority have in their possession counterfeit mark to wit: SGI Canada, contrary to s. 376(2)(b) of the Code. #2 Without lawful authority have in their possession counterfeit mark to wit: BC Employment Assistance, contrary to s. 376(2)(b) of the Cod.e. #3 Without lawful authority have in their possession counterfeit mark to wit: Alberta Minister of Finance, contrary to s. 376(2)(b) of the Code. #4 Cause Adam Duthie to deal with counterfeit cheque issued to Roland Bell written on account of Clearwater Welding and Fabricating in the amount of $3,869.17, contrary to s. 368(1)(b) of the Code. #5 Cause Adam Duthie to deal with counterfeit cheque issued to Roland Bell written on account of Magma Foremeat Industries in the amount of $3,869.17, contrary to s. 368(1)(b) of the Code. #6 Cause Jamie-Lee Hubbard to deal with counterfeit cheque issued to Alyssa Louison written on account of SGI Canada in the amount of $3,962.17, contrary to s. 368(1)(b) of the Code. #7 Cause Jamie-Lee Hubbard to deal with counterfeit cheque issued to Alyssa Louison written on account of SGI Canada in the amount of $3,962.17, contrary to s. 368(1)(b) of the Code. #8 Possess three counterfeit cheques in the vehicle with intent to commit an offence under s. 368(1)(b) of the Code, contrary to s. 368(1)(d) of the Code. #9 Possess sixty counterfeit cheques in their hotel room with intent to commit an offence under s. 368(1)(b) of the Code, contrary to s. 368(1)(d) of the Code. #10 Fraudulently personate by counselling Jamie-Lee Hubbard to use the name of Alyssa Louison for financial gain, contrary to s. 403(a) of the Code. #11 Fraudulently personate by counselling Adam Duthie to use the name of Rolland Bell for financial gain, contrary to s. 430(a) of the Code. 7) Information #44072591 (Said Ali): On or about June 11, 2012, at Regina, SK, did: #1 Being at large on his recognizance entered into before justice or judge and being bound to comply with condition thereof, to wit: not to contact or communicate directly or indirectly with Osman Mohamed, Faysal Hassan except through member of the law society of SK, fail without lawful excuse to comply with that condition, contrary s. 145(3) of the Code. 8) Information #90001522 (Said Abdi Ali): Between May 4, 2013 and May 11, 2013, at Regina, SK, did: #1 Being at large on his recognizance entered into before justice or judge and being bound to comply with condition thereof, to wit, report to the officer in charge by telephone front desk Regina City Police every Saturday between the hours of 9:00 a.m. to 4:00 p.m. commencing June 16, 2012, fail without lawful excuse to comply with that condition, contrary to s. 145(3) of the Code.

HELD: The application was dismissed. The court found that the 51 months between the charges and the scheduled trial was sufficiently long to warrant an inquiry into the reasonableness of the delay. As the accused had specifically and voluntarily waived almost five months of the delay, the court deducted that amount, leaving 46 months to be considered. The various types of delay were considered by the court: 11.5 for inherent delay; 15.5 months to be attributed to the actions of the accused; 10 months to be attributed to the Crown; and 10 months to institutional delay. The court found that the accused had not suffered prejudice and as most of the delay was attributable to adjournments sought on his behalf, the court found that the overall delay in this case was not unreasonable.

d_2016skpc75.txt

nan NOVA SCOTIA COURT OF APPEAL Citation: Workers’ Compensation Board of Nova Scotia v. Nova Scotia (Workers’ Compensation Appeals Tribunal), 2009 NSCA 123 Date: 20091204 Docket: CA 309638 Registry: Halifax Between: The Workers’ Compensation Board of Nova Scotia Workers’ Compensation Appeals Tribunal, Attorney General of Nova Scotia and Martin Kaye Respondents Judge: The Honourable Justice Oland Appeal Heard: November 25, 2009 Subject: Workers’ Compensation Act, s. 228 Chronic Pain Regulations, s. nan Summary: The Workers’ Compensation Board appealed the effective date of the chronic pain benefits awarded to a worker. That date has been found on the evidence to be earlier than November 26, 1992 which is set out in s. 228, one of the Act’s transitional provisions which deals with injuries between March 23, 1990 and February 1, 1996 (the “window period”). Issue: Does s. 228 of the Act limit the retroactive payment of chronic pain benefits stemming from injury within the window period? Result: Appeal dismissed. Section 228 has no application to payment of chronic pain benefits for injuries during the window period. Nor is entitlement under s. 9 of the Regulations restricted to an effective date of November 26, 1992. This information sheet does not form part of the court’s judgment. Quotes must be from the judgment, not this cover sheet. The full court judgment consists of pages. NOVA SCOTIA COURT OF APPEAL Citation: Workers’ Compensation Board of Nova Scotia v. Nova Scotia (Workers’ Compensation Appeals Tribunal), 2009 NSCA 123 Date: 20091204 Docket: CA 309638 Registry: Halifax Between: The Workers’ Compensation Board of Nova Scotia Workers’ Compensation Appeals Tribunal, Attorney General of Nova Scotia and Martin Kaye Respondents Judges: Oland, Hamilton, Fichaud, JJ.A. Appeal Heard: November 25, 2009, in Halifax, Nova Scotia Held: Appeal is dismissed per reasons for judgment of Oland, J.A.; Hamilton and Fichaud, JJ.A. concurring. Counsel: Roderick H. Rogers and Paula Arab, for the appellant Workers’ Compensation Board of Nova Scotia Alexander MacIntosh, for the respondent Workers’ Compensation Appeals Tribunal Jane A. Spurr and D. William MacDonald, for the respondent Martin Kaye Reasons for judgment: [1] On June 19, 1990, while at work, the worker injured his lower back. On February 26, 2008 Board Adjudicator determined that he had chronic pain related to that injury. The worker was awarded three percent pain-related impairment, effective November 26, 1992. [2] In determining that effective date, the Board Adjudicator relied upon s. 228 of the Workers’ Compensation Act, S.N.S. 1994-95, c. 10 (the “Act”) which reads in part: 228 (1) Subject to subsection (2), where worker (a) was injured on or after March 23, 1990, and before the date this Part comes into force; (b) suffered permanent impairment as result of the injury; and (c) at the date this Part comes into force, is receiving or is entitled to receive compensation for permanent partial disability or permanent total disability as result of the injury, the compensation awarded between March 23, 1990, and the date this Part comes into force is deemed to be and always to have been awarded in accordance with the former Act. (2) The Board shall recalculate the amount of compensation payable to the worker in accordance with Sections 34 to 58. (3) Where recalculation made pursuant to subsection (2) entitles the worker to greater award than the award the worker was receiving when this Part comes into force, the Board shall commence payment of the recalculated amount of compensation as of the latest of (a) the date on which the Board determines the worker has permanent impairment, whether pursuant to Section 34 or the former Act; (b) the date on which the worker completes rehabilitation program pursuant to Sections 112 and 113, where the worker is engaged in rehabilitation program on or after the date the Board determines the worker has permanent impairment pursuant to Section 34; or (c) November 26, 1992. (5) For greater certainty, nothing in this Section entitles any person to compensation for period prior to November 26, 1992. [Emphasis added.] [3] The worker’s appeal of the Board Adjudicator’s decision to Hearing Officer was denied. The worker then appealed to the Workers’ Compensation Appeals Tribunal (“WCAT”). [4] In decision dated March 9, 2009 and reported as WCAT #2008-424-AD, WCAT increased the pain-related impairment to six percent. It also determined that s. 228 did not restrict the worker’s entitlement to chronic pain benefits to an effective date of November 26, 1992, and found that the evidence warranted an effective date of October 1, 1990. The Workers’ Compensation Board (the “Board”) appeals. [5] The issue on appeal is narrow: does s. 228 of the Act limit the retroactive payment of chronic pain benefits stemming from injury between March 23, 1990 and February 1, 1996 to November 26, 1992? [6] The issue on appeal involves question of law and the interpretation of statutory provision with no specialized technical meaning, for which the standard of review is correctness. [7] In its decision, WCAT summarized the history of the jurisprudence and legislation which gave rise to the transitional provisions in the Act. These include s. 228 which pertains to injuries which occurred in the so-called window period between March 23, 1990, when this court’s decision in Hayden v. Workers’ Compensation Appeal Board (N.S.) (1990), 1990 CanLII 2423 (NS CA), 96, N.S.R. (2d) 108 was released, and February 1, 1996, when the current Act came into force. Payment of any permanent compensation was suspended after the decision until the Board started compensating workers through an interim loss policy effective November 26, 1992 which was later amended. The policy was temporary with compensation to be recalculated when the final earnings loss policies were adopted. [8] The Chronic Pain Regulations did not come into effect until 2004. Section pertains to chronic pain for injuries during the window period: Original compensable injury on or after March 23, 1990 nan If worker’s original compensable injury occurred on or after March 23, 1990, and the worker is found to have pain-related impairment, (a) the worker’s permanent benefit will be calculated in accordance with Sections 34 to 48 of the Act; and (b) the worker may be eligible to receive an extended earnings-replacement benefit. [9] After reviewing these provisions and submissions on behalf of the worker and the Board, WCAT concluded: agree with the Worker’s Advisor that his benefits should be determined by the Chronic Pain Regulations, and that s. 228 has no bearing on his entitlement to chronic pain compensation. There is no issue of recalculation here, which is the stated purpose of this section. The November 26, 1992 date, chosen by the Board as the effective date of the Worker’s pain-related impairment, is one choices (sic) under that section for when the recalculated award is to take effect. As there is no recalculation in this case, s. 228 does not apply. [10] Having carefully considered the written and oral submissions presented by counsel for the Board and the worker, am of the view that WCAT’s reasoning and determination satisfy the standard of review of correctness. [11] Section 228 as worded sets out recalculation mechanism for addressing how and when payments to workers injured within the window period would be calculated under the new Act. Counsel for the Board acknowledges that in order for its appeal to succeed, it must show that entitlement to chronic pain benefits involves recalculation within the meaning of s. 228. am not persuaded that it does. When the new Act came into effect in February 1996, chronic pain was not compensable. There was no entitlement whatsoever for benefits for chronic pain prior to the Chronic Pain Regulations in 2004. Hence, there could be no benefit which would be recalculated. Section 228 has no application to payment of chronic pain benefits for injuries during the window period. Nor is entitlement under s. 9 of the Chronic Pain Regulations restricted to an effective date of November 26, 1992. There is no authority which prevents the payment of benefits for chronic pain for period prior to that date. [12] I would dismiss the appeal. Oland, J.A. Concurring: Hamilton, J.A. Fichaud, J.A.

The Workers' Compensation Board appealed the effective date of the chronic pain benefits awarded to a worker. That date had been found on the evidence to be prior to November 2, 1992, which was the date set out in the legislation's transitional provisions (s. 228) dealing with injuries suffered during the 'window period.' appeal dismissed; s. 228 has no application to the payment of chronic pain benefits for injuries during the window period as no recalculation of benefits is involved; nor is entitlement under s. 9 of the regulations restricted to an effective date of November 26, 1992.

e_2009nsca123.txt

J. U.F.C. of A.D. 1988 958 J.C. S. IN THE COURT OF QUEEN'S BENCH (FAMILY LAW DIVISION) JUDICIAL CENTRE OF SASKATOON BETWEEN: TWILA FAYE BROTHWELL (YACKEL) and DOUGLAS JAMES BROTHWELL RESPONDENT D. MCIVER for the petitioner G. CARSON for the respondent JUDGMENT CARTER J. DATE: JUNE 29, 1995 This is an application by Twila Faye Brothwell(mother) for an order varying the judgment of Dickson J. of the5th of January 1990, in which he gave judgment for divorce andjoint custody to the parents of two boys Matthew, born April 22,1984 and Luke, born June 3, 1986. No other corollary relief was set out in the divorce judgment. The father is dentist practicing in Melfort, and was so at the time of the divorce. Mother was then without employment. History of the Proceedings in F.L.D.: The parties married August 23, 1980 and separated in September 1988. They entered into separation agreement in December of 1988 in which they agreed to joint custody, residence with the father and generous access to the mother. That agreement contained provision that It shall be joint decision of the husband and wife to remove the children from the Province of Saskatchewan for any reason other than short vacation. In July, 1990, the mother commenced an application to vary the divorce judgment by granting mother sole custody of the boys, or joint custody with principal residence with mother. She based this application upon the grounds that she was being denied access, or was having difficulty with access. pre-trial was ordered on the issue. The pre-trial was heard in November of 1990 and as no agreement was reached custody investigation report was ordered. The report indicates that the father married June 1990, Sharon Poncelet, mother of children, and those children moved into the father's home with his own boys. Mother married again May 27, 1990. Her husband is Ivan Yackel. The report was filed with the court July 31, 1991 and recommended that the joint custody with principal residence with father continue. The report says that both Dr. Brothwell and Mrs. Yackel possess superior parenting skills and their ability to adequately parent the children is beyond reproach. The physical, psychological, social and economic needs of the children are being met by Dr. and Mrs. Brothwell and by Mr. and Mrs. Yackel as non-custodial parents. The investigator, Heather Warwick, B.S.W. recommended that the joint custody arrangement remain unchanged and she gave her reasons: This assessment reveals that the parties, prior to their separation in 1988, led an almost idyllic life in most favourable and supportive community. (I presume she speaks of Melfort and district.) Since that time, the children have remained in the marital home in that community, have maintained close contact with the extended family, have established friendships at school and at play and have begun to take part in social activities. The alternative being requested is to have the boys move to completely new community, away from extended family and friends. am of the opinion that the request is not in the best interest of the children. (The mother then lived in Regina.) In his affidavit of the 30th of July, 1990 filed in opposition to the mother's application for change in the divorce judgment which would give her sole custody or joint custody with principal residence with her, the father has this to say: That both children have been in my exclusive care since the separation except for periods of access by the petitioner. Both children have spent their entire life in Melfort. Both sets of grandparents live at Melfort and the children are completely established in Melfort in the terms of home, family and friends. Additionally the children have two sets of aunts and uncles and number of cousins that they are very close to in Melfort.... and in another paragraph: That am deeply attached and devoted to my children and in my view it would be devastating to them to uproot them from their lifelong home, family and friends. After the custody/access report was filed, the mother took no further proceedings and matters have remained as recommended by Ms. Warwick: joint custody, principal residence was father and generous access to mother. The application before me by the mother for variation of the corollary relief set out in the divorce judgment is as follows: a) an order that the applicant (mother) have sole custody of the children Matthew and Luke. Alternatively: b) an order providing that the primary residence of the children be with the applicant mother and c) an order preventing the respondent father from removing the children or either of them from the Province of Saskatchewan. The affidavit material filed on this applicationshows that the father has informed the mother that he is movingto Aurora, Ontario, at the beginning of July, 1995 and intends toenroll in a course at the dental college in Toronto, which willenable him to teach Public Health Dentistry. His reason for this move, he states in his affidavit, is that he has developed condition in his hand (or hands) which causes them to shake and he cannot continue working as dentist. He is at present on disability pension of $10,000.00 per month. He says that his income from disability insurance is secure whether he works or not, at this stage, but he would prefer not to rely on disability insurance. He has located and arranged to rent large house in Aurora and intends to commute from Aurora to Toronto days week to take the courses at the dental college there. The course is for two or possibly three years. If he wishes to get Masters Degree it will be three years. The applicant mother says that this would be change in the circumstances of the children of great importance to the boys, and warrants an application for variation. She says it would not be in the best interests of the boys to be uprooted from their home in Melfort where they have lived in their father's house since the parties separated, and mother has had generous access during that time, nor from the Province of Saskatchewan. Father says in his affidavit sworn May 15, 1995 that: The children will have all the traditional sports and recreational opportunities available to them in Aurora that they have in Melfort only with greater variety and greater opportunities. The area is virtual paradise in terms of recreation areas, lakes, etc. Mother in her affidavit says that the father will be commuting between Aurora and Toronto days week and will see much less of the boys than he did when they lived in Melfort. Father says his present wife does not work outside the home and will be able to care for his boys and her boys, while the applicant mother works outside the home and will not be looking after them. The applicant says if she gets sole custody she will not work outside the home and will remain in her home with the children. The access which the mother has enjoyed since December 1988 and perhaps before that, has been generous. Mother and her husband are now living on an acreage near the town of MacRorie, some 200 kilometres from Melfort. They have lived there since 1993, having moved there from Regina. The mother picks up and delivers the boys every other weekend from Friday after school to Sunday evenings. Friends and neighbours from MacRorie have filed affidavits attesting to the ability of the mother and her husband to care for the boys when they are with her, and the pleasure the boys have in being with her, and how they have fitted into the neighbourhood. In addition to the weekend access the mother has the following access: *six weeks during the summer school vacation *the entire Christmas Holiday except for Christmas Eve and Day *the entire Easter break of about 10 days If the father should move to Ontario with the boys he has offered two months in the summer; all the Easter and Christmas breaks and the spring break. He says he will pay for the cost of flying the boys to Saskatchewan and return for all the access except the Easter and mid-term break. (I am assuming the father meant airplane expenses, but he does not say so.) The mother provided me with comprehensive brief on the question of applications for variation of access and custody, including cases on the burden of proof, the question of the changed circumstances of the children and the best interest of the children. The application is made under section 17 of the Divorce Act, R.S.C. 1985, c.3 (2nd Supp.) which reads in part as 17(1) court of competent jurisdiction may make an order varying, rescinding or suspending, prospectively or retroactively... (b) custody order or any provision thereof on application by either of or both former spouses or by any other person. (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. The leading case on the question of changed circumstances of the children is Talbot v. Henry (1990) W.W.R. 251; (1990) R.F.L,. (3d) 415, Sask. C.A. In that case, Bayda, J.A. set out the procedure the judge must follow in variation applications. First the judge must determine if there are any changes in the circumstances of the children or presume as in this case if there will be any such changes if the father moves to Ontario. If there are no significant changes the judge cannot proceed to consider whether the proposed change is in the best interests of the children. must therefore compare the circumstances of the children when the Divorce Judgment was made on January 5, 1990 which gave joint custody of the boys to the parents, with no other corollary relief set out in the judgment to the circumstances now. The boys were at that time living in the home of the father, and mother had generous access as set out in the terms of their agreement of December 1988. That agreement included the term providing for the consent of both parents if the children were to be removed from Saskatchewan except for short holidays. Father's home has been the principal residence since then and mother has had the access set out above. The circumstances now are that the father intends to, and if the mother's application is not granted, will take the boys to Ontario for period of two and possibly three years. find that this is material and significant change in the circumstances of the children if the move is made. therefore turn to the question of what would be in the best interests of the children. There are great many cases arising out of the wishes of the custodial parent to leave the town, city or country where the custodial parent lives, taking the children with him/her, and the non-custodial parent wishes to prevent this from happening. In Heintz v. Heintz (1992) Sask. Decisions 1525-04 (Q.B.) the parents separated after 10 years of marriage, there was one child age 6. The parents entered into separation agreement providing that mother would have custody and father access and the agreement also provided that the mother was to give 45 days notice of any change of address. Mother wished to move, father applied to the court for an order barring her from moving or giving custody to the father or increased access. The mother was seeking better employment and wished to follow her new conjoint. refused to place the restriction sought upon the mother, but increased the access to the father. pointed out that in more recent years there has been an increasing tendency to allow the custodial parent to leave the jurisdiction or pursue stable relationship. In earlier cases in the 1970's (and before that) and the 1980's, there were great many cases preventing the custodial parent (usually but not always the mother) from moving even from one city to another in the same province, and from province to province or country to country. The custodial parent was (usually but not always the mother) and the parent with access usually, but not always the father. The courts made the orders preventing the moves upon the grounds that the custodial parent would not be able to exercise the access fixed by the court or by agreement. An example of the more recent jurisprudence in such cases is Levesque v. Lapointe 44 R.F.L. (3d) 31 (B.C.C.A.). The parents had children, born in 1982 and 1984. They moved from Quebec to British Columbia. They separated in 1985 and in 1987 entered into separation agreement providing for joint custody with the children living with the mother during the school year and with the father during the summer and out of weekends. The agreement provided that in the event the parents contemplated long term move outside Vancouver, the city where they were living, the custodial arrangements could be reviewed. Mother remarried and wished to move with her new husband to Alberta where they arranged accommodation. The father did not consent to this move, and mother applied for permission to do so. The chamber judge refused and the matter went to the Supreme Court of British Columbia. The children were then 1/2 and 10 1/2. There was no clause in the agreement of 1987 that either parent could not remove the children from British Columbia as set out above but the parents clearly contemplated that there might be request for such removal by one parent or the other. The appeal court pointed out that the mother's application was not brought as an application for variation of custody but as an application under the Divorce Act section 1(6) which provides: The court may make an order under this section for definite or indefinite period or until the happening of specified event and may impose such other terms, conditions or restrictions in connection therewith as it thinks fit and just. The British Columbia Court of appeal said that from section 1(6) (page 325): it appears that court of competent jurisdiction could impose residence restrictions as an incidence of custody, on the custodial parent, but that is not, of course what the appellant (mother) sought in her application. Instead the application appears to have proceeded in the court below as if the appellant were asking to be relieved of court imposed restriction concerning residence. Counsel for the respondent, as part of his argument, submitted that it was implicit in the joint custody order granted at the time of the divorce that the parties would remain in the same locality, because otherwise "co-parenting" was practical impossibility. We seriously question the assumption that an order for joint custody, which contains no other term, condition or restriction, can be taken to impose requirement that the parents live in close proximity to one another. The judgment goes on to say that it was conceded that the mother had been the children's primary care giver, the principal residence being with her in the school term and the father having the care of the children during the summer holidays. They found that the mother's wish to move to Calgary was bona fide and not motivated by wish to thwart father's access. The court quotes Carter v. Brooks (1990) 30 R.F.L. (3d) 53 Ont. C.A. Morden A.C.J.O.: In most cases, would think it is an important factor to take into account, in favour of the custodial parent, that the existing custody decision (by order or agreement) shows that from day-to-day point of view the best interests of the child lie with the child's being with the custodial parent. Added to this, it is reasonable to think that an incident of custody includes the determination by the custodial parent of where the parent and child shall live.... and The nature of the relationship between the child and the access parent will always be of importance. The closer the relationship and the more dependent the child is on it for his or her emotional well being and development, the more likely an injury resulting from the proposed move will be. The reason for the move is important. If the motive is simply to frustrate access, then it would not be expected that court would decide in favour of it. On the other hand, if the move is necessary, for example for the maintenance of employment this would count in favour of the move. In Oldfield v. Oldfield (1991) 33 R.F.L. (3d) 235 Blair J. of the Ontario Court (General Division) set out list of factors relevant in determining the best interests of the child as outlined in Carter v. Brooks (supra). The list is (1) The views of the custodial parent (which he said should generally be paid reasonable measure of respect); (2) The fact that existing custodial arrangements showed that from day-to-day point of view the best interests of child lie with the child's being with the custodial parent; (3) Determination by the custodial parent where parent and child will live, as an "incidence of custody"; (4) New family unit, if it exists, and how the well-being of that family unit bears on the best interests of the child; (5) The nature of the relationship between the child and the access parent (the closer the relationship and the more dependent the child is on it for his emotional well-being and development, the more likely an injury will result from the move); (6) The reasons for the move; (7) The distance of the move; (8) The child's views; and (9) The Divorce Act. R.S.C. 1985 (2nd Supplement) C.3, principle that child "should have as much contact with each spouse as in consistent with the best interests of the child". Among the Saskatchewan cases on the point are: Wells v. Wells (1984) 1984 CanLII 2646 (SK QB), 38 R.F.L. (2nd) 405. In that case the parties moved from Ontario to Saskatoon where the father was employed with the Potash Corporation of Saskatchewan commencing September 1981. They married in November of 1981, the child was born in May of 1982 and in July of 1982 mother moved with the child out of the matrimonial home and commenced proceedings for custody and maintenance and moved for interim custody and maintenance. On August 4th after hearing the application in chambers on affidavit evidence, gave inteirm custody to the maother. The trial on the issue of divorce, custody and maintenance was heard by Gagne J. Father had counterclaimed for decree of nullity or divorce and custody. Gagne J. granted the divorce and awarded custody to the father and access to the mother. Mother appealed and the court of Appeal reversed Gagne J.'s decision but added provision that neither party could remove the child from the jurisdiction without the consent of the other or court order. This order was made April 1983. Mother then moved for an order removing the restriction and for the reasons set out in the judgment her application was granted. On appeal to the Court of Appeal, this decision was upheld. Adie v. Adie 1991 CanLII 7796 (SK QB), 89 Sask. R. 183. Mother allowed to move to New Zealand with 12 year old son in her custody for period of one year. Grant v. Brotzel 1993 CanLII 9109 (SK QB), 115 Sask. R. 96, the mother permitted to move to British Columbia with the child in her custody. Menzies v. Menzies 1992 CanLII 8038 (SK QB), 107 Sask. R. 19 mother permitted to move back to her native England with an and year old child, where mother was lonely and unhappy and had made few friends in Saskatoon and father had separated from her and was living with another woman. Janette Rita Gordon (formerly Goertz) v. Robin James Goertz, Gagne J., U.F.C. 1035 OF 1990, unreported oral judgment. In that case, after lengthy trial on number of matters, including custody, awarded custody to the mother as the chief care giver to the child whilst the parties lived together and after they separated. The father was given structured but generous access. The petitioner mother is dentist, and after the trial and an appeal to the Court of Appeal where in the decision was upheld, mother then applied to take the child to Australia where she has been accepted at University to qualify as an orthodontist. She says she had applied throughout Canada and other places and this was the one place she was accepted. Father opposed. The matter was heard in Chambers and Gagne J. ordered that mother could move to Australia with the child, Samantha, and the respondent would have liberal and generous access to his daughter in Australia on one month's notice and provisions for possible access in Hawaii and ordered that the child not be removed from Australia by the mother. On appeal, the Court of Appeal upheld this order. am informed that the father has got leave to appeal to the Supremem Court of Canada on this matter. The Levesque (supra) case gave consideration to most of the relevant factors set out above. There is no dispute in that case before me that the father had, together of course, with his present wife, the day to day care of the children from their early years onward, except when they were exercising the access to the mother. quoted the father's remarks in his 1990 affidavit about what devastating thing it would be if the boys were uprooted from their home in Melfort and all their extended family, to make their home with their mother in Regina. Now, five years later it is according to father no longer devastating to uproot the boys but in their best interests to move them with him to "a virtual paradise" in Aurora. The mother now says that it would not be in the best interests of the boys to take them out of Saskatchewan, where their roots are and where their extended family lives, and of course where mother and her husband live. There is no suggestion that the boys are not well cared for in either home, and that they are unhappy with either parent or step-parent. The oldest boy is 11 and his brother is 9. felt anxious about how the boys themselves felt about the move, which of course they knew about. Suffice it to say that they were not wildly enthusiastic about the move, nor were they upset at the prospect but were mildly interested in the proposed move. In the meantime they told me that they were shortly going to fly to New Orleans to be met by their mother and their step-father (as they called their mother's husband) and she would take them to Mississippi where they would spend the summer whilst their step- father took some courses. Father's reasons for moving to Ontario are notunreasonable if the course he wishes to take is not offered atthe Dental College of the University of Saskatchewan. Father has not filed any medical certificate about his condition, nor has he in his affidavit said whether the course is available in the province. However, no objection was taken by the applicant to father's affidavit on that account and presume this was not an issue. I did not form the opinion that his move was to thwarthis ex-wife's access, since there does not seem to be any disputeabout this since 1990, and indeed friends and neighbours fromMacRorie filed affidavits stating how much the boys enjoyed theirvisits with their mother and how they fitted in with the peopleof that town and environs, and he has, in addition offeredgenerous access. In Korpesho v. Korpesho (1982) 31 R.F.L. (2d) 440, Monnin J.A. said at page 451: Society permits divorce and permits or even encourages remarriages. Once second stable union has been established the new spouses or the new family unit must be allowed to live normal family life. In country as vast as ours, with various economic regions, people may have to move from one province to another....in search of employment or to better one's type of employment. Because of the reasons given above: father beingthe long-time custodial parent, the reasons for the proposedmove, the generous access offered I dismiss the application ofthe mother. The father will therefore be allowed to remove the boys from the Province of Saskatchewan to the Province of Ontario for the purpose of taking the course offered by the University of Toronto. Mother will have access during the months of July and August, the entire Christmas holiday of two weeks starting Christmas 1995, the entire Easter holiday starting Easter of 1996, the entire mid-term break (usually in February). If the mother wishes to have long weekend access at her expense with reasonable notice to father she can arrange same. The costs of the travel to and from Saskatchewan will be borne by the father. There will be no order as to costs.

The Mother applied to vary the custody provisions of the decree nisis for divorce which provided for joint custody of the parties' 2 children, aged 11 and 9 years. Under the existing order the children's primary residence was with their Father. A custody investigation conducted in 1990 when the mother had first commenced this application had recommended that the existing arrangement be continued. The Father now intended, however, to move with the children to Ontario to take additional education. HELD: Application dismissed. 1)The Judge found that the move to Ontario was a sufficient change of circumstances to permit a variation application to proceed. She therefore proceeded to consider if the move was in the best interests of the children. 2)The Judge reviewed recent authorities from across Canada dealing with whether a custodial parent should be permitted to move with the children. 3)In the circumstances of this case the Judge was convinced that the move was reasonable and was not motivated by any desire on the part of the Father to thwart the Mother's access.

c_1995canlii5671.txt

E.J. Gunn IN THE SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: Boucher v. Boucher, 2006 NSSC 88 Date: 20060328 Docket: 1211-000053 Registry: Halifax Between: Charles Benjamin Boucher v. Christine Delores MacLellan Boucher Respondent Judge: The Honourable Justice Moira C. Legere Sers Heard: February 1, 2006, in Halifax, Nova Scotia Final Written Submissions: February 8, 2006 Respondent February 10, 2006 Applicant Counsel: M. Louise Campbell, for the Applicant J. Walter Thompson, Q.C., for the Respondent By the Court: [1] This application to terminate spousal support was commenced on the 22nd day of September, 2005. [2] The parties were married in Halifax on the 21st day of November, 1980, and began living separate and apart on August 3, 1993. They entered into Minutes of Settlement in February, 1996. This agreement was incorporated into the Corollary Relief Judgment and the Divorce Judgment pronounced the 24th day of April, 1996. [3] The parties had four children, Gillian, born May 6, 1981; Sheena, born October 31, 1982; Logan, born October 31, 1985; and Tessa, born April 8, 1987. The children remained with their mother in her custody at the date of separation. They are now 24, 23, 20 and 18 years old respectively. [4] Prior to the Minutes of Settlement there was consent order out of the Family Court wherein Dr. Boucher was to pay $6,000 per month. The Minutes of Settlement required the father to pay the mother the sum of $15,000 to settle all outstanding maintenance arrears accumulated to December 1, 1995. [5] Commencing December, 1995 until July, 1996, the father paid to the mother for her support and the support of the children the sum of $2,000 every two weeks. In July, 1996, the combined support increased to $2,500 every two weeks. [6] The Minutes of Settlement allocated responsibility for the Revenue Canada debt in the amount of $9,000 to the mother and any other debt then in her name. The father took responsibility for $69,500 in matrimonial debt and any other debt in his name. [7] There has been no variation of this order by court order since the Corollary Relief Judgment dated the 24th day of April, 1996. [8] The standard variation clause is contained in the Separation Agreement and refers to s. 17 of the Divorce Act. [9] Both parties were represented for the purposes of entering into the Minutes of Settlement. [10] The changes that have occurred since then are considerable: (1) (a) In June, 1999, Gillian graduated from high school. She went to Scotland for one-half year to pursue her education. The father provided financial support directly to her. Her father noted her tuition was “exceptionally high”. She started working in Edinburgh, once she left university. [11] The Applicant continued to pay the full child and spousal support to the Respondent, notwithstanding Gillian was in Scotland and he was assisting her directly. [12] For the period September, 1999 to and including June, 2000, while in school in Scotland, the cheques and deposits provided by Dr. Boucher totalled $11,181.44. In addition, in 2001 he paid her airfare to and from Scotland, repairs to her fiddle in the amount of $800, and in April, 2002, assisted to purchase her airline ticket back to Nova Scotia. He has continued to provide assistance to his oldest daughter, assisting her in her travel costs back to Scotland in September, 2002. (2) (a) In August, 1999, Sheena moved in with her father in Port Hood. At the time, she was attending grade 11 and continued to live with her father until graduation; (b) Sheena commenced massage therapy program, stopped and eventually returned to it. As result, it took her three years to complete the full program. In September, 2001, she attended Northumberland College in Halifax for this massage therapy course and left the program in 2002. She moved to New York, worked as nanny, returned to Nova Scotia in December, 2002. She returned to the massage therapy program in January, 2003 and graduated with her diploma in June, 2004. She worked in Halifax until August, 2005 and then left to live in Ireland. From August, 2001 to and including August 5, 2005, he contributed $43,430.97 to his daughter's course and living arrangements. These payments included her rent, food, utilities, phone, transportation, spending money and tuition. (3) (a) Logan graduated from high school in June, 2004. Logan took year off school to work and decide on an appropriate career. During that period of time he lived, for the most part, with the father and his spouse, Karen Boucher, in Port Hood; (b) He is currently enrolled in two-year program in environmental studies at community college in Vancouver. His transportation costs have been provided by the father, and the father has contributed $11,129.04 to January 18 with another $645 for the end of January. Exhibit 4, Tab also suggests total of 21,430.76 has been paid to support Logan in his education, the cost of an apartment, food, utilities, tuition and books while he is completing this program; The father has attached as an exhibit summary of expenses paid by him for Logan to fly to B.C., to cover portion of his tuition, and to provide damage deposit and rent etc.. This summary has not been challenged. (4) (a) The youngest child, Tessa, graduated from high school in June, 2005. She enrolled in hair design college in Halifax and her expenses are being paid for by her father directly. This is 10-month program to be completed in June, 2006; (b) The father has provided summary sheet listing the expenses paid by him for Tessa as of October 4, 2005. They total $5,580.76 and include tuition, damage deposit, September's rent, bus pass, groceries, full tuition, October's rent and bus pass and other items necessary for her maintenance. [13] Dr. Boucher has provided extensive records supporting these payments and these records have not been challenged by the Respondent. Oral Agreement [14] As result of the two older children leaving the mother's home, the parties entered into an oral agreement that the biweekly payments would be reduced to $2,000. There was no financial contribution by the mother to the children in the father's care. [15] This agreement was recognized by Maintenance Enforcement and by the parties. It is evidenced by their conduct, their reliance on the terms of the agreement, and the return of the original cheques in the amount of $2,500. The father paid by way of post-dated cheques directly to the mother and the mother destroyed any cheques she received from Maintenance Enforcement in the previous $2,500 amount. Maintenance Enforcement was also given instructions to return what cheques they had. [16] The Maintenance Enforcement records are current up to January 14, 2006. They show consistent payment of $2,000 every two weeks from July, 2003 to July, 2004. Thereafter, there are consistent payments of $1,836 through Maintenance Enforcement and the balance up to $2,000 to GMAC for the Respondent’s car loan. Maintenance Enforcement show payments of $2,500 biweekly November and December and one for January. [17] The $2,000 maintenance cheques were cashed. This arrangement continued until June, 2003. Maintenance Enforcement returned the post dated cheques to Dr. Boucher, including the January 9th and June 26th post dated cheques reflecting the acceptance of the agreement of the parties. [18] The Applicant testified he had no difficulty in the past and has no difficulty continuing in future to pay the costs of his children's post secondary education. He wishes to do so directly and provides information to confirm that they do not have any difficulty dealing with their father directly to obtain support. The Respondent does not contest this method of providing child support for the children. There is no need for the court’s intervention at this stage between the father and his children. [19] Therefore in 1999, in addition to spousal and child support as mandated, the record shows that Dr. Boucher paid for his daughter in Scotland approximately $6,981 for the period of time between September and December with balance of $4,200 between January and June, 2001. [20] The additional payments documented in 2001 for Gillian include expenses such as airfare to Scotland, $800 for repairs to fiddle. Dr. Boucher paid $10,857 of the total $43,000 for the massage therapy course. [21] In 2002, he would have paid the regular maintenance payments plus $10,857, plus airfare back and forth to Scotland for the oldest child. [22] In 2003, he paid the $52,000 in child and spousal support, plus $10,857 towards the ongoing massage therapy course and the cost of living. [23] In 2004, again he paid approximately $10,857, plus the $52,000. [24] 2005 is the final year for the massage therapy course. It is also the first year for Logan and the 10-month course for Tessa. The total payments in excess of the child and spousal support payments as mandated by court order, would equal $32,786, approximately. [25] In consideration of an attempt to get some kind of approximation at what percentage of his net professional income went to child support and spousal support between 2000 and 2005, one has to consider the excess payments over and above the mandatory child support payments. [26] While the Applicant may receive the benefit of the tuition credits for some of the children, many of the expenses that he is paying towards rent and food are not expenses for which he can claim deduction and thus, the additional amounts can only be compared to the $52,000 child and spousal support figure which is deductible on his income tax return, if one adjusts for tax implications to Dr. Boucher. [27] Finally, in reflecting on the total financial picture, it ought to be noted that Dr. Boucher, while married, entered into two business ventures, neither of which was successful; resulting in two bankruptcies. There is no information that these businesses were entered into without the consent of Ms. Boucher. These parents and spouses come away from this relationship with few, if any, assets and very little by way of retirement plans. [28] In addition to the support payments over and above the court ordered payments, Dr. Boucher has also provided to the Respondent additional financial support. In September, 2000, the Respondent requested that he co-sign for the purchase of leased vehicle for her, in order to assist her to obtain financing for the vehicle. She was to pay the monthly payments of $326. [29] In September, 2002, her account was in arrears. GMAC contacted the Applicant and required him to pay the monthly payments. He deducted these payments made from her maintenance. [30] At the expiry of the lease agreement of December, 2003, GMAC contacted Dr. Boucher to pay, in addition, $8,000 worth of excess kilometres and repairs, relating to the Respondent’s use of her car, which the Respondent refused to pay. Dr. Boucher has made arrangements for monthly payments to GMAC in the amount of $163.92 and has deducted that from the Respondent's ongoing support payments. [31] The Applicant has submitted letter from GMAC dated April 5, 2004 indicating that the arrangements established with their office to pay $163.92 have been accepted. They warn him, however, that one missed payment would bring the full balance due. [32] The Applicant has been unable to negotiate with the Respondent for reduction in the current combination child and spousal support. He attempted to seek reduction of $500 every two weeks, when his third child, Logan, graduated from high school in June, 2004 and moved in with him. [33] At the time the request was made, Gillian, Sheena and Logan were not residing with the Respondent. The Respondent was receiving $2,000 biweekly, in addition to which she was not contributing to the costs of these children. [34] The Applicant provided written notice to the Respondent in August, 2003, that when the children of the marriage were no longer dependent he would seek change in the support. He encouraged her to develop strategy for employment and self sufficiency. Dr. Boucher's Financial Situation: Current earnings [35] Dr. Boucher prepared statement on October 19, 2005 showing net professional income of $294,735 or $24,561 per month before tax. Given his circumstances and his obligations, his monthly expenditures are not excessive. They include the secondary school expense for his children. His 2004 income tax return shows line 150 income of $296,567. He paid $52,000 in spousal and child support in the 2004 year. [36] His income for 2005 appears to be similar. He ceased paying support to the Respondent in the month of August, 2005. His wages were garnished as result of enforcement action requested by the Respondent. [37] In 2005, as in some previous years, he would have paid additionally at least $10,000 directly to Sheena’s for her course and living expenses and at least 10,629 for Logan, as well as $5,580 for Tessa. Historical earnings [38] The Applicant has provided the history of his earnings from 2000 to 2005. The Applicant was born November 28th, 1949. He commenced his practice in the Margaree area for two years when he met the Respondent. He was 30 when he married. He is currently 56 years old. [39] Subsequent to the separation, the Applicant continued his practice in Margaree. The Respondent moved with the children to Antigonish and commenced taking some courses in Antigonish. She did not complete these courses. year after this move she moved back to Broad Cove with the children. [40] In 1994, the Respondent told the Applicant that if he continued to live in the Margaree area in close proximity to herself that she would move again with the children. [41] After discussions between the two, the Applicant agreed, wanting his children to remain close to their friends and school. He gave up his practice in Margaree of approximately 2,500 patients and moved to commence practice in the Strait Richmond area. [42] am satisfied that this move was initiated at the request of the Respondent and that the Applicant willingly complied for the betterment of the children. This move was mutually beneficial and, while causing him to begin again, also met with his expectation to reduce his workload. [43] Dr. Boucher experienced reduction in his income to accommodate this move. The maintenance was reduced to $2,000 every two weeks commencing December, 1995, continuing every second week thereafter until July, 1996 to accommodate the anticipated reduction in his income. They agreed, however, that in July, 1996, the maintenance would be increased to $2,500 every two weeks, and the agreement to settle all outstanding arrears which accrued until December 1, 1995 resulted in $15,000 lump sum payment by Dr. Boucher to the Respondent, which was incorporated into the Corollary Relief Judgment and payable on or before January 5, 1996. [44] The Applicant worked in the Strait Richmond Hospital from 1994 to 1998. Save for few exceptions, he continued to pay the support as originally ordered under the Corollary Relief Judgment. He believed that during the initial period, the Respondent was actually taking in more income as result of his child and spousal support payments than he was retaining himself. do not have his income tax statements from that year to verify his assertion. [45] The history of the children leaving their mother’s care and either moving in with their father or being supported by their father has been discussed and his financial contribution proven. [46] The Respondent was less certain about her contributions. She believes that she contributed $1,000 to set her daughter up in an apartment in Halifax when she first commenced her course. She provided little accurate financial disclosure. She has no serious contest with the Applicant's financial documentation. [47] The Applicant ceased paying support in August, 2005. The Respondent took action with Maintenance Enforcement. She requested enforcement of the amount in the original order and she received $10,000 in November and December, 2005. She also received directly $2,000. She has not verified by her records or memory what she received in August 2005. [48] Her calculation of arrears under the old order is not reliable. There are gaps in her records and her memory is mostly speculative recall not supported by documentation. She admits she has not been good bookkeeper. She denies the existence of voluntary agreement in the original reduction of support payments from $2,500 every two weeks to $2,000 every two weeks. The documentation and her conduct disprove her allegation that she had no part in this agreement. [49] Once this garnishee was in place, the parties reached an interim understanding that if the Respondent were to receive the garnished amount she would have to pay directly to the children that which was required to sustain them in their post secondary pursuits. [50] The Respondent was born on September 12, 1952. She attended high school in Inverness and went to Sydney where she completed medical secretarial course. She lived in Halifax for approximately 10 years working at the Grace Maternity Hospital and the Nova Scotia Rehabilitation Centre and assisted health professionals with their research. She attended St. Mary's University and Dalhousie University to take some courses training her to work in medical libraries and complete data analysis. [51] The Respondent was 28 when she married the Applicant and was working as librarian at the Nova Scotia Rehabilitation Hospital in Halifax. They met in 1980 and she advised him that she was pregnant within two weeks of their meeting. They married in November, 1980. She is currently 52 years old. [52] have no record of her earnings pre marriage for the 10 years she worked. have the income tax summary for the Respondent from 2000 to 2002. She was bankrupt in 2000, declared income of $48,000 in 2001 and $46,000 in 2002. She declared support payments of $43,388 in 2003 paying tax on that in the amount of 10,541 (she is in arrears of taxes). She declared support income of $38,244 for 2004. Her current income statement shows income of $3,978, as she does not declare the payment to GMAC for her car as earnings. [53] The Respondent left Halifax and moved to the Inverness area. She did not work outside of the home once they were married. Up to separation, this was almost 13 years occupied with raising the children. She was 40 years old when they separated. The Respondent was 46 when the first two children left home and 51 and 52 when the last two children left home. [54] Neither she nor Mr. Boucher had any children from prior relationships when they entered into this marriage. When they married in November, 1980, the Respondent moved from Halifax to Inverness County and occupied herself with care of the four children while Dr. Boucher continued his practice in Margaree Forks. She acknowledges she did her husband's bookkeeping. [55] She moved away from Inverness taking the children with her in 1994. She returned to Inverness and the parties were divorced by Divorce Decree in 1996. [56] Neither she nor he have savings, pre separation RRSP's or equity in the home. [57] She and the four children lived in large, old home previously used as rectory. She was charged $300 month rent. The cost of fuel for heat and propane is enormous. She testified she pays approximately 8-$9,000 year on propane and furnace oil. Nonetheless, she continues to reside in this rectory, even after the four children have left. [58] Since the separation and divorce, in spite of her educational background, she has not pursued seriously, if at all, any educational retraining or furthered her education in her field of expertise. Since the children have become independent, she occupies herself with volunteer work in the community. She confirmed she has made little to no effort to find serious employment, does not believe there is employment in Inverness, and prior to this hearing was not prepared to leave the area. She indicated in her testimony she may visit her family outside of Nova Scotia after the Divorce. [59] She has taken in sewing but it has not been practical course of employment. While she has done some personal care work for elderly and infirm, she does not wish to pursue this by increasing her credentials and doing more extensive personal care work, as she does not think this is suited to her. She believes that there is no appropriate work for her in Broad Cove. [60] She expects the Applicant to continue to support her unabated and without termination, while paying all expenses related to the children’s education. She believes she is entitled to this support. Absent in her testimony and her conduct is any insight or appreciation that she has responsibility to pursue employment or retraining to assist in her own support. [61] She fell behind in her income tax; was forced into bankruptcy second time; and was subsequently in difficulty with Revenue Canada who eventually served Dr. Boucher with third party demand to garnishee the support payments. This garnishee was withdrawn. She believes she owes them in the vicinity of $29,672, most of which his penalty for non payment of tax. [62] Ms. Boucher believes she has lived hand-to-mouth for 11 years. She acknowledges she has no credit. She spends $450 per month on medications. She confirmed that she sold many of her possessions to obtain money to fly to Scotland to visit her daughter on one occasion and had three yard sales to get money to live. [63] In August, 2005, after her children Logan and Tessa left for school, Dr. Boucher ceased payment maintenance. At that point, without his support and job, she had no income. She sought enforcement through Maintenance Enforcement. [64] In October, 2005, Maintenance Enforcement began to collect on her behalf, under the old Corollary Relief Judgment. Dr. Boucher sent letter to the Respondent’s counsel advising that the Respondent would have to pay one-half of the expenses associated with Logan and Tessa, pending the outcome of this hearing, if the children’s expenses were to be current. They have abided by this arrangement pending this decision. [65] At 53 years old, the Respondent believes that she has only one option and that is to continue to receive spousal support. She worked at raising children and has not worked outside the home since she married. She believes she has no marketable skills and no ability to find employment in Cape Breton. [66] She acknowledges that it is time that she left the rectory and found other accommodation. [67] She has received $10,000 as an advance from friend in order to purchase car. [68] She has provided no documentation to support her calculation of arrears. Despite her agreement of taking reduced amount of money by way of $2,000 biweekly, she has included that calculation in her arrears back to 1999. [69] It is my finding that the agreement to reduce the monthly child and spousal support was done with the consent of both parties. This agreement was accepted by Maintenance Enforcement. [70] She has used her bank statements, which are not complete, to calculate actual payments made. [71] Because of the nature of the evidence, the exhibits, and her clear admission that her information is based on memory and some account records, prefer the evidence of Dr. Boucher with respect to the accounting as it relates to the actual payments made, verified by documentation. [72] The Respondent acknowledges full payments, in accordance with their agreement in 2001 and 2002. [73] For the 2003 year, Ms. Boucher claims support payments received in the amount of $43,388. Dr. Boucher claims on income tax returns, payments of $52,000. His cheques verified $51,758, except for $200 transfer to Sheena Boucher on February 18, 2003. This $200 to Sheena took place by direct transfer in February, 2003 when Ms. Boucher received the full maintenance payment pursuant to their agreement. Therefore, Dr. Boucher is either missing cheque or the accounting reflects total payments of $51,754; $42 of which must relate to bank charges, leaving balance owing of $200. [74] Cross-referencing that with the Applicant's Affidavit 4, Tab 2, he claims expenses for Sheena's education of $43,430. [75] The difference in the accounting comes when GMAC began to require Dr. Boucher to pay the lease payment of $328. Thus, in 2003, from January to July, all payments reflect $2,000 directly to Ms. Boucher. In August, the cheques begin to reflect payment directly to Ms. Boucher, minus the direct payments to GMAC. [76] Her 2004 T-1 General shows spousal support payments of $38,144 for the 2004 year. Dr. Boucher shows payments of $52,000 on his tax return for the 2004 year. [77] In reviewing the Applicant's Affidavit 3, at Tab 5, the actual payments provided by way of post-dated cheques show total of $50,164. However, review of the Respondent's bank statements indicates there was transfer deposit on July 8, 2004 for $1,836, making up the $52,000 for that year. [78] Her Affidavit shows that she is uncertain as to what the arrears might be for the 2004 year, claiming that she was entitled to receive $65,000. have already concluded that the parties entered into an agreement and advised Maintenance Enforcement of their agreement. They varied their agreement outside of the court process by their words, their conduct, and their subsequent actions. The amount due under their varied agreement would be $52,000 and that is, in fact, what his records show he paid. [79] The cheques to Maintenance Enforcement were adjusted to reflect his third-party payment to cover the lease agreement that she was obliged to pay. [80] For the 2005 year, again, she claims an amount owing of $65,000 while, in fact, it should reflect $52,000. She believes she received 40-$41,500. She is unclear as to which figure to rely on. Dr. Boucher acknowledges payments with receipts of $35,148. He does not have summary sheet similar to that which is provided for 2004 in his Affidavit 3, Tab 7. In addition, with the garnishee in place, it is difficult to determine the total amount paid. [81] She testified that she received no money in September and October, 2005. Maintenance Enforcement garnished Dr. Boucher's wages at the end of October and she received $10,000 in November and December. She also received directly from Dr. Boucher $2,000 in November for total of $12,000. In January, 2006, she has received $2,500 from Maintenance Enforcement. [82] If calculate from the Maintenance Enforcement statement, commencing January 5th, he paid 16 payments of $1,836 for total of $29,376; five payments garnisheed at $2,500 for total of $12,500; and if he paid for her lease, the damages and the extra kilometres, $327.64 per month for period of 26 months commencing April 16, 2004, concluding in or about May, 2006, it would equal an additional $3,931.68 (for 2005) for total of $45,807.68, according to their amended agreement, reflecting an underpayment of $6,188, subject to Dr. Boucher proving with Maintenance Enforcement other payments. [83] The calculation for the arrears, if any, in 2005 should consider all payments made to Ms. Boucher, including those made to GMAC on her behalf. The total owing for 2005 to December 31 should be $52,000. Employment and Self-sufficiency: [84] The parties have lived separate since 1994. The Respondent gave evidence she is not seriously pursuing any retraining or education to become employable. She criticized the Applicant for providing the children with computer in her home. She professed to be against computers as the children grew up and refuses to consider computer training as an option. [85] She is able to do personal care work but does not like this avenue of employment. She sews and favours interior design but thinks no one in her geographical area can afford her services. She testified she won literary award for her writing and sample of her writing for local paper was provided by the Applicant. She is articulate. [86] In this case, the parties have lived together for little under 13 years. Four children were born of this union. Certainly, during the early years, they demanded the bulk of the Respondent’s time and efforts. Later in their lives, after high school, they have spent more time in their father’s home and now all live outside the home. It is an error to suggest the mother has been the sole parent. Clearly, she was during their early years the primary parent. [87] Dr. Boucher has been and continues to be generous parent. He has historically provided for his children and supported their residence in familiar area, leaving his own practice to allow the children to remain in familiar environment. He continues to exhibit patience and generosity with his children supporting them through the sometimes rocky and interrupted road to independence. He has been generous to his former spouse outside the agreement. It does neither party nor the children any good to diminish or distort either parents' contribution historically. [88] Section 15.2 of the Divorce Act sets out the legislative framework for the assessment of spousal support. It reads as follows: “15.2 (1) court of competent jurisdiction may, on application by either or both spouses, make an order requiring spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse. (2) Where an application is made under subsection (1), the court may, on application by either or both spouses, make an interim order requiring spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse, pending the determination of the application under subsection (1). (3) The court may make an order under subsection (1) or an interim order under subsection (2) for definite or indefinite period or until specified event occurs, and may impose terms, conditions or restrictions in connection with the order as it thinks fit and just. (4) In making an order under subsection (1) or an interim order under subsection (2), the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including (a) the length of time the spouses cohabited; (b) The functions performed by each spouse during cohabitation; and (c) any order, agreement or arrangement relating to support of either spouse. (5) In making an order under subsection (1) or an interim order under subsection (2), the court shall not take into consideration any misconduct of spouse in relation to the marriage. (6) An order made under subsection (1) or an interim order under subsection (2) that provides for the support of spouse should (a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown; (b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage; (c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and (d) in so far as practicable, promote the economic self-sufficiency of each spouse within reasonable period of time.” [89] After almost 13 years of cohabitation and since separation, the mother has continued to receive spousal and child support; initially in the amount of $6,000 per month, then in 1995, $4,000 per month; then in July, 1996, $5,000 per month and, when the first two left home, in the amount of $4,000 per month. [90] Other than the $1,000 she referred to, she did not bear the financial responsibility for the support of the first two children in their educational pursuits. Up until 2004 and 2005, the money she received supported her and the two teenage children until they left home. [91] The legislation must be looked at globally. The Respondent ignored her responsibility to move towards some sort of self sufficiency. She is intelligent, able, articulate, not disadvantaged by physical illness and has not been subject to the ordinary restraints of children for some considerable period of time. [92] What is the Respondent entitled to at this stage? [93] The parties cohabited for little less than 13 years between November, 1980 and August, 1993. They separated. The children were 12, 11, and 6, respectively. In 1999, the two oldest children were outside the mother's residence and being supported by the father. The remaining two children were 14 and 12 at that time. Logan left school in 2004 and Tessa in June, 2005. Both of these children were supported by their father to date and look forward to graduation in June, 2006 and June, 2007. [94] The mother was fully engaged in the employment market for 10 years prior to marriage. At least since 1999, the mother ought to have begun to invest some energy and effort into refresher courses, retraining, upgrading and otherwise plan how she intended to assist in her own support. By that time, she had been separated for six years. She was 46 at the time and both children were in high school. [95] Given her circumstances, her qualifications, her ability, her prior history of employment, the length of the marriage and age at separation, it is unrealistic to expect to be supported for life and not to have to contribute in some way to her own support. [96] Four children require considerable effort. Each parent has participated and the children are nearing self sufficiency and independence. Dr. Boucher worked 70 hours per week until he moved in 1994 to the Strait Richmond area. He proposed to carry on practice in two offices. Whether that has required extensive hours is unknown to me. However, he has financially supported his children through their various endeavours. He is 56. It is unrealistic to expect he can continue working without serous thought to restructuring his work to plan for retirement. Both parties must plan for their future. [97] While cohabiting for only 13 years, four children is relatively large family by today’s standards. The effort and the Respondent’s absence from the workforce during their early childhood is a significant factor. have considered all factors in the Divorce Act respecting spousal support and the submissions of counsel including reference to the Spousal Support Guidelines. [98] This is considered medium-term marriage. In this case, the higher income spouse is paying for the children directly to the children and paying spousal support directly to the Respondent. The Respondent has no children living with her and income only from spousal support. Thus, the payor is paying support in two different directions with obvious and differing tax consequences. [99] The formula suggested by the Spousal Support Guidelines reduces the payor spouse's income by the grossed up notional table amount and grossed up actual expenses. In this case, we have the actual historic and ongoing support being given by the father. In 2006, one child graduates and will need transitional support into the workplace. The third child will remain in university until June, 2007. To December, 2005, the Applicant testified this cost him in excess of $20,000. Another year, one can assume, he will spend 15-$20,000 as the child is in B.C.. That is at least $30,000 for the 2006 year, figure which must be grossed up and deducted from the payor’s income. [100] The third stage is to determine the adjusted gross income difference which is the same, given the Respondent has no independent income. The duration at maximum is 13 years. [101] Using current figures and projecting backward would have put the parties at the high end of the range of spousal support, if consideration of child support were not then in issue. Using the guidelines, we are already approaching the end of the 13-year period where, on the facts of this case, the Respondent should have been well within realizing some sort of independent living. She has not begun to address this. [102] Given the number of children, I am extending the guideline beyond the maximum suggested of 13 years but at a rate well within the ability of the Applicant. He has high-end costs for the next one and one-half years. Thereafter his children, in accordance to their current plans, will be mostly independent, unless post graduate work is considered. The father has shown no reluctance to assist them in their educational plans and transitional stages. [103] The current figures directed to finalize his obligation and assist the mother to retrain are within his means and ability to pay. The mother must develop a reasonable strategy immediately to ensure September enrollment is possible. [104] The mother has put forward no plan or strategy to assist herself or the court in determining what would support her efforts towards self sufficiency. She can decide to find work in an area with better employment prospects or immediately attend courses to upgrade, refresh or enhance her ability to support herself. Community colleges offer wide variety of course selection that provide realistic prospect of employment, if not in Cape Breton, elsewhere. [105] The option to retrain or reeducate herself must be built on her current strengths and historic employment such that she maximizes her potential. am not suggesting course that begins anew without the necessary foundation to put her in state of employability within two years. [106] To assist her in effecting this goal, the Applicant shall continue to pay $3,000 per month from January, 2006 to December, 2006. do not have any household maintenance figures for the Respondent once she moves from her current location. The $3,000 month will allow her to cover her basic reasonable living expenses and pay tuition at community college or other educational institution. The Respondent can supplement her income through employment. [107] In January, 2007 to December, 2007, the support will be reduced to $2,500 per month. If tuition is due in September, summer earnings can be put towards this tuition. During the summers, the Respondent should be able to find summer and supplementary work. [108] Thereafter, between January, 2008 to December, 2008 he shall pay $2,000 per month, to assist in a transition to the workplace completely. Support will cease at that point. [109] In the event the Respondent seeks to continue support, the onus shall be on her to show her efforts at retraining and employment and her continuing entitlement. [110] The father will continue his direct support of the children remaining dependant as they complete their current courses according to their current schedule. [111] The third party payments for her car shall, in accordance with the allowable tax law, be considered third party payments by way of support. [112] Arrears for 2003 and 2005, if any, shall be payable by September 1, 2006. [113] Counsel for the Applicant shall draft the order. Legere Sers, J. March 28, 2006 Halifax, Nova Scotia

The parties were married for thirteen years and had four children, who resided with the mother immediately following the divorce. The father paid one monthly sum ($6,000) comprised of both spousal and child support. Over a ten year period, all of the children had graduated from high school; two of the children had moved in with the father and he provided support directly to the other two children while they continued their education. After the first two children moved out of the mother's home, the parties orally agreed to reduce the child support payments. The parties were unable to negotiate a further reduction in the combined child and spousal support after the third child moved out of the mother's home. Since the parties' separation and divorce, the mother had not seriously pursued any educational retraining or furthered her education in her field of expertise; since the children had become independent, she occupied herself with volunteer work. The father now applied to terminate spousal support. The father shall continue to pay the sum of $3,000 per month as spousal support for one year; for the following year, the support will be reduced to $2,500 per month; in the following year, support shall be reduced to $2,000 per month, after which support will cease completely; the father shall continue his direct support of the children remaining dependant as they complete their current courses. Although the mother's effort in looking after four children and her absence from the workplace during the children's early years were significant factors, she had ignored her responsibility to move towards some sort of self sufficiency; given the number of children, the court extended the formula under the Spousal Support Guidelines beyond the maximum 13 year period; however, the mother must develop a reasonable strategy immediately to ensure that she either begins work in an area with better employment prospects or immediately attends courses to upgrade, refresh or enhance her ability to support herself.

4_2006nssc88.txt

nan QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2005 SKQB 263 Date: 20050608 Docket: Q.B.C. No. 21/2004 Judicial Centre: Regina BETWEEN: HER MAJESTY THE QUEEN and KEVIN CHARLES LENIUS Restriction on Publication: The publication of these reasons in any way is prohibited until after the trial and after the appeal period has expired and if there is an appeal, until the appeal process has been completed or until further order. Counsel: Alistair B. Johnston, Q.C. for the Crown Bobby (Bob) P. Hrycan and Robin Neufeld for the Kevin Lenius JUDGMENT BARCLAY J. June 8, 2005 [1] Michelle Lenius was killed in Regina, Saskatchewan, on November 4, 2003. Her husband, Kevin Lenius, is charged with second degree murder contrary to s. 235 of the Criminal Code, R.S.C. 1985, c. C-46. The Crown tendered a number of statements that were made by the deceased to several Crown witnesses concerning two previous incidents. The first incident took place in August 2003, in which Michelle Lenius alleged that she was choked by Kevin Lenius after he confronted her as to where, and with whom, she had previously been. The second alleged incident occurred on October 17, 2003, when Michelle Lenius was again confronted by Kevin Lenius as to where she had been. On this occasion, he was waiting for her at her residence in the kitchen with the light outs and his car hidden from her view. Kevin Lenius beat and then choked Michelle Lenius until she thought she was going to die. He then sexually assaulted her. Kevin Lenius threatened to kill Michelle Lenius if she did not drop the assault and sexual assault charges. [2] The Crown seeks to admit the two previous incidents of choking as similar fact evidence to prove issues of motive, intent and modus operandi. The Crown also seeks to admit several hearsay statements concerning the previous incidents of assaults and threats for the truth of their contents as being relevant to the issues of motive, intent, and modus operandi. 1. Is s. 589 of the Criminal Code bar to the admissibility of Michelle Lenius’ statement to the police concerning the charges of October 17, 2003? 2. Are the two previous incidents of choking which occurred in August and October admissible as similar fact evidence? 3. Are the hearsay statements made by Michelle Lenius to her friends, family and co-workers admissible under the principled approach? 1. Is s. 589 of the Criminal Code bar to the admissibility of Michelle Lenius’ statement to the police concerning the charges of October 17, 2003? [3] Counsel for Kevin Lenius has argued that s. 589 of the Criminal Code should be considered bar to the admissibility of statements made by Michelle Lenius to Constable Ryan Dureau of the Regina City Police which resulted in Kevin Lenius being charged with assault causing bodily harm contrary to s. 267(b) of the Criminal Code and sexual assault contrary to s. 271 of the Criminal Code. [4] Section 589 of the Criminal Code states the following: 589. Count for Murder—No count that charges an indictable offence other than murder shall be joined in an indictment to count that charges murder unless (a) the count that charges the offence other than murder arises out of the same transaction as count that charges murder; or (b) the accused signifies consent to the joinder of counts. This provision of the Criminal Code describes the procedure to be used when determining whether count charging an offence other than murder may be joined in an indictment to count charging murder. This has no bearing on the admissibility of statements, as those matters should be dealt with as evidentiary issues. Kevin Lenius is only charged with second degree murder. 2. Are the two previous incidents of choking which occurred in August and October admissible as similar fact evidence? [5] The Crown has argued that the August and October choking incidents are admissible as similar fact evidence to prove issues of motive, intent and modus operandi. It is a well established principle in Canadian law that similar acts and other discreditable conduct evidence is presumptively inadmissible. The admission of similar fact evidence is an exception to this rule. The “similar fact evidence rule” was clearly enunciated in v. Handy, 2002 SCC 56 (CanLII); [2002] S.C.R. 908, at para. 55 Similar fact evidence is presumptively inadmissible. The onus is on the prosecution to satisfy the trial judge on the balance of probabilities that in the context of the particular case the probative value of the evidence in relation to the particular issue outweighs its potential prejudice and thereby justifies its reception. [6] Handy, supra, and its companion case, v. Shearing, 2002 SCC 58 (CanLII); [2002] S.C.R. 33, are both highly instructive cases in which the Supreme Court of Canada has delineated framework for more consistent application of the principled approach to determine the admissibility of similar fact evidence. This framework can be divided into three categories which require examination and assessment: the probative value of the evidence; the assessment of the prejudice; and, weighing up the probative versus prejudicial value. (a) The Probative Value of the Evidence [7] The probative value of similar fact evidence is derived from the improbability of coincidence and whether this improbability supports the double inference that the accused has specific propensity by virtue of prior acts and this specific propensity has manifested itself on question in issue. When determining whether this standard has been met, the trial judge must encroach within the jury’s domain and weigh the evidence in limited manner: v. Arp, 1998 CanLII 769 (SCC), [1998] S.C.R. 339 (1998), 129 C.C.C. (3d) 321 (S.C.C.) at paras. [8] In Handy, supra, the Supreme Court of Canada has identified four non‑exhaustive criteria to be used to assess the probative value of the similar fact evidence. These factors will assist the trial judge in obtaining proper understanding of the principled approach. These criteria include: the issue(s) in question; the presence or absence of collusion, similarities and dissimilarities between the facts charged and the similar fact evidence; and, the strength of the evidence that the events occurred. (i) Identification of “The Issue(s) in Question” [9] In order to assess the probative value of the similar fact evidence, it is necessary to examine the issue for which the Crown seeks to adduce the evidence. The Supreme Court of Canada in Handy, supra, emphasized the importance of issue identification and held that the determination of whether the probative value exceeds the prejudice can only be determined in relation to the purpose for which the similar fact evidence is being tendered. By focussing on the issues to be proved, this ensures that the propensity evidence that is sought to be admitted goes beyond simply demonstrating the “bad character” of the accused. If the issues cease to be in dispute, then the evidence becomes irrelevant and should be excluded: Handy, supra, at para. 47. (ii) The Potential for Collusion [10] The admissibility of similar fact evidence is dependent upon the improbability of coincidence and, as result, collusion is crucial factor which must be addressed by the trial judge as part of their gatekeeper function. In Handy, supra, Justice Binnie stated at paragraph 112 that “where there is some evidence of actual collusion, or at least an ‘air of reality’ to the allegations, the Crown is required to satisfy the trial judge, on balance of probabilities, that the evidence of similar facts is not tainted with collusion.” [11] In Shearing, supra, the mere opportunity for collusion or discussion was insufficient to trigger the gatekeeper’s function. However, in Handy, supra, the issue of collusion was raised where the complainant and the similar fact witness had met previous to the alleged sexual assault and discussed the accused’s criminal record, the witness’ previous abuse suffered by the accused and the money the witness received from the Criminal Injuries Compensation Board for the sexual abuse. (iii) Similarities and Dissimilarities Between the Facts Charged and the Similar Facts [12] The principle of probative value is driven by the nexus between the similar fact evidence and the offences alleged. The court listed several non-exhaustive factors to determine whether nexus exists between the similar fact evidence and the charged facts: proximity in time of the similar acts; the extent to which other acts are similar in detail to the charged conduct; number of occurrences of the similar act; circumstances surrounding or relating to the similar acts; any distinctive feature(s) unifying the incident; and, intervening events. (iii) Strength of the Evidence that the Similar Acts Actually Occurred [13] The strength of the proffered evidence will be an important factor in assessing the probative value of the evidence. It was stated in Handy, supra, at para. 134: ... [W]here admissibility is bound up with, and dependent upon, probative value, the credibility of the similar fact evidence is factor that the trial judge, exercising his or her gatekeeper function is entitled to take into consideration. Where the truth of the evidence is contested, the cogency of the evidence will suffer. (b) Assessment of the Prejudice [14] In assessing the prejudice of the similar fact evidence, Justice Binnie in Handy, supra, drew distinction between moral and reasoning prejudice. Both of these forms of prejudice are relevant to the assessment of admissibility. Moral prejudice refers to the risk that the similar fact evidence will be used for “[t]he forbidden chain of reasoning to infer guilt from general disposition or propensity” (Handy, supra, at para. 139). Accordingly, morally reprehensible and socially repugnant act will be highly prejudicial and therefore require high degree of probative force to overcome the prejudice: see Shearing, supra, at para. [15] Reasoning prejudice is “the distraction of members of the jury from their proper focus on the charge itself” (Handy, supra, at para. 144). This distraction can take several forms which may include distraction from rational analysis by sentiments of condemnation and revulsion or preoccupation with similar acts to exclusion of the act charged. The danger of reasoning prejudice is the possibility of wrongful conviction. (c) Weighing up the Probative Versus Prejudice Value [16] In order to have the evidence admitted as an exception to the presumptive inadmissibility of similar fact evidence, the trial judge must be satisfied on balance of probabilities that probative value of the similar fact evidence outweighs the prejudice of its admittance. Justice Binnie cautions that there is no inverse relationship between the probative value of the evidence which goes to the proof on an issue and the prejudicial effect of the evidence which goes to trial fairness (Handy, supra, at paras. 148 and 149). Accordingly, when the probative value increases, it does not necessarily mean that the prejudicial value decreases. Justice Binnie concludes the judgment by stating at para. ... Justice is achieved when relevant evidence whose prejudice outweighs any probative value is excluded (R v. Marquard, 1993 CanLII 37 (SCC), [1993] S.C.R. 223, at p. 246) and where evidence whose probative value exceeds its prejudice (albeit in exceptional circumstance) is admitted. Justice includes society’s interest in getting to the truth of the charges as well as the interest of both society and the accused in fair process. criminal justice system that has suffered some serious wrongful convictions in part because of misconceived notions of character and propensity should not (and does not) take lightly the dangers of misapplied propensity evidence. [17] The Crown seeks to admit the two previous incidents of choking as similar fact evidence to prove issues of motive and intent and modus operandi. conviction for second degree murder pursuant to s. 235 of the Criminal Code requires proof beyond reasonable doubt that the accused committed the actus reus and had the requisite mens rea. The mens rea for murder is the subjective intention to kill or the closely related state of mind that combines elements of the intention to cause bodily harm, knowledge that bodily harm is likely to cause death and recklessness as to whether or not death ensues. [18] The similar fact evidence could be used to show hostile behaviour by the accused which would lead to motive to kill. It could also be used to show that the accused intentionally inflicted the fatal choking injury on Michelle Lenius, just as he had intentionally choked Michelle Lenius on the two previous occasions. The Crown’s argument is that Kevin Lenius has situational specific hostility and intention to harm Michelle Lenius by choking, and this propensity gives rise to the further inference that he had proceeded in that way, with the motive and intent to harm Michelle Lenius on November 4, 2003. [19] In the case of Sweitzer v. R., 1982 CanLII 23 (SCC), [1982] S.C.R. 949, the Supreme Court of Canada has held there must, at least, be some evidence capable of reasonably supporting finding that the appellant was implicated in the other similar acts. In this case, there is hearsay evidence from Michelle Lenius’ police report and statements that she made to others regarding the alleged choking incidents. There are also medical records which would attest to Michelle Lenius’ injuries on October 17, 2003. However, the strength of the evidence is substantially negated by the fact that there has been no admission of these facts by the accused and Michelle Lenius is not available for cross-examination. [20] There are number of factors which must be assessed when examining the nexus between similar fact evidence and the charged conduct. The second degree murder charge arose out of an incident that took place on November 4, 2003. The two prior incidents of domestic violence arose in August 2003 and October 2003 which are close in proximity. In this case, the similar fact evidence is quite situation specific. All of the incidents occurred between Kevin and Michelle Lenius after Michelle Lenius had described the marriage as being effectively over and after she had started to see Kelly Bruce. All three incidents occurred in private, within the confines of their residence, and involved heated exchange of words, followed by strangulation. In the October incident, Michelle Lenius had stated in her police report that she had scratched Kevin Lenius’ left arm and when she was found murdered, she also had skin under her finger nails. All three events occurred during time when Kevin Lenius was angry toward Michelle Lenius for dating Kelly Bruce and not being forthcoming as to the new relationship. Also, the Crown suggests that these incidents occurred when Michelle Lenius least expected. [21] In addition, there are important dissimilarities between the incidents. First, the other acts did not result in death, while the charged conduct did. Also, the October incident is distinguished by the fact that Kevin Lenius sexually assaulted Michelle Lenius after brutally attacking her. There were no signs of sexual assault in the August incident or when Michelle Lenius was found murdered. And, in August, Kevin Lenius and Michelle Lenius were living together while they had been separated in October. The October incident was far more serious and planned than the August incident. The three events are all similar, but these similarities are not highly distinctive. However, it was stated by David Paciocco and Lee Stuesser in The Law of Evidence, 3rd ed. (Toronto: Irwin Law, 2002) at p. 56 that: Occasionally, prior discreditable conduct by an accused person will have significant probative value in demonstrating the mental state of the accused, be it knowledge or intent. In such cases, the evidence can be sufficiently connected to the issue in question as matter of common sense, even in the absence of real similarity between the events in question.... The cogency of this evidence comes from the fact that it is unlikely that Kevin Lenius did not intend to harm Michelle Lenius after he intentionally choked her on two previous occasions. [22] When examining the prejudice involved in admitting the similar fact evidence, it is clear that the two previous incidents are extremely prejudicial in nature. There is a serious potential for moral prejudice. As noted in Handy, supra, at para. 140, spousal abuse is an aggravating factor for the purposes of sentencing under s. 718.2 of the Criminal Code and this illustrates the extent of society’s denunciation of this type of abuse. The reprehensible nature of the brutal assaults, even in the absence of the sexual assault, could lead the jury to rely on the prohibited inference that the accused is the type of person who could have committed the crime. There is also a great risk of reasoning prejudice by admitting the similar fact evidence as it may distract members of the jury from their proper focus which is the second degree murder charge. There is the possibility that the jury will equate the intention to harm with the mens rea required to be convicted of murder. Even though the similar fact evidence supports the inference that the accused intentionally inflicted the injury, just as he had intentionally choked his wife in the past, this does not satisfy the additional element that the accused knew the harm was likely to cause death, or was reckless whether death ensued or not. [23] Similar fact evidence is presumptively inadmissible and this creates very heavy onus. The prejudicial nature of the similar fact evidence has not been overcome by its probative value and it should not be admitted in order to ensure the possibility of a fair trial. 3. Are the hearsay statements made by Michelle Lenius to her friends, family and co-workers admissible under the principled approach? (a) The Principled Approach [24] Are the hearsay statements made by Michelle Lenius to her friends, family and co-workers admissible under the principled approach? The evidentiary rule against hearsay has been stated in the following manner by John Sopinka, Sidney N. Lederman and Alan W. Bryant, in The Law of Evidence in Canada, 2nd ed. (Toronto: Butterworths, 1999), at p. 173: Written or oral statements, or communicative conduct made by persons otherwise than in testimony at the proceeding in which it is offered, are inadmissible, if such statements or conduct are tendered either as proof of their truth or as proof of assertions implicit therein. The central motivation behind this rule is the inability to test the reliability of the declarant’s out of court assertion through cross-examination and an examination of demeanor. Historically, the Canadian courts have followed categorical approach in which the admissibility of hearsay depended on whether it could fit into one of the pre‑existing hearsay exceptions. This rigid application resulted in the loss of highly probative evidence which could not be included within any previously recognized hearsay exception. [25] The Supreme Court of Canada has now adopted flexible approach to the admissibility of hearsay evidence which is referred to as the “principled approach.” This doctrine, which governs the admissibility of hearsay evidence, has been established and refined in trilogy of Supreme Court of Canada cases which include v. Khan, 1990 CanLII 77 (SCC), [1990] S.C.R. 531, R. v. Smith, 1992 CanLII 79 (SCC), [1992] S.C.R. 915, and R. v. Starr, 2000 SCC 40 (CanLII), [2000] S.C.R. 144. [26] R. v. Khan, supra, was sexual assault case in which three-year-old child complained of the incident to her mother shortly after she was assaulted by her family doctor. The child was held to be incompetent to testify and so the issue became whether to admit the mother’s out of court statement for the truth of its contents. In order to admit the mother’s statement, Madam Justice McLachlin, as she then was, writing for the court, held that it was open to the court to create new exceptions to the hearsay rule. The principles turned to were necessity and reliability. According to this new exception, the child’s statements to her mother should have been received. [27] Nearly two years later, in v. Smith, supra, the Supreme Court of Canada clearly stated that the principles identified in Khan, supra, were not to be confined to children’s evidence in sexual assault cases. Chief Justice Lamer wrote at p. 933: This Court’s decision in Khan, therefore, signalled an end to the old categorical approach to the admission of hearsay evidence. Hearsay evidence is now admissible on principled basis, the governing principles being the reliability of the evidence, and its necessity.... [28] In R. v. Starr, supra, the Supreme Court of Canada clarified the extent of the application of the principled approach and held that all existing traditional hearsay exceptions can be challenged under the twin requirements of necessity and reliability. Iacobucci J. outlined the approach to be taken in future cases for the admission of hearsay which preserves the traditional hearsay exceptions while avoiding any unnecessary arbitrariness of the exceptions that may apply in particular situation. The steps for the determination of hearsay issues have be summarized in the following manner (Sidney N. Lederman and Alan W. Bryant, The Law of Evidence in Canada, 2nd ed. Supplement (Markham: LexisNexis Canada Inc., 2004) at 30 and 31): (1) Hearsay evidence is presumptively admissible, without the need for voir dire, if it falls under an established exception to the hearsay rule because the exceptions all have certain inherent reliability. (2) hearing may be held to determine whether the hearsay exception complies with the requirement of the principled approach. The principled approach prevails. If the hearsay exception conflicts with the principled approach, it should be modified or interpreted in manner consistent with the requirements of the principled approach.... (3) In some rare and unusual cases, it may be possible under the particular circumstances of case for evidence clearly falling within an otherwise valid exception, nonetheless, not to meet the principled approach requirements of necessity and reliability. In such case, the evidence would have to be excluded. The burden lies on the party challenging the admissibility of evidence falling within traditional exception of showing that the evidence should nevertheless be excluded. It will be up to the trial judge to determine the procedure, whether by voir dire or otherwise, for the determination of admissibility. (4) If evidence does not fall within the hearsay exception then it still may be admitted if, on voir dire, the court is satisfied that it meets the requirements of necessity and reliability. (b) Necessity and Reliability [29] The purpose of voir dire is to determine whether the evidence is necessary to prove fact in issue and whether it is reliable. The first determination that must be made by trial judge is whether the evidence is necessary to prove the fact in issue. On the criterion of necessity, Chief Justice Lamer in v. Smith, supra, stated at pp. 933 and 934: ... [T]he criterion of necessity, must be given flexible definition, capable of encompassing diverse situations. What these situations will have in common is that the relevant direct evidence is not, for variety of reasons available …Wigmore [John Henry Wigmore, Treatise on the Anglo-American System of Evidence in Trials at Common Law, vol. III, 2nd ed. (Boston: Little, Brown Co., 1923], while not attempting an exhaustive enumeration, suggested at §1421 the following categories: (1) The person whose assertion is offered may now be dead, or out of the jurisdiction, or insane, or otherwise unavailable for the purpose of testing [by cross-examination].... (2) The assertion may be such that we cannot expect, again or at this time, to get evidence of the same value from the same or other sources…. The necessity is not so great; perhaps hardly necessity, only an expediency or convenience, can be predicated. But the principle is the same. Clearly the categories of necessity are not closed. In Khan, for instance, this Court recognized the necessity of receiving hearsay evidence of child’s statements when the child was not herself competent witness. We also suggested that such hearsay might become necessary when emotional trauma that would result to the child if forced to give viva voce testimony would be great. Whether necessity of this kind arises, however, is question of law for determination by the trial judge. [30] Smith, supra, has affirmed that the death of the declarant may be sufficient to establish the criterion of necessity as the declarant is permanently unavailable for cross-examination. However, if other hearsay from the same witness with the same content has already been admitted, then the hearsay may not be necessary. See v. G.N.D. (1993), 1993 CanLII 14712 (ON CA), 81 C.C.C. (3d) 65 (Ont. C.A.) leave to appeal to the S.C.C. refused (1993), 82 C.C.C. (3d) vi. [31] The condition of reliability requires that any hearsay statement which is offered for the truth of its contents must be made in circumstances which substantially negate the possibility of the declarant being untruthful or mistaken. The Court is only concerned with threshold reliability when determining the admissibility of hearsay statement. In Starr, supra, Iacobucci J. provided the following guidance on threshold reliability at pp. 254 and 255: ... Threshold reliability is concerned not with whether the statement is true or not; that is question of ultimate reliability. Instead, it is concerned with whether or not the circumstances surrounding the statement itself provide circumstantial guarantees of trustworthiness. This could be because the declarant had no motive to lie (see Khan, supra Smith, supra), or because there were safeguards in place such that lie could be discovered (see Hawkins, supra; U.(F.J.), supra, B.(K.G.), supra). ... At the stage of hearsay admissibility the trial judge should not consider the delcarant’s general reputation for truthfulness, nor any prior or subsequent statements, consistent or not. These factors do not concern the circumstances of the statement itself. Similarly, would not consider the presence of corroborating or conflicting evidence…. In summary, under the principled approach court must not invade the province of trier of fact and condition admissibility of hearsay on whether the evidence is ultimately reliable. However, it will need to examine whether the circumstances in which the statement was made lend sufficient credibility to allow finding of threshold reliability. [Underlining in original] [32] The Alberta Court of Appeal in R. v. Nguyen, 2001 ABCA 98 (CanLII); (2001), 153 C.C.C. (3d) 495 (Alta. C.A.) further expanded on the notion of threshold reliability and set out number of important factors to consider within this inquiry. These factors include: the declarant’s motive; the spontaneity of the statements, contemporaneity with the events set out; the demeanor of the declarant; and the declarant’s conduct at the time the statement was made. [33] In v. Czibulka, (2004) 2004 CanLII 22985 (ON CA), 189 C.C.C. (3d) 199; (2004) 24 C.R. (6th) 152 (Ont. C.A.) at para. 22, the court explored further branch of reliability which is concerned with reliability that is achieved by the substitution of procedural safeguards that the court has traditionally relied upon, such as the ability to cross-examine, the presence of an oath and the ability to observe the declarant’s demeanor. An example of this reliability would occur where declarant has made prior inconsistent statement but had the requisite procedural safeguards to ensure threshold reliability. (c) Residual Discretion to Exclude Hearsay Evidence [34] At the conclusion of the principled approach, the trial judge continues to have an overriding discretion to exclude the evidence if its prejudicial effect outweighs its probative value, even if the evidence has been found to meet the criteria of necessity and reliability. The basis for this discretion is in s.11(d) of the Canadian Charter of Rights and Freedoms which grants the right to fair trial (see v. Hawkins, 1996 CanLII 154 (SCC), [1996] S.C.R. 1043; (1996), 111 C.C.C. (3d) 129 at 161 (S.C.C.). [35] The Crown has argued that the hearsay statements are relevant circumstantial evidence which is material to the issues of intent, motive and modus operandi. According to the Crown, the previous assaults and accompanying threats give Kevin Lenius motive to murder and thereby assists in establishing his intention. They also prove that Kevin Lenius’ state of mind was jealous, suicidal and that he was afraid to go to jail. If the jury was satisfied that the threats and physical assaults were made, they could infer motive and intent. [36] The defence has argued, as per Handy, supra, that the hearsay statements are inadmissible as they are being sought to prove issues which are no longer in dispute. The basis for this submission is that the defence has stated within the voir dire that Kevin Lenius will testify that he killed Michelle Lenius. Currently, there have been no admissions of fact made by the defence to the Crown pursuant to s. 655 of the Criminal Code which would dispense with the requirements of proof that are incumbent upon the Crown. In addition, the Crown is attempting to admit the hearsay to prove the mens rea of the crime, which would still be contested, even if there was formal admission of the actus reus. [37] Initially, it should be noted that any of the statements that were made by the deceased to several Crown witnesses concerning threats made by Kevin Lenius to Michelle Lenius are forms of double hearsay. In Starr, supra, Iaccobucci J., for the majority, made the following statements explaining the protocol to be used in the admission of double hearsay at para. ... [T]here are very good reasons behind the rule against allowing statements of present intention to be used to prove the state of mind of someone other than the declarant. As noted above, the central concern with hearsay is the inability of the trier of fact to test the reliability of the declarant’s assertion. When the statement is tendered to prove the intentions of third party, this danger is multiplied. If declarant makes statement about the intentions of third party, there are three possible bases for this statement: first, it could be based on prior conversation with the accused…. Under the first scenario, the statement is double hearsay. Since each level of hearsay must fall within an exception, or be admissible under principled approach, the mere fact that the declarant is making statement of present intention is insufficient to render it admissible, The second level of hearsay must also be admissible. [Underlining in original] Counsel for the defendant has suggested that both levels of hearsay require circumstantial guarantees of trustworthiness. However, this is an incorrect statement of the law. The threats made by Kevin Lenius to Michelle Lenius would have been admissible as admissions which are not subject to the twin requirements of necessity and reliability. [38] Admissions are any statements made by the litigant and tendered at trial by the opposing party. Sopinka J. expands on this in v. Evans, 1993 CanLII 86 (SCC), [1993] S.C.R. 653 at 664: The rational for admitting admissions has different basis than other exceptions to the hearsay rule. Indeed, it is open to dispute as to whether the evidence is hearsay at all. The practical effect of this doctrinal distinction is that in lieu of seeking independent circumstantial guarantees of trustworthiness, it is sufficient that the evidence is tendered against party. Its admissibility rests on the theory of the adversary system that what party has previously stated can be admitted against the party in whose mouth it does not lie to complain of the unreliability of his or her own statements.... Had Michelle Lenius been alive to testify, or if third party heard the threat, the evidence would have been admissible as an admission. As result, only the communications between Michelle Lenius and the Crown witnesses are subject to the requirements of necessity and reliability: see v. Foreman (2002), 2002 CanLII 6305 (ON CA), 169 C.C.C. (3d) 489 (Ont. C.A.) leave to appeal to the Supreme Court of Canada dismissed. [39] For the purpose of this analysis, the requirement of necessity is clearly established as Michelle Lenius is dead and there is no other way to derive the hearsay statements. The remainder of the analysis will focus on the reliability of the statements. Michelle Lenius’ Statement to Police [40] The contents of the police statement include Michelle Lenius’ account of the assault, sexual assault and threats which occurred on October 17, 2003 and reference to the previous assault in August 2003. The first part of this statement was written by Michelle Lenius and then the following questions were taken and recorded by Constable Dureau. Constable Dureau could not remember if the statement was written in his presence, at his desk, or at another desk. These events were recorded the same day that the incident occurred and would have been fresh in Michelle Lenius’ memory. She had no motive to fabricate the contents of the statement. This statement was documented by the police and Michelle Lenius could suffer legal consequences for making false allegations to the authorities if the contents of the statement were not true. Michelle Lenius would have had an appreciation that Kevin Lenius would be charged on the basis of the information being offered and that there would be the possibility that she could be cross-examined on the given facts. The fact that the statement was taken at the police station and made to person in authority is also indicative of reliability. See R. v. Fleet, 2001 NSCA 158 (CanLII); (2001) 163 C.C.C. (3d) 177 (N.S.C.A.), v. Nicholas (2004), 2004 CanLII 13008 (ON CA), 182 C.C.C. (3d) 393; (2004), 70 O.R. (3d) (Ont. C.A.). However, here statement was not taken under oath nor was it videotaped. Anne Tourigny [41] Anne Tourigny is the mother of the deceased, Michelle Lenius. Anne Tourigny’s evidence consists of statements by Michelle Lenius regarding two separate incidents. In conversation in August 2003, Michelle Lenius complained to Anne Tourigny about sore throat because Kevin Lenius had “choked information out of her.” She showed Anne Tourigny her neck and did not know if she should go to the doctor because it hurt to swallow. Anne Tourigny did not know what that information was regarding. The second conversation occurred at 2:00 a.m., on October 17, 2003, when Michelle Lenius telephoned Anne Tourigny from her house, after Kevin Lenius had left, and stated to the effect that Kevin Lenius had been waiting in the dark for her and he beat, raped and choked her until she blacked out. Michelle Lenius stated to Anne Tourigny that she thought she was going to die. She said that Kevin Lenius then proceeded to threaten her and said if she told anyone there would be consequences and he would kill her and her mother and father. Michelle Lenius was crying during this conversation. The urgency and spontaneity of the phone call on October 17, 2003, combined with the contemporaneity of the events set out in the statement, may suggest reliability. Constable Ryan Dureau [42] Constable Ryan Dureau is police officer with the Regina City Police. He was on duty on October 17, 2003 when Michelle Lenius came to the police station to give report. She told Constable Dureau that she had been assaulted by Kevin Lenius with whom she had been separated from for one month. He stated that Michelle Lenius described an assault in the early morning hours of October 17, stating that she came home to her residence where the doors where locked and the lights were out. She entered inside, turned on the lights and she advised that Kevin Lenius came out of the kitchen. He was upset and asked her where she had been. Michelle Lenius said Kevin Lenius had access to her residence with her keys but she was surprised he was there. Kevin Lenius was angry and hit Michelle Lenius in the face, pushed her into the cupboards, and choked her. She said she was afraid for her life and could not breathe. Kevin Lenius then let Michelle Lenius up and advised that he wanted to have sex with her. She did not want to have sex with Kevin Lenius and did not resist although Kevin Lenius took Michelle Lenius to the room and had sex with her. After that was finished, Kevin Lenius advised Michelle Lenius that he was going to kill himself in the garage. Michelle Lenius asked him to leave and he did. She gave the Constable written statement to that effect. [43] Constable Dureau reported that Michelle Lenius was timid, sober and unsure of how to proceed and what would happen to Kevin Lenius. Denise Batters [44] Denise Batters is lawyer at Michelle Lenius’ place of employment. She and Michelle Lenius had professional relationship and occasionally talked about personal matters. The hearsay in question concerns statement made by Michelle Lenius to Denise Batters, on October 20, 2003, at 9:00 a.m., in which she indicated that on October 17, 2003, Kevin Lenius was waiting in her dark house, and had beat her and raped her. Michelle Lenius told Denise Batters that on the following Friday she went to get rape kit at the hospital and then to the police station but, the police said they could not arrest Kevin Lenius until Monday. Michelle Lenius stated that Kevin Lenius had threatened her and stated to the effect that she should not go to the police as they could not protect her twenty-four hours day. Denise Batters stated that Michelle Lenius was scared for her safety, calm, yet anxious when she described the October 17 incident. Kelly Bruce [45] Kelly Bruce had been seeing Michelle Lenius since June of 2003 and he knew that her marriage to Kevin Lenius was over. He was able to provide greater detail into the two incidents. Michelle Lenius told Kelly Bruce that in August 2003, Kevin Lenius had pinned Michelle Lenius against the wall by the neck and ordered her to tell him where she was and who she was with. She said she was scared and he was hurting her. Michelle Lenius told Kevin Lenius that she was seeing someone else and Kevin Lenius told her to stop because it was making him look bad. [46] The second hearsay statement occurred three-quarters of an hour after the October 17 incident. Michelle Lenius told Kelly Bruce that she had been beaten up. He said her clothes were ripped and she had bruises on her face, arms and legs. She said that Kevin Lenius was waiting for her to get home. After an argument ensued, Michelle Lenius said she wanted to leave. Kevin Lenius hit her across the face and pushed her up against the cupboards and had his hands around her neck. After leaving Michelle Lenius’ house, she told Kelly Bruce she had been raped. Kelly Bruce characterized Michelle Lenius’ state of mind as being horrible. [47] Also, on November 2, 2003, Michelle Lenius told Kelly Bruce that Kevin Lenius had ordered her to drop the charges from October 17, 2003 or she would have to live with the consequences. These statements were made in temporal proximity with the relevant events. Kelly Bruce stated that Michelle Lenius was sober on the night of October 17 and appeared to be defeated and depressed. Denise Grant [48] Denise Grant was friend of Michelle Lenius and they worked as secretaries at the same law firm. The statements sought to be admitted by the Crown are an account of both the August and October incidents. Denise Grant was told by Michelle Lenius in telephone conversation in August 2003, that Kevin Lenius pushed her and shoved her against the wall by the throat because she was seeing someone else. Michelle Lenius said she had bruises. On October 19, 2003, Michelle Lenius stated to Denise Grant in telephone conversation that on October 17, after she and Kelly Bruce had returned from movie, Kevin Lenius was waiting for her in her dark kitchen. She said that she had tried to reason with him. He pushed and choked her and she thought it would be the last time she would see her children. He then raped her. She also stated that there was knife on the counter that was not there previously. Michelle Lenius said she pressed charges and told her about the hospital visit. Denise Grant said that after this incident, Michelle Lenius was scared and always looking over her shoulder. She promised Denise Grant that she would not be alone again with Kevin Lenius. Mark Mulatz [49] Mark Mulatz was lawyer that Michelle Lenius worked for and he knew her well. The statements sought to be admitted involve telephone conversation on the morning of October 17, 2003, at 8:00 a.m., in which Michelle Lenius told Mark Mulatz that she would not be at work because she had been beaten by Kevin. Mark Mulatz said she sounded quiet on the phone and did not sound normal. She then spoke to Mark Mulatz on the following Friday, accompanied by her parents. She told Mr. Mulatz that she was assaulted by Kevin the night before and that he grabbed her by the throat. Mark Mulatz said she was frightened and inquired if she should go to the police. She was embarrassed and Mark Mulatz felt it was difficult for her to confide in him. He said she was frightened, distraught and appeared to have been crying. Finally, Michelle Lenius told Mr. Mulatz about telephone conversation in which Kevin Lenius tried to convince Michelle Lenius to drop the charges and stated that court order did not mean anything and that Michelle Lenius would not know what hit her. Michelle Lenius was crying when she relayed this conversation to Mark Mulatz. Yvonne Bachelu [50] Yvonne Bachelu and Michelle Lenius were friends and they worked at the same law office. Again, the hearsay statements surround the same two incidents. In August 2003, Michelle Lenius told Yvonne Bachelu that Kevin Lenius had choked Michelle Lenius and only stopped when their son interceded. Then, in October 2003, Michelle Lenius told Yvonne Bachelu that Kevin was in her house and frightened her when she returned home. She was unable to leave as she was pinned in the kitchen and there was knife in the kitchen that was not previously there. Michelle Lenius also told Yvonne Bachelu that Kevin Lenius told her that if she told anyone about the assault or sexual assault he would kill her. [51] Counsel for the defence has cited v. Ghosn, [1996] O.J. No. 4056 (QL) (Ont. Court (Gen. Div.)) as being blueprint for the type of analysis that should be engaged. In Ghosn, supra, voir dire was held to determine the admissibility of hearsay evidence which included statements regarding threats, assaults and abusive behaviour directed toward the deceased. The accused was charged with first degree murder in the death of his common law spouse, with whom he had been in tumultuous relationship for three years. The Crown sought to introduce hearsay evidence of specific acts of violence by the accused against the deceased. Some of these acts included punching the deceased, hanging her over the balcony, kicking her in the stomach while she was pregnant and threatening to kill her. Many of these incidents occurred months before the murder by the accused. The trial judge held that the probative value of the evidence was outweighed by its prejudice and, in para. 128, it was stated that “evidence of the disgraceful conduct of the accused over the term of the relationship could, in my view, very well distract the jurors from their duties, which again, are to determine whether at the very moment of the unfortunate death of Miss Guy on the evening of April 28th, 1995 the accused meant to kill her and had planned and deliberated to that end.” CONCLUSION [52] I am cognizant of the fact that the general exclusionary rule that similar fact evidence is presumptively inadmissible has been affirmed repeatedly and recognizes that the potential for prejudice distraction and time consumption associated with the evidence generally outweighs its probative value. Issues may arise however for which its probative value outweigh the potential for abuse. [53] It is critical to underscore that learned counsel for the Crown has agreed in complete fairness that the hearsay statements made by the deceased to her friends, family and colleagues concerning the threats cannot be separated from the incidents of choking and sexual assault. In other words, it would not be feasible to edit these statements to exclude any reference to the assaults as the remaining statements (the sanitized version) would be misleading to the jury. Therefore, it is not necessary to decide the principled approach to the hearsay evidence. Although a convincing argument may be made with respect to the reliability of the statements, I do have some concerns about this issue in all of the circumstances. The concerns would include the statement given to the police. There is nothing which would convincingly serve as indicia of reliability adequate to offset the absence of an oath, warning or videotape. [54] In any event, it is significant that even where hearsay statement satisfies the criteria for necessity and reliability, the trial judge has residual discretion to exclude the statement from admission into evidence where, in his or her opinion, “its probative value is slight and undue prejudice might result to the accused.” R. v. Johnson (2004), 2004 NSCA 91 (CanLII), 188 C.C.C. (3d) 214 (N.S.C.A.). [55] In my view the prejudicial effect of the statements outweigh any probative value it may have. There is high risk that the jury might conclude that man who previously had choked and sexually assaulted his wife would be disposed to wilfully kill her. It is significant that it is not in dispute that Kevin Lenius killed the deceased and that the only issue is intent. Therefore, by introducing evidence of previous aggravated assaults and sexual assault would be so prejudicial as to deprive him of fair trial on the real issues that the jury must decide. Evidence of the previous bad conduct of Kevin Lenius may distract the jurors from their responsibilities which is to determine whether Kevin Lenius intended to kill the deceased. In other words, the previous incidents that occurred in August and October 2003, are so morally and socially repugnant that this testimony would detract from the central issue of the case, that is, what occurred on November 4, 2003 and in particular did Kevin Lenius intend to kill Michelle Lenius. [56] In the Ghosn decision, supra, Mr. Justice Morin states as follows at para. 128: ¶128 My concern on this voir dire has been, having regard to the fact that there is no issue that the accused killed the deceased and that the only issues are intent and premeditation, that the bringing out before the jury of litany of specific assaults over the term of the relationship would be so prejudicial to the accused as to deprive him of fair trial on the real issues that the jury must decide, and that is whether the accused intended, on April the 28th, 1995, to kill Sherri‑Lee Guy and was her death planned and deliberate. Evidence of the disgraceful conduct of the accused over the term of the relationship could, in my view, very well distract the jurors from their duties, which in this case, again, are to determine whether at the very moment of the unfortunate death of Miss Guy on the evening of April 28th, 1995 the accused meant to kill her and had planned and deliberated to that end. That statement, except for the reference to planned and deliberate, is analogous to the case at bar. [57] For all the above reasons, the statements made by the deceased to her friends, family and colleagues concerning threats and assaults will not be admitted. [58] Notwithstanding the above, the jury is entitled to consider the general nature of the relationship from its inception and that on occasion it was tumultuous and that the deceased left the accused and that the relationship appeared to be over. J. R. L. Barclay

Accused is charged with second degree murder in the death of his estranged wife. The Crown sought to admit into evidence a number of statements that were made by the deceased to several crown witnesses concerning two previous incidents she had with the accused in the weeks prior to her death. In the first incident, the accused is alleged to have choked the victim after he confronted her about where she had been. In the second incident the accused confronted the victim and beat and choked her and then sexually assaulted and threatened to kill her. The Crown seeks to admit this similar fact evidence and several hearsay statements to prove the issues of motive, intent and modus operandi. HELD: The statements by the deceased are not admissible. The prejudicial nature of the similar fact evidence has not been overcome by its probative value. It is well established law that similar acts and other discreditable conduct evidence is presumptively inadmissible and that similar fact evidence is the exception to this. To determine its admissibility, three things need examination, 1) the probative weight of the evidence, 2) the assessment of the prejudice and 3) the weighing of the probative value versus prejudicial value. In examining the probative weight of the evidence, factors to be considered include the issues in question, the presence or absence of collusion, similarities and dissimilarities between the facts charged and the similar fact evidence and the strength of the evidence that the events occurred. The two previous incidents are extremely prejudicial in nature leading to potential moral prejudice. That is, reprehensible nature of the assaults could lead the jury to rely on the prohibited inference that the accused is the type of person who could have committed the crime. There is also a great risk of reasoning prejudice. That is, admitting the similar fact evidence may distract the jury from their proper focus which is the second degree murder charge. There is a possibility that the jury will equate the intention to harm with the mens rea required for a murder conviction. With respect to the hearsay evidence, the Court held that statements made by the deceased to her friends, family and colleagues concerning the threats and assaults will not be admitted. The test of necessity is clearly met by the fact that the person making the statements in now deceased and not able to testify. However, the Court was concerned about the reliability of the statements since there is nothing that would serve as convincing indicia of reliability adequate to offset the absence of an oath.

e_2005skqb263.txt

J. Q.B.G. A.D. 1998 No. 1900 J.C. R. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF REGINA BETWEEN: SHIRLEY SCARLETT and REGINA METAL INDUSTRIES LTD. DEFENDANT Shelley L. Joyce for the plaintiff Daniel S. Tapp for the defendant JUDGMENT MacLEOD J. October 13, 1999 [1] The plaintiff’s action is for wrongful dismissal or, stating it more correctly, for damages for dismissal from her employment without adequate notice. The action was under the simplified procedure in Part Forty of The Queen’s Bench Rules. At trial, the affidavits-in-chief of the plaintiff’s witnesses were marked as plaintiff exhibits and the witnesses were then called for cross-examination by the defendant, followed by redirect questions from plaintiff’s counsel. At the conclusion of the plaintiff’s evidence the affidavits-in-chief of the defendant’s witnesses were marked as defence exhibits, whereupon the witnesses were called for cross-examination and redirect examination. [2] The allegations in an affidavit may be accepted by the Court unless contradicted by other affidavit evidence in which event it is difficult, if not impossible, for the Court to decide any fact solely on the basis of contradictory affidavits. The cross-examination is therefore critical to the assessment of credibility. The cross-examination of the plaintiff took nearly two hours, exceeding the time suggested in the Practice Directive, but such extensive cross-examination seemed necessary to deal with the many issues raised by the plaintiff. The Court took note of this and recognized that equal latitude may be required in the plaintiff’s cross-examination of the defendant’s witnesses. [3] The plaintiff had been employed by Saxby Welding and Machine Shop for some 23 years and had become the office manager, bookkeeper and, generally, the key office person. Her role included decision making, especially in matters relating to the accounts. [4] Leslie Crompton is president of the defendant company and his wife, Carroll Crompton, is director. They and the company are referred to interchangeably as “defendant”. Crompton operated business in the Saxby Welding premises for number of months before the defendant purchased the business. It was transferred to the defendant as of October 1, 1997. [5] Some, if not all, of the employees at that date continued as employees with the new owner. The plaintiff carried on her duties in much the same way as she had done previously. These ways were not fully known to the new owners. The Cromptons made inquiries of the plaintiff which may have been disconcerting to her. For time the defendant operated from the Saxby Welding books before the defendant’s own set of books were put into use. [6] In the Saxby Welding operation the plaintiff seems to have been permitted good deal of latitude. The Saxby practice allowed employees to charge personal expenses to the company and the amount thereof was deducted from the employee’s salary. These were to be reasonable amounts but the authorization responsibility fell mainly to the plaintiff, with occasional consultation with Gary Saxby. The Cromptons are now fully aware of this process and they object, especially, to an amount charged by Irene Kwiatkowsky for repairs which were originally authorized during the Saxby ownership but were completed and in end paid on October 15, 1997 which is, of course, after the date of the sale to the defendant. [7] The plaintiff appears to be clever person but not necessarily flexible in her acceptance of the new owners. She, having established secure and key pattern of work with the Saxby Welding operation, was, perhaps understandably, not fully receptive to the new owners and their methods. accept that the sale of business is likely to be, and was in this case, not wholly welcome to the employees such as the plaintiff who had established rewarding and satisfying niche in the former operation. By February, 1998, the plaintiff requested that she be relieved of her duties as office manager. In this, she was accommodated. Her termination of employment, therefore, relates to her reduced position as bookkeeper only. [8] I am satisfied that the plaintiff’s employment as bookkeeper by the defendant was for an indefinite period of time. [9] It is unnecessary to review the many details of discord that developed. It is sufficient to note that the plaintiff gave examples of what she refers to as the hostile atmosphere in which she worked. The plaintiff was crisp witness and precise, and appeared to be rather fixed in her ways. Generally accept her testimony. accept generally too, the evidence of the Cromptons. conclude that they could not be described as hard-nosed business people. They found themselves frustrated in dealing with the plaintiff. Near the end, the parties were mainly not speaking to each other. Each side had resorted to tape recorders for important matters. Such relationship is doomed to eventual, if not early, termination. The parties discussed her termination but nothing was settled. On March 24, 1998, the plaintiff was presented with memorandum which provided she work until April 30, 1998 and recover pay to May 19, 1998. She declined to sign the memorandum. [10] She was then presented with memorandum in which she was to work until April 9, 1998 and be paid to May 19, 1998. This too she did not sign. [11] She was then given note dated April 2, 1998 as follows: Re: Termination Notice Our File: 340.001 As you are aware, management has numerous concerns with your job performance which will be addressed by way of separate meeting and formal written warning. In the meantime, please take notice that your employment will be terminated effective March 31, 1999. If your job performance does not improve, your employment will be terminated much sooner that [sic] March 31, 1999. [12] On April 3, 1998, she was given written warning listing grievances of the employer. The memorandum concluded in these words: “We are prepared to give you reasonable opportunity to rectify these problems, failing which, your position will be terminated.” [13] The parties each had string of complaints against the other. It is not useful to examine them in detail. In all instances the complaints arose from relationship that was cool and doomed to termination: confident employee set in the ways of her previous employment and frustrated employer who had ample time before purchasing the business to assess the prospects of success of her continuing employment. [14] Following the written warning, the plaintiff took stress leave and produced note to that effect from her physician. She returned to work on May 15, 1998. new office manager, Susan Weinberger, had been engaged. Weinberger was obliged to learn the position. Computers had been introduced. The plaintiff and Leslie Crompton were not communicating. Weinberger was left with the main duty of presenting the plaintiff with “light duties” because the plaintiff had recently returned from stress leave. [15] The results were not very satisfactory to anyone, especially the plaintiff. She asked for an office chair, but none was provided. She asked for basic supplies, including calculator, but none were provided. Her listing of the work done and the time spent doing nothing, as taken from her affidavit, are as follows: 63. THAT Carroll Crompton instructed me to take an inventory of all office supplies, list them, wash off the shelves and reorganize the supplies in the cabinet.... This took me from approximately 8:15 a.m. to 9:30 a.m. From 9:30 a.m. to 2:50 p.m. on May 15, 1998, sat in chair and was given no tasks to do. No one spoke to me during that period of time. 64. THAT at 2:50 p.m. on May 15, 1998, Susan Weinberger took me up to the lunch room and told me to wash the dishes and wipe down the tables, and was instructed to take the garbage out of the can and someone else would carry it out to the dumpster. This work lasted until 3:10 p.m. From 3:10 p.m. to 4:30 p.m., the end of my work day, once again sat in chair receiving no instructions and with no one speaking to me. ... Monday, May 19, 1998 was Victoria Day .... On Tuesday, May 19, 1998, began work at 8:00 a.m. as usual. asked Ms. Weinberger what could do. She said that she would have to ask Gary Saxby. Gary Saxby in turn passed me on to an employee with the Business, George Radutu, who asked me to file IPSCO drawings in envelopes. That duty was completed by 9:10 a.m. 66. THAT at 9:10 a.m. asked Ms. Weinberger what else could do. She told me to take an inventory of our front counters. advised her that all there was in there was garbage. She instructed me to sort it out, and carry George Saxby’s items upstairs. She said what while was taking inventory might as well take the pail and wash down the shelves and counter.... This task took me until 10:00 a.m. 67. THAT from 10:00 a.m. to 12:00 p.m. sat in chair with no duties being given to me and with no one speaking to me. 68. THAT at 12:30 p.m. Ms. Weinberger told me to wash the cupboards, fridge and microwaves in the lunch room. This task took me until 1:30 p.m. From 1:30 p.m. to 4:30 p.m. sat in chair without receiving any tasks and no one speaking to me. 69. THAT on Wednesday, May 20, 1998, from 8:00 a.m. to 2:00 p.m. was instructed to document all time from work orders written from October 1, 1997 to April 22, 1998.... This task was not something that had been required to do on regular basis and was not part of my normal work duties. At 2:00 p.m. Irene Kwiatkowski, office assistant, gave me three invoices to write up, which took total of 15 minutes. From approximately 2:15 p.m. to 4:30 p.m. sat in chair with no one speaking to me and no one giving me any tasks to perform. 70. THAT on or about May 20, 1998, when asked Irene Kwiatkowski about what tasks could perform, she did ask me to price some work orders. However, said that did not know whether was still allowed to do that. She went and asked Leslie Crompton if was allowed to price out the orders. After she came back into the office area Mr. Crompton followed her in and said “what you asked me, Irene, don’t think so.” When Mr. Crompton left asked Irene what that was about, and she said that he was telling her that should not price out work orders. 71. THAT on Thursday, May 21, 1998, again specifically asked Susan Weinberger what jobs she had for me to do and she advised me she had nothing for me to do at the moment. She said as soon as she had something for me to do she would let me know. From 8:00 a.m. to 4:30 p.m. sat in my chair with no one speaking to me and without receiving any tasks to do. 72. THAT on Friday, May 22, 1998, again began work at 8:00 a.m. typed out one price quote for George Radutu which took 10 minutes. From 8:10 a.m. to 8:45 a.m. sat in my chair without anyone speaking to me and without receiving any tasks. From 8:45 a.m. to 8:50 a.m. wrote up three invoices. 73. THAT from 8:50 a.m. to 10:00 a.m. sat in my chair with no one speaking to me and with receiving no tasks to do. From 10:00 a.m. to 10:30 a.m. was asked to add year to date figures on payroll cards for gross wages, holiday pay and sick pay, as required by the accountant for computer update. also wrote six invoices. 74. THAT from 10:30 a.m. to 11:30 a.m. sat in my chair with no one speaking to me and receiving no tasks to do. From 11:30 a.m. to 11:45 a.m. detailed three petty cash vouchers. 75. THAT from 12:30 p.m. to 3:20 p.m. sat in my chair with no one speaking to me and receiving no tasks to do. At 3:20 p.m. was asked to stamp eleven letters and was also asked to walk to Car Tops and deliver an invoice. From 3:30 p.m. to 4:05 p.m. sat in my chair with nothing to do and no one speaking to me. 76. THAT at 4:05 p.m. expensed one petty cash voucher, and for the remainder of the day, until was off work at 4:30 p.m., sat in my chair with nothing to do and with no one speaking to me. [16] The conduct to which she refers may be viewed as constructive dismissal and was accepted as such by the plaintiff by letter on May 25, 1998. But her employment had already been terminated by notice of nearly a year. [17] The employer is entitled to the benefit of the services of its employee during the period of notice but acts of the employer which constitute constructive dismissal entitle the employee to withdraw her services without reduction of the period of notice. [18] The plaintiff therefore remains entitled to notice to March 31, 1999, at her salary at the time of termination including the medical expenses which would have been covered during that period under the medical plan of the defendant, but without including bonuses or extra payments for sick pay. [19] Although the defendant had numerous complaints about the plaintiff she was not dismissed for cause. The defendant has not established that the plaintiff ought to have done more to mitigate her loss. In my view, the relationship fell apart with the usual bad feelings all around but there is no basis for punitive damages against the defendants nor are there circumstances which justify an extension of the period of notice. [20] From the amount payable will be deducted the net mitigation of her loss. The plaintiff’s affidavit refers to payments made to her “to date”. am unable to guess at the amount earned during the period of notice. therefore direct that the net earnings from May 25, 1998 to March 31, 1999, after deducting the cost which is hereby fixed at $50.00 of qualifying for such employment, be deducted. If the parties do not agree on the amount thereof the matter may be referred to me. [21] The plaintiff will be entitled to interest in accordance with The Pre-Judgment Interest Act, S.S. 1984-85-86, c. P-22.2. [22] The theory of notice is that at the end of the period the employment insurance benefits will remain unimpaired. The defendant can therefore make no deduction for any such insurance payments made to the plaintiff. [23] There is to be deducted the amounts which are owing by the plaintiff to the defendant. This does not include the Saxby account which predated the transfer of the business to the defendant. accept that this is matter between the plaintiff and Saxby. [24] There will be judgment accordingly, with costs. Fees will be taxed on column 2. The plaintiff shall deliver copy of the calculation of the judgment. Either party may issue judgment with the consent as to form and content of the other. Failing consent, the matter may be referred to me, if necessary, by application for further directions. [25] The Court draws the attention of the parties to ss. 45 and 46 of the Employment Insurance Act, S.C. 1996, c. 23.

The plaintiff who had been employed by the defendant's predecessor for 23 years as office manager and bookkeeper until 1997, brought an action for damages against her new employers for dismissal without adequate notice. The plaintiff took stress leave and requested to be relieved of her duties as office manager in 1998. The action proceeded under the simplified procedure in Part Forty of the Queen's Bench Rules. HELD: 1)The conduct amounted to constructive dismissal entitling her to withdraw services without a reduction in the notice period. Although the defendant had numerous complaints the plaintiff was not dismissed for cause. Her termination of employment related only to her reduced position as bookkeeper which was for an indefinite period of time. Her employment had already been terminated by notice of nearly a year. She remained entitled to notice to March 31, 1999 at her salary at the time of termination and to medical expenses that would have been covered but without bonuses or extra payments for sick pay. 2)The defendant did not establish the plaintiff ought to have done more to mitigate her loss. There was no basis for punitive damages nor for an extension of the period of notice. 3)The net earnings between May 1998 and March 1999 were deducted after deducting $50 for the cost of qualifying for that employment. Amounts owing by the plaintiff to the defendant were to be deducted. 4)The plaintiff was entitled to interest in accordance with the Pre-judgment Interest Act. 5)The defendant could make no deduction for insurance benefit payments. Sections 45 and 46 of the Employment Insurance Act was drawn to their attention. 6)The plaintiff was awarded costs. Fees were to be taxed on column 2. 7)The plaintiff was to deliver a copy of the calculation of the judgment. Either could issue judgment with the other's consent as to form and content. An application for further directions could be made.

6_1999skqb124.txt

IN THE SUPREME COURT OF NOVA SCOTIA Citation: Galvizu v. Hernandez, 2004 NSSC 248 Date: 2004/10/18 Docket: 1201-53630 (153766) Registry: Halifax Between: Carlos Alberto Galvizu (Diaz) v. Marta Liliam Hernandez (Perez) Respondent Judge: The Honourable Justice A. David MacAdam Heard: October 14, 15, and 18, 2004, in Halifax, Nova Scotia Written Decision: November 25, 2004 Counsel: Carlos Alberto Galvizu Diaz, personally Marta Liliam Hernandez Perez, personally By the Court: (Orally) [1] The parties were married in Sweden on October 3rd, 1996 having previously been married in Cuba in 1991 and then divorced in Sweden in 1993. There are no children of their relationship and the only contested issue on this hearing is the Respondent’s claim for lump sum spousal support. [2] The parties agree that all property has been divided to their respective mutual satisfaction and an outstanding debt, in Sweden, of approximately 34,000 krona is their joint responsibility. [3] Following separation the parties, then each represented by counsel, consented to Family Court Order wherein the Petitioner was ordered to pay, as spousal support, the sum of $600.00 per month for twelve month period, commencing on January 1, 1999 and continuing on the 1st day of each month thereafter. The Order recited that he had made maintenance payments to the Respondent in the amount of $500.00 per month during the year 1998. In an Affidavit deposed to on July 22, 2004 he says that he has paid the sum of $16,160.00 to her since July 1997. [4] During their period of cohabitation, which apparently began in 1988 while they both were living in Cuba, and ended at least by September 1997, as testified to by the Respondent, or July 1997 as testified to by the Petitioner, they had what the petitioner described as “modern marriage”. Each kept their separate bank accounts and neither depended on the other financially during this period. Each completed their education, training and worked from time to time at various locations in different countries. The Respondent testified she always wanted to be “independent of him”. [5] The Divorce Act, R.S.C. 1985, c.3 (2nd Supp.), (herein referred to as “the Act”), was proclaimed in force December 12, 1988. It is reviewed in detail, both in respect to its relationship to its predecessor and in respect to the numerous decisions, at all levels of Courts, since its proclamation in the Divorce Act Manual by Terry W. Hainsworth (Canada Law Book Inc. 2004). In my reasons have adopted much from the law and case review by Mr. Hainsworth. [6] In Strickland v. Strickland, (1991), 1991 CanLII 2509 (NS CA), 107 N.S.R. (2d) 111, Justice Hallett, on behalf of the Nova Scotia Court of Appeal, in respect to an Application to vary maintenance granted by Family Court Order, held that pursuant to Section 15 of the Act the Court on the divorce hearing is to determine whether support order should be made, and in what amount, considering all relevant factors. It was not necessary for the Applicant to establish there had been change in circumstances. In addition, he referred to the Supreme Court of Canada decisions in Richardson v. Richardson, 1987 CanLII 58 (SCC), [1987] S.C.R. 857, and in Pelech v. Pelech 1987 CanLII 57 (SCC), [1987] S.C.R. 801, to the effect that they had no application, since in Strickland, supra, the distinguishing factor was that there was not an agreement settling all issues such as would be provided in separation agreement signed in contemplation of divorce. [7] would also note, to similar effect, the Ontario Divisional Court decision in Clayton v. Clayton (1989), 19 R.F.L. (3d) 430 and the B.C. Court of Appeal in Callison v. Callison (1989), 1989 CanLII 2815 (BC CA), 22 R.F.L. (3d) 123 where, in each case, it is stated the trial Court has jurisdiction to establish an appropriate support order pursuant to Section 15 of the Act, notwithstanding prior order pronounced under provincial legislation. [8] In Moge v. Moge, 1992 CanLII 25 (SCC), [1992] S.C.R. 813 at pp. 848-9, the Supreme Court of Canada clarified that the support provisions of the Act are intended to deal with the economic consequences for both parties of the marriage on its breakdown. The focus of the inquiry, in the determination of spousal support, is the effect of the marriage in either impairing or improving each party’s economic prospects. As the Court stated, the Act requires fair and equitable distribution of resources to alleviate the economic consequences of the marriage on the marriage’s breakdown for both spouses. Thus, the focus is shift away from the former means and needs test as the exclusive criteria for support, to more encompassing set of factors and objectives which require the Court to look to much wider spectrum of considerations. While the institution of marriage may provide number of social and emotional benefits to the parties, the purpose of spousal support is to relieve the economic hardship that results from marriage or its breakdown. There is, as noted in the Supreme Court decision in Bracklow v. Bracklow 1999 CanLII 715 (SCC), [1999] S.C.R. 420, balancing process that is not entirely compensatory. The adverse consequence of the marriage breakdown might stem from the marriage relationship itself. As such, the Court is also required to look to the factors of need, means, and the circumstances of the parties including the length of cohabitation, the functions each spouse performed and any other arrangements relating to support. [9] However, equitable distribution is not to be taken to mean an equalization of the spouses incomes. The task of the Court is to determine reasonable support within the framework of the statutory provisions. In each case, the Court is required to examine all the factors and objectives outlined in Section 15. In its analysis, the Court should take broad approach with view to recognizing the features of the marriage or its breakdown that adversely affect the economic prospects of the disadvantaged spouse. In Section 15.2(4), the Act defines series of mandatory factors the Court is required to take into consideration. All of the factors must be taken into account. In enumerating the factors, Parliament did not assign any greater weigh to any particular factor or create any higher order of importance. [10] The use of the word “including”, however, indicates the factors enumerated in Section 15.2(4) are not exhaustive as to means. Parliament directed the Court to consider means and not merely income. The words would include all of the persons pecuniary resources, capital assets, income from employment or earning capacity and any other source from which the person receives, gains or benefits, together with, in certain circumstances, monies which the person does not have in their possession, but which they have available to them. The means of the parties will be assessed at the time of the trial. The spouse’s ability to pay must be measured in accordance with his or her actual income at the trial, and not by some historical standard. Capacity to Provide Support [11] The Petitioner acknowledges an income of approximately $36,000.00. In addition, his present partner has salary of approximately $30,000.00 resulting in total income of some $66,000.00 per annum for the family of two adults and two children. These figures are reflected in their respective notices of assessment for the year 2003 and the Petitioner in evidence referred to their, (that is, he and his partner), now having an approximate combined annual income of $70,000.00 per year. He has, however, concerns about his company’s ability to continue to generate this level of income in view of the potential loss of major contract. The Respondent testified she is now working evenings. She said she works four and half hours day for five days at $6.75 per hour. Consequently her weekly income would be approximately $152.00 per week. Need as Factor [12] Need is flexible concept. It will vary according to the circumstances of the parties and the family unit as whole, and in particular, does not end once spouse has achieved subsistence level of income, or level, merely above subsistence. However, as pointed out in Moge, supra, the most significant change in the current statute, when compared to the previous statute, is the shift away from means and needs test as the exclusive criteria for support to more encompassing set of factors, and objectives requiring the Court to accommodate much wider spectrum of considerations. Nevertheless, need will continue to be an important factor in the determination of support eligibility, duration and quantum. As the Court later pointed out in Bracklow, supra, need may, however, be sufficient standing alone to ground support obligation. Casual Connection [13] Casual connection is not pre-requisite nor pre-condition for support eligibility under the Act. The source of Judge’s power to award support is found in Section 15. The factors Judge must strive to achieve are statutorily prescribed. Unlike Section 17.10, Section 15 does not require the Judge to embark on an inquiry as to whether the claimant’s needs are casually connected to the marriage. Although Section 15 does not require casual connection between the marriage and spousal need, as pre-condition for the payment of support, the Judge has the right and the obligation to take into account all of the circumstances of the parties, including any lack of casual connection between the marriage and the disability, and to give it appropriate weight in the result. Notwithstanding my comments that casual connection is not required, particularly with respect to the position of the Respondent in Nova Scotia, the breakup of the marriage has obviously impaired her financial position and impacted adversely on her ability to provide for herself. Need and Timing [14] Ordinarily, spousal need is to be measured at the time of trial. It is the financial position of the parties as it exists at trial that governs, not as it might exist at some undetermined time in the future. Accustomed Standard of Living [15] Formerly, the assessment of the amount and kind of support was based on what was required to give the dependent spouse standard of living reasonably equivalent to that which he or she enjoyed during the marriage, and which he or she might reasonably have expected would be the case had the marriage subsisted. substantial differential in the standard of living of the spouses following separation may, however, serve to highlight the disadvantages one of the spouses has suffered during the marriage or by reason of its breakdown. Maintenance of the accustomed style of living has, however, lost its currency as the proper measure of support. Relief against economic hardship resulting from the marriage or its breakdown are now more important considerations. The standard to be strived for is reasonable standard and will vary, depending on the circumstances, by these considerations. Capacity to Provide Self-Support [16] The Respondent’s capacity for self-support must also be taken into account. In this regard, the Respondent is now working, albeit part-time. Until arriving in Nova Scotia from Sweden, it appears each party maintained separate bank accounts. Each worked and continued their education and training. However the Petitioner was able, because of his education and background experience to improve his financial position on arriving in Nova Scotia, while the Respondent has effectively seen her position deteriorate. Although, even in Sweden, the Petitioner was able to earn and financially contribute greater amount to their common expenses, the disparity in their respective financial positions has greatly increased on the move to Nova Scotia. Clearly the Respondent’s economic prospects, particularly on the move to Nova Scotia, have been impaired by the marriage. This impairment must be considered in the light of the admitted desire of the Respondent to maintain her accounts separate from those of the Petitioner. [17] The task of the Court is to properly address the competing factors of compensation, need and self-sufficiency within the framework established by Section 15 of the Act. In this respect, Parliament did not attach any particular priority to the factors to be considered, and the objectives sought to be achieved in spousal support orders. This recognizes the great diversity of marriages and the need to deal with support entitlement and quantum on case-by-case basis. [18] Because, in particular case, the basis for entitlement is need, it does not follow that the quantum of support must always equal the amount of the need. Nothing in the Act foreclosures an order for support of only portion of the claimant’s need whether viewed in terms of amount or duration. Need is but one factor to be considered, at stated in Bracklow, supra. It would also appear that the concept of equal distribution does not call for equality of income in either the determination of eligibility or the assessment of quantum. [19] The Court has jurisdiction to grant support order as an incident to divorce. Periodic payments are the norm. Accordingly, the Court must first consider if periodic payments would provide adequate support. It is only when lump sum is the proper vehicle for providing support or when lump sum is necessary to put person in particular position that such an award of lump sum should be made. The award of lump sum under the Act must be in relation only to support and not means of effecting or altering any division of assets or debts. The Circumstances Justifying Lump Sum [20] Lump sums have been awarded as an alternative to periodic payment. This form of support may be awarded to bring matters to an end where there is history of acrimony and animosity between the parties. lump sum has the advantage of encouraging self-sufficiency, and enabling the parties to make final break so they can get on with their lives once divorced. lump sum has been ordered where the Court is doubtful that the Respondent may honour periodic support payment. [21] In this regard, would reference the evidence of the Respondent, in which she indicated three reasons why she seeks lump sum rather than periodic support payments. The first, she said was related to his failure to make some payments in 1999. She testified it was necessary for her to go to Maintenance Enforcement on two occasions in order to obtain payment of the support that was then ordered. Secondly, if she does finally achieve what she says is her goal, of returning to Sweden, she says, and to paraphrase her words, “she can forget about receiving any periodic payments from the Petitioner”. Thirdly, the Petitioner is now living in another Province and her understanding is that this would itself make it difficult to obtain payment. [22] further issue, with respect to lump sum, is that sometimes lump sums have been ordered to ease the transition to self-sufficiency. Obviously the Respondent seeks to achieve self-sufficiency, but in Sweden, and views the award of lump sum spousal support as means of achieving this goal. [23] In the present circumstances, having considered the circumstances and the nature of the marriage, including the fact each party pursued their own education and career choices with little apparent dependence other than as necessary, at least while living in Sweden, am nevertheless satisfied there was economic disadvantage or hardship brought about the separation of the parties. They apparently, while married, each pursued their own career and occupational choices. However, the opportunities available to the Respondent were clearly adversely impacted by the move to Nova Scotia, move, am satisfied, was instigated by the Petitioner to advance his own economic opportunities and career advancement. [24] Having regard to this impairment of her economic opportunities and prospects, am further satisfied that there is need. The Petitioner has the means to provide some level of spousal support. am therefore satisfied that despite the previous support provided, of approximately $16,000.00 over two years, there remains need for further support on the part of the Respondent, and capacity to pay some level of support on the part of the Petitioner. In summary, considering their present financial positions, there is need on the part of the Respondent, she is entitled to support, and there is capacity in the Petitioner to pay support. [25] The Respondent testified that sometime after the separation she agreed to settle spousal support for $5,000.00. She testified initially during this trial that she wanted approximately $20,000.00 to purchase an air ticket for her and her dog to travel to Sweden, and to finance her living expenses for eight months. In addition, she said there would be an expense to ship her books and other personal things to Sweden. In her final submission, she suggested she required $28,000.00 without specifying how this figure was calculated. [26] On the other hand the Petitioner now says that all he can afford is $5,000.00 by way of lump sum support. [27] recognize there are outstanding matrimonial debts, possibly to the Respondent’s mother, but certainly in respect to loans taken out in Sweden. The parties never provided for the resolution of the Swedish debts to be part of this proceeding, and it was only in his final submission that the Petitioner consented to the Court dealing with this debt. However, this having occurred after all the evidence and the principal submissions of the parties, declined to deal with this outstanding matter, although ideally, all matters should have been resolved. The consent to deal with this issue came too late in the proceedings to provide fair opportunity for both parties to present evidence and argument as to how responsibility for this debt, and any other debt should be allocated between them. [28] am not satisfied the Respondent, in addition to the two years of support she has already received, is entitled to have her and her dog flown to Sweden and maintained for some eight months. She estimated that air travel to Sweden for her and her dog would be in the range of $5,000.00 and the remainder of the $20,000.00 she was seeking was to cover her living expenses for eight months while she re-established herself in Sweden. Although she did not provide support for these amounts, she was not challenged by the Petitioner. [29] Certainly on her own evidence, upon her return to Sweden, she will be capable of obtaining some form of employment in order to assist in maintaining herself or enabling her to resume the educational or occupational training she deems necessary. On the other hand, the amount suggested by the Petitioner does not, even with the support already paid, meet the standard of fairness demanded by the breakdown of the marriage in Nova Scotia. Despite his anticipated financial deterioration, in the event his company is unable to replace the income lost by the termination of its present main contract, am satisfied he has the ability, having regard to the standard of living he and his present partner have established, to make greater contribution to enable the Respondent to achieve better, albeit modest, standard of living, whether it be in Canada or in Sweden. [30] In determining the amount of spousal support, have taken into account that the only claim is for lump sum spousal support, and the Petitioner’s position that he now has responsibility for partner and two children and the contract, on which his company relies for much of its income, has been terminated as of the end of October 2004. Nevertheless, as he says, he wishes to get on with his life, with his partner and two children. [31] As earlier noted, recognize periodic payments are the norm, but am further aware of the obvious acrimony that existed and continues to exist between the parties. Clearly, as was observed in the case of Currie v. Currie, (1986), 75 N.S.R. (2d) 439 (C.A.) there is here history of acrimony and animosity between them. At para. 32, Justice Macdonald on behalf of the Court observed: Maintenance settlements or awards should be as final as possible to reduce continuing conflict of the parties and to discourage multiplicity of proceedings, so long as this can be done without prejudice and to the primary principle that maintenance must be reasonably adequate. The ideal award is large lump sum, which settles matters once and for all per MacKeigan, C.J.N.S., in Rivera v. Rivera (1979), 30 N.S.R. (2d) 656; 49 A.P.R. 656; R.F.L. (2d) 41, at p. 46. [32] In respect to possible problems in enforcement of periodic support award, at para 33, Justice Macdonald, continued: Mr. Currie testified that he hated the respondent and her counsel advised this court that enforcement of an award of periodic maintenance might be quite difficult. [33] In this circumstance, as referred to in Leek v. Leek, (1994), R.F.L. (4th) 63 at p. 68 (B.C.S.C.), lump sum has the advantage of encouraging self-sufficiency and enabling the parties to make final break in order that they can get on with their lives, once divorced. [34] There is also the strong likelihood the Respondent will be moving to Sweden in the near future. On questioning by the Court, the Petitioner acknowledged if there as to be spousal support, he also preferred it be by way of lump sum award. In these circumstances, clearly lump sum spousal award is preferable and more likely to enable each party to “get on with the rest of the lives”. Having decided there is need and ability to pay, albeit diminishing in view of the evidence of the Petitioner that the major contract held by his company was not being renewed, lump sum payment is preferable to periodic payments in these circumstances. am satisfied having regard to his education and obvious skills in computer programming, that he will be able to obtain the funds necessary to make lump sum spousal support payment to the Respondent. [35] The evidence by the Respondent, supporting her lump sum claim, was far from satisfactory. am nevertheless satisfied, in view of her stated intention to return to Sweden and the very “rough” estimates of the costs both to return to Sweden and to re-establish herself, and the fact these costs were not challenged by the Petitioner, it is sufficient for me to fix an amount to be contributed by the Petitioner. [36] The Petitioner will therefore pay to the Respondent by way of lump sum spousal support, the sum of $10,000.00.

In a divorce proceeding, the wife claimed lump sum spousal support in the amount of $20,000 to allow her to return to her native country. She also claimed that periodic maintenance was not appropriate because of the difficulty of enforcement when she is living abroad and referenced two occasions when the husband was paying periodic support that she had to seek the assistance of Maintenance Enforcement. The husband opposed paying any more spousal support but expressed a preference for lump sum support if he was required to pay more, as it would allow him to move on with his life with his new family. Husband ordered to pay a lump sum award of $10,000 to wife; when the parties moved to Nova Scotia, the husband was able to improve his financial situation, while the wife's position deteriorated.

c_2004nssc248.txt

NOVA SCOTIA COURT OF APPEAL Citation: R. v. Durling, 2006 NSCA 124 Date: 20061117 Docket: CAC 263729 Registry: Halifax Between: Her Majesty The Queen v. Jennifer Cynthia Durling Respondent Judges: MacDonald, C.J.N.S.; Cromwell and Fichaud, JJ.A. Appeal Heard: October 5, 2006, in Halifax, Nova Scotia Held: The appeal is allowed and a new trial is ordered, as per reasons for judgment of MacDonald, C.J.N.S.; Cromwell and Fichaud, JJ.A. concurring. Counsel: Monica G. McQueen and David R. Greener, for the appellant Christopher Manning, for the respondent Reasons for judgment: [1] The RCMP received Crime Stoppers tip suggesting that the respondent, Ms. Jennifer Durling, was growing marijuana in home she rented in Coldbrook, Kings County. Acting on this tip, Constable Gary R. Huett applied to Justice of the Peace Elizabeth Mullaly ("the JP") and received warrant to search the home. In executing the warrant, the RCMP found evidence confirming the grow operation. Ms. Durling was charged with producing and possessing marijuana for the purpose of trafficking. [2] At trial before Provincial Court Judge Alan T. Tufts ("the judge"), Ms. Durling challenged the validity of the search warrant, alleging that it was issued without sufficient information. The judge agreed and quashed the warrant. This rendered the search unlawful and thereby presumptive breach of Ms. Durling's Charter rights. Consequently the judge excluded the evidence obtained in the search. This led to Ms. Durling's acquittal. [3] The Crown has appealed to this court. It submits that the JP had ample evidence to justify the warrant and that the judge misapplied established legal principles in ordering it quashed. Alternatively, the Crown maintains that even had the warrant been properly quashed, the police conduct did not justify excluding the evidence obtained in the search. [4] After carefully reviewing the record, believe, respectfully, that the judge misapplied the legal standard upon which he was to review the JP’s decision. Applying the proper standard of review of the decision to issue the warrant, conclude that the warrant was validly issued and that the judge erred in law by holding otherwise. Consequently, the evidence obtained as result of the search was wrongly excluded and had it been admitted, the result would not necessarily have been the same. Therefore, I would allow the appeal and order a new trial. [5] On April 7, 2005, Officer Huett applied for the search warrant by faxing the prescribed Information to Obtain to the JP. This was his second attempt that day to secure the warrant. The first application, an hour or so earlier, had been rejected by another justice of the peace, in part due to insufficient information. Officer Huett then made certain amendments and applied second time. The amended application went before different justice as result of shift change at the JP Centre and not because of any attempt by Officer Huett to "judge shop". [6] The amended application included details that summarize as follows: On March 17, 2005, Officer Huett received an anonymous Crime Stoppers tip reporting that one Jennifer Durling was growing marijuana in the basement of white house she was renting on Highway #1, Coldbrook. In the basement were "huge lights" plugged into outlets similar to those used for large appliances like stoves and dryers. The tipster also provided phone number for Ms. Durling and reported that she worked at Shirley's Travel Agency in the Cranbrooken Court complex, also in the Coldbrook area. On March 18, 2005, follow up investigation confirmed that this reported phone number was in fact subscribed to one Jennifer Durling at 6754 Highway #1, Coldbrook. On March 21, 2005, the investigators confirmed that the property was in fact rental property, as the tipster reported. On March 22, 2005, Officer Huett made patrol past this residence and noted it to be small white single storey bungalow with brick chimney. There was small wine coloured vehicle parked near the rear door. On March 23, 2005, investigators patrolled the parking lot of Cranbrooken Court and noted parked vehicle similar to the one earlier spotted at the suspect residence. They checked the license plate number and it turned out to be registered to one Jennifer Cynthia Durling, albeit at an address other than 6754 Highway #1. On this same date, the officers called the number for Shirley's Travel Agency and Jennifer Durling answered. In the ensuing week or so, the police drove past this residence on several occasions. Although lights were on and cars were in the driveway, nothing of any consequence was observed. Around this time there was second Crime Stoppers report from the same tipster re-confirming that the grow operation was ongoing and asserting that approximately 150 plants would soon be harvested. On April 6, 2005, in an effort to confirm these tips, the investigators utilized device designed to detect variances in heat as it is emitted from different structures. It is known as Forward Looking Infrared device or “FLIR”. The hand held device was aimed at the suspect residence. It detected an increased level of heat coming from the basement, as compared to the rest of the house. This would be consistent with marijuana grow operation where high powered lights emit significant heat. It is also consistent with the tipster’s report that the alleged operation was located in the basement. Furthermore, at this time, the investigators also noted that the basement windows were covered with material apparently designed to prevent light from being observed. On the same date, the FLIR was, as well, directed at several neighbouring residences. No similar elevated heat levels were detected. [7] On this information, the warrant was issued and the impugned search ensued. [8] At trial, the judge commenced voir dire to consider Ms. Durling's Charter challenge. By agreement, the investigators were cross-examined by Ms. Durling's counsel. This resulted in the information being supplemented in one aspect; namely, that the tipster reportedly had first hand information (as opposed to hearsay). The parties agreed that the judge could consider this additional information in his review. [9] The judge, troubled by what he felt was insufficient information to justify the warrant, declared it quashed. As noted, the evidence obtained in the search was then excluded resulting in Ms. Durling’s acquittal. [10] The Crown lists the following grounds of appeal: 1. That the trial judge erred in law in finding that there was violation of the Respondent’s rights under section of the Canadian Charter of Rights and Freedoms by the execution of search warrant upon the residence of the Respondent; 2. That the trial judge erred in law in failing to place appropriate weight upon the evidence gathered by the affiant Cst. Gary R. Huett, to corroborate the information provided by the confidential informant when evaluating the sufficiency of the grounds for obtaining the search warrant, as outlined in his information to obtain search warrant and amplified in his viva voce testimony at the trial; 3. That the trial judge erred in law in failing to place appropriate weight upon the evidence provided by the examination of the Respondent’s house by police with the Forward Looking Infrared (FLIR) imaging device, when evaluating the sufficiency of the grounds for obtaining the search warrant; 4. That the Learned Trial Judge erred in law in the application of the test enunciated in R. v. Garofoli for the review of an information to obtain search warrant, in determining that the evidence contained in the information to obtain search warrant was not sufficient to conclude that the issuing justice could have issued the warrant; 5. That the Learned Trial Judge erred in law in his application of the test for admitting or excluding the evidence seized by the police upon the execution of the said search warrant, pursuant to section 24(2) of the Canadian Charter of Rights and Freedoms. [11] As will become evident, to dispose of this appeal need only consider ground #4 dealing with the judge's role in reviewing the JP's decision to issue the warrant. It involves the so-called Garofoli test. [12] will begin my analysis by exploring the standard upon which we should review the judge's decision. will then analyze the judge's role when reviewing the JP's decision to issue the warrant. Finally will assess whether, in this case, the trial judge properly executed his role. Standard of Review [13] Under s. 676(1) of the Criminal Code, the Crown’s right to appeal is limited to questions of law. trial judge’s interpretation or application of legal standard involves question of law. See R. v. Araujo, [2000] S.C.R. 902. [14] In this case, the Crown suggests that the judge misapplied well established legal principles when reviewing the JP's decision to issue the warrant. Specifically they say that the trial judge applied an incorrect standard of review in that he failed to accord the JP’s decision sufficient deference. If so, this would involve an extricable legal issue which in this context we would review on correctness standard. As this court in R. v. Shiers, 2003 NSCA 138 (CanLII), [2003] N.S.J. No. 453 (C.A.) observed: The issue here is not whether the Court of Appeal believes that the Information was sufficient. The issue is whether the reviewing judge applied the appropriate standard of review to the issuing judge's determination that the Information was sufficient. 10 Whether the reviewing court applied the appropriate standard of review to the decision of the lower tribunal is an issue of law which is reviewable by this Court under the principles stated in Housen v. Nikolaisen, 2002 SCC 33 (CanLII), [2002] S.C.R. 235 at para and Dr. Q. v. College of Physicians and Surgeons of British Columbia, [2003] S.C.J. 18, 2003 SCC 19 (CanLII) at para 43 44. [Emphasis added.] The Reviewing Judge's Role [15] What then was the judge's role when reviewing the JP's decision to issue search warrant? Simply put, he was to consider not whether he would have issued the warrant but instead whether the warrant could have been issued based on the relevant information provided. [16] This test can be traced back to the Supreme Court of Canada decision in R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] S.C.R. 1421, where in the analogous context of wiretap authorization, Sopinka, concluded: 56 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. [17] In what circumstances could warrant be justified? The prescribed test is an objective one. The issuing JP would have to have reasonable and probable grounds that an offence had been committed and that the search would uncover material evidence. In other words, credibly-based probability must replace suspicion. Thus, in Hunter v. Southam Inc., 1984 CanLII 33 (SCC), [1984] S.C.R. 145 at pp. 167-168, the Supreme Court concluded: Anglo‑Canadian legal and political traditions point to higher standard. The common law required evidence on oath which gave "strong reason to believe" that stolen goods were concealed in the place to be searched before warrant would issue. Section 443 [now s. 487] of the Criminal Code authorizes warrant only where there has been information upon oath that there is "reasonable ground to believe" that there is evidence of an offence in the place to be searched. The American Bill of Rights provides that "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation ...." The phrasing is slightly different but the standard in each of these formulations is identical. The state's interest in detecting and preventing crime begins to prevail over the individual's interest in being left alone at the point where credibly‑based probability replaces suspicion. History has confirmed the appropriateness of this requirement as the threshold for subordinating the expectation of privacy to the needs of law enforcement. Where in the state's interest is not simply law enforcement as, for instance, where state security is involved, or where the individual's interest is not simply his expectation of privacy as, for instance, when the search threatens his bodily integrity, the relevant standard might well be different one. That is not the situation in the present case. In cases like the present, reasonable and probable grounds, established upon oath, to believe that an offence has been committed and that there is evidence to be found at the place of the search, constitutes the minimum standard, consistent with s. of the Charter, for authorizing search and seizure. In so far as subss. 10(1) and 10(3) of the Combines Investigation Act do not embody such requirement, would hold them to be further inconsistent with s. 8. [Emphasis added.] [18] These same principles would apply to this case where the search warrant was sought under s. 11 of the Controlled Drugs and Substances Act (1996, c. 19). [19] This reference to the issuing judge having “credibly-based probability” has been the subject of much judicial discussion over the years. In R. v. Morris, 1998 CanLII 1344 (NS CA), [1998] N.S.J. No. 492 (C.A.), Cromwell, J.A. of this court provided the following guidance: 30 Without attempting to be exhaustive, it might be helpful to summarize, briefly, the key elements of what must be shown to establish this "credibly based probability": (i) The Information to obtain the warrant must set out sworn evidence sufficient to establish reasonable grounds for believing that an offence has been committed, that the things to be searched for will afford evidence and that the things in question will be found at specified place: (R. v. Sanchez (1994), 1994 CanLII 5271 (ON SC), 93 C.C.C. (3d) 357 (Ont. Ct. Gen. Div.) at 365). (ii) The Information to obtain as whole must be considered and peace officers, who generally will prepare these documents without legal assistance, should not be held to the "specificity and legal precision expected of pleadings at the trial stage." (Sanchez, supra, at 364) (iii) The affiant's reasonable belief does not have to be based on personal knowledge, but the Information to obtain must, in the totality of circumstances, disclose substantial basis for the existence of the affiant's belief: R. v. Yorke (1992), 1992 CanLII 2521 (NS CA), 115 N.S.R. (2d) 426 (C.A.); aff'd 1993 CanLII 83 (SCC), [1993] S.C.R. 647. (iv) Where the affiant relies on information obtained from police informer, the reliability of the information must be apparent and is to be assessed in light of the totality of the circumstances. The relevant principles were stated by Sopinka, J. in R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] S.C.R. 1421 at pp. 1456‑1457: (i) Hearsay statements of an informant can provide reasonable and probable grounds to justify search. However, evidence of tip from an informer, by itself, is insufficient to establish reasonable and probable grounds. (ii) The reliability of the tip is to be assessed by recourse to "the totality of the circumstances". There is no formulaic test as to what this entails. Rather, the court must look to variety of factors including: (a) the degree of detail of the "tip"; (b) the informer's source of knowledge; (c) indicia of the informer's reliability such as past performance or confirmation from other investigative sources. (iii) The results of the search cannot, ex post facto, provide evidence of reliability of the information. 31 The fundamental point is that these specific propositions define the basic justification for the search: the existence of "credibly‑based" probability that an offence has been committed and that there is evidence of it to be found in the place of search. [20] Incorporating these principles, Fichaud, J.A. in R. v. Shiers, supra, succinctly summarized the test: 15 Based on these principles, the reviewing judge should have applied the following test. Could the issuing judge, on the material before her, have properly issued the warrant? Specifically, was there material in the Information from which the issuing judge, drawing reasonable inferences, could have concluded that there were reasonable grounds to believe that controlled substance, something in which it was contained or concealed, offence‑related property or any thing that would afford evidence of an offence under the CDSA was in Mr. Shiers' apartment? Did the Judge Apply the Proper Test? [21] In a thorough and careful analysis, the judge unquestionably articulated the appropriate legal principles. Quite properly, he acknowledged that his task was not to rehear the matter or to substitute his views for those of the issuing JP: It is not for this court to substitute its own opinion for that of the issuing Justice of the Peace: R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] S.C.R. 1421. It is not whether this court would have issued search warrant based on the Information to Obtain but whether Justice of the Peace could with the evidence now before me with the deletions made to protect the identity of the anonymous source, have properly reached that conclusion that reasonable and probable grounds existed. In short it is whether reasonable inferences can be drawn from the contents of the Information to Obtain which could establish reasonable and probable grounds to determine if evidence of crime could be found in the impugned place. As referred to above that requires consideration of whether there is present credibly based probability. The whole of the Information to Obtain needs to be considered. It does not, however, need to be based on personal knowledge: R. v. Morris (1998), 1998 CanLII 1344 (NS CA), 134 C.C.C. (3d) 539. The sufficiency of the grounds will depend on the circumstances and there is no fixed formula for what constitutes reasonable grounds. This concept involves the application of common sense as well as practical and non‑technical principles and is process not dealing with certainties but with probabilities: R. v. Gatfield [2002] O.J. No. 166. The task then is to determine if sufficient evidence is present, that is credible and probative to establish probability that evidence of crime will be found in the place named or more particularly whether Justice of the Peace could reach that conclusion. [22] However, despite this, remain concerned with how the trial judge applied the test that he so ably articulated. In reviewing his judgment as a whole, regrettably, I believe that what began as an analysis of whether the warrant could have been issued became transformed into an exercise where the judge ultimately considered whether he would have issued it. In other words, respectfully, the judge in the end substituted his view of the evidence for that of the issuing JP. This led him down the road to reversible error. Let me elaborate by referring to the relevant passages in his judgment. [23] From the outset, the trial judge expressed concern about the lack of corroboration regarding the alleged illegal acts. In other words, while many of the perfectly legal details provided by the tipster were corroborated i.e. name, address, place of work there was limited corroboration of any alleged illegal activity. He observed: 29 In my opinion, therefore, corroboration of only portion of the source's information, particularly innocent information such as his/her place of residence and employment particulars, only marginally adds to the strength of the informant's evidence and in particular where these corroborated pieces of information could be easily known by wide number of persons it adds very little to the source's credibility. 30 In this case the primary evidence which could form the required grounds comes from information received from an anonymous source. There is no other evidence of crime. The other evidence is only capable, at best, of corroborating the source's information. 31 The source is unproven and anonymous. There is very little to support the source's trustworthiness. The references to information provided concerning two other persons is only slightly helpful and adds very little if any to support the source's credibility. 32 For the reasons expressed above, corroboration of the suspect's connection to the impugned residence and her employment particulars, while confirming who the information pertains to and the location referenced, does little to strengthen the allegations regarding the marihuana grow operation. 33 There are some compelling features of the source's allegation, being the reference to the basement of the residence and the reference to the "huge lights plugged into outlets like those for stoves or dryers." References to the type of drugs, that is marihuana, and the fact that they are soon to be harvested, while somewhat detailed, are in my opinion not compelling details. 34 Although the Information to Obtain does not appear to reveal if the information's source of information was firsthand or not, Constable Huett in his testimony during the voir dire indicated that the source's information was firsthand. [24] The judge then acknowledged that some information did in fact corroborate the alleged illegal activity. This included the FLIR test results and the covered windows. This is where believe the judge began to slip into error. He clearly acknowledged that this information was probative. However he then proceeded to weigh this evidence; thus effectively substituting his views for those of the issuing JP. For example, he weighed the FLIR results and found them to be more probative than evidence of hydro usage: 36 It is, however, the totality of the circumstances or the whole of the evidence which needs to be examined. Here the source has provided information about specific individual ‑‑ the accused Jennifer Durling. The source is unproven and anonymous. The information about the grow operation, while disclosing few details is not, in my opinion, compelling. In my opinion the source is neither credible nor is the information compelling. Is the corroboration therefore of the FLIR testing and the observations about the covered windows sufficiently strong to overcome the weaknesses identified in the other aspects under consideration. In my opinion it is not. Clearly the FLIR testing is supportive and consistent with the allegation however because of the limited information it conveys, i.e. heightened levels of heat at single instance, it is not sufficiently strong or probative to confirm the existence of the marihuana grow operation and to overcome the weaknesses in the source's information noted above. While recognize that the FLIR testing has some probative value, cannot agree that it is equivalent to hydro readings such that this case is on all‑fours with Plant as the Crown suggests. [Emphasis added.] [25] The judge then appears to address the very question that the issuing JP was tasked to answer, i.e.: Was there enough evidence to establish credibly‑based probability? ¶ 37 In my opinion considering the totality of the circumstances, the evidence does not rise above the level of suspicion, albeit strong suspicion. It does not amount, in my opinion, to credibly‑based probability. [26] acknowledge that later in this same paragraph the judge appears to address whether it would be possible for the JP to have acquired the requisite reasonable and probable grounds. This is reflective of the proper test: ... It is not possible, in my opinion, for Justice of the Peace, given the evidence contained in the Information to Obtain, as edited, to properly draw the required inferences necessary to conclude that reasonable and probable grounds existed that evidence of marihuana grow operation were present in this residence. [Emphasis added.] [27] Yet in this same passage, the judge seems to suggest that the issuing JP had to draw proper inferences as opposed to reasonable inferences as the test prescribes (and as the judge carefully articulated earlier in his judgment). Respectfully, this is an incorrect approach. The issuing JP was entitled to draw her own inferences as long as they were reasonable. She was not restricted to only those inferences deemed proper (presumably by the reviewing judge). This approach therefore unduly restricted the level of deference to which the JP was entitled. By misapplying the standard of review in this way, the judge erred in law. [28] In summary, it appears that the judge began his analysis by properly considering whether the JP could issue the warrant, but effectively ended up considering whether he would have issued the warrant in these circumstances. Again, that was not his role. [29] For all these reasons conclude that the judge's approach to this issue reveals an extricable legal error which we must address. Specifically, it now falls to us to apply the proper test. For example, in R. v. Shiers, supra, Fichaud, J.A. observed: 27 By overturning the warrant without considering whether there was evidence in the Information from which the issuing judge could reasonably draw the connecting inferences, the reviewing judge substituted her discretion for that of the issuing judge, which was an error of law. 28 As the Supreme Court of Canada stated in Dr. Q,. supra, para 43 44, if the lower court has not applied the correct standard of review, this Court must apply that standard. [Emphasis added.] [30] Thus, based on the information provided in this case, as supplemented in the voir dire, ask whether the JP could have issued the warrant? For the following reasons, would say that she could: The tipster was specific as to the respondent's identity, her phone number, her employment, the location of her residence, and the fact that the premises were leased. This was all corroborated by the police. As revealed in the voir dire, the tipster reported to have personal knowledge as opposed to reporting hearsay. The FLIR results were probative not only in relation to other nearby dwellings, they also confirmed that the increased heat was coming from the basement. This corroborates the tipster's report. The covered basement windows further corroborated the alleged illegal activity. [31] Thus, on the evidence presented, conclude that the search warrant was quashed in error. The warrant having been valid, the search was lawful and there was no allegation that it was otherwise unreasonable. Accordingly, on the evidence, there was no breach of s. of the Charter and no basis on which to exclude the fruits of the search. Had that evidence not been excluded, the result of the trial would not necessarily have been the same. It follows that the appeal should be allowed and a new trial ordered. DISPOSITION [32] I would allow the appeal and order a new trial. MacDonald, C.J.N.S. Concurred in: Cromwell, J.A. Fichaud, J.A.

The accused successfully challenged the sufficiency of the grounds to issue a search warrant that was used to search her residence. Although the Information to Obtain was based on information from an anonymous, unproven source, the source's information was corroborated by independent information as to the accused's employment and residence. The only corroboration of the presence of a crime (a suspected marijuana grow operation) was from a FLIR test. The court found that the evidence did not rise above the level of suspicion, albeit strong suspicion. Corroboration of the employment and residence of the accused did not provide particular support for the informant's credibility; neither were results of the FLIR test and the presence of covered windows sufficient corroboration. The Crown appealed. Appeal allowed; new trial ordered. Although the trial judge articulated the proper test and began by analyzing whether the warrant could have been issued, the issue was later mistakenly transformed into whether he, himself, would have issued it. By weighing the probative evidence, the trial judge effectively substituted his views for those of the issuing justice and wrongly required the issuing justice to draw proper inferences as opposed to reasonable inferences.

d_2006nsca124.txt

2000 SKQB 106 Q.B. A.D. 1999 No. 628 J.C.P.A. IN THE COURT OF QUEEN’S BENCH JUDICIAL CENTRE OF PRINCE ALBERT BETWEEN: MARY JANE HERMAN and SASKATCHEWAN GOVERNMENT INSURANCE RESPONDENT P. V. Abrametz for the appellant C. L. Kraft for the respondent JUDGMENT KRUEGER J. March 9, 2000 [1] Mary Jane Herman, as guardian of three infant children of a deceased single mother has appealed the decision of Saskatchewan Government Insurance that the children are not entitled to any additional benefits. The sole issue before the court is whether any additional dependant child care benefits are payable under s. 146(5) of The Automobile Accident Insurance Act, R.S.S. 1978, c.A-35 when the deceased victim was unemployed and had no income at the time of the fatal motor vehicle accident. [2] The facts have been agreed upon by the parties and may be briefly stated. On August 23, 1998, Bonnie Herman was the single mother of three children, Brett age 6, and twins Blade and Braden age 4. On that date she was involved in motor vehicle accident and suffered injuries which resulted in her death. She was not employed and not receiving any income at the time of the accident. Nor would she have become entitled to an income within six months of the accident if she had survived. [3] As there was no surviving spouse the children are entitled to any benefits payable under s.146(5) of the Act. [4] SGI paid to the Public Trustee for the children the sum of $47,427.00 being the minimum death benefit pursuant to s. 146(3). [5] Herman claims that since the money paid by SGI was in relation to the youngest child, who in the circumstances of this case, takes the place of surviving spouse, the death benefit becomes fixed at $47,427 and the formula used in s.146(1) would now read: $47,427 50% of IRB. Accordingly, the IRB to be used in s.146(5) should be $94,854. [6] For the reasons that follow, disagree. [7] The relevant portions of The Automobile Accident Insurance Act read as follows: 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 accident. (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 children. (6) The benefit mentioned in subsection (5) respecting dependent child is payable until that dependent child reaches 21 years of age. 147(1) Where both of dependent child’s parents die in an accident, the dependent child is entitled to the death benefit mentioned in subsection 146(1) for each parent as if the dependent child were surviving spouse of each parent. (2) Where deceased victim is the sole parent of dependent child, the dependent child is entitled to the death benefit mentioned in subsection 146(1) as if the dependant child were the surviving spouse of the deceased victim. (3) Where, at the time of the accident, deceased victim did not leave surviving spouse and there is child who was dependent of the victim, the dependant child is entitled to the death benefit mentioned in subsection 146(1) as if the dependent child were surviving spouse of the deceased victim. (4) The death benefit mentioned in subsection (1), (2) or (3) is payable only until the dependent child reaches 21 years of age. (5) In case where subsection (1), (2) or (3) applies and where there is more than one dependent child, the following rules apply: (a) each dependent child is entitled to an equal share of the death benefit pursuant to this subsection as long as that dependent child remains under 21 years of age; (b) the dependent children are entitled to the death benefit mentioned in subsection 147(1) on the basis of the youngest dependent child being considered as the surviving spouse; (c) the death benefit mentioned in clause (b) is payable until the youngest dependent child reaches 21 years of age; (d) the dependent children are entitled to the benefit mentioned in subsection 146(5) calculated on the number of dependent children, but not including the youngest dependent child; (e) the benefit mentioned in clause (d) is payable until the second youngest dependent child reaches 21 years of age. [8] From reading of the whole of s. 146, am of the view that the benefits payable to surviving spouse are divided into two parts, both of which are based on the income replacement benefit that the deceased victim would have been entitled to had the victim survived the accident. 50% of the income replacement benefit is payable to the surviving spouse as death benefit and 5% of the income replacement benefit is payable for each dependent child up to age 21 as an additional benefit. The minimum death benefit that is payable is $45,000 adjusted for inflation. Where the deceased victim would not have been entitled to any benefit had the victim survived the accident there is still payable the minimum death benefit, but that amount does not become factor in calculating the income replacement benefit for the purpose of applying the formula contained in s. 146(5). It is the total amount payable as death benefit. The income replacement benefit, in this case, is zero and the amount payable pursuant to the formula in either s.146(1) or s. 146(5) is zero. [9] Section 147 of the Act does not assist Herman. It merely provides that where there is no surviving spouse or where the deceased victim was, as is the case here, sole parent, and there is more than one dependant child the surviving spouse death benefit under s. 146(1) is payable for the youngest child and the remaining children become entitled to the additional benefit payable under s.146(5). Where, however, no benefit other than the minimum death benefit of $45,000 (adjusted for inflation) is payable under s. 146(3) no further amount is payable under either s. 146(5) or s. 147(5). [10] The appeal is accordingly dismissed without any order as to costs.

SGI paid $47,427, the minimum death benefit pursuant to s.146(3) of the Automobile Accident Insurance Act, to the guardian of the three infant children of the deceased single mother. The guardian appealed SGI's decision that the children were not entitled to any additional benefits. She argued that since the money paid was in relation to the youngest child, who in the circumstances took the place of a surviving spouse, the death benefit becomes fixed at $47,427, and the formula used in s.146(1) would be half of the income replacement benefit(the IRB) that the deceased would have been entitled to had she survived the accident. Accordingly the IRB to be used in s.246(5) should be $94,854. The sole issue was whether any additional child care benefits were payable under s.146(5) when the deceased was unemployed and had no income at the time of the fatal motor vehicle accident. HELD: The appeal was dismissed without order as to costs. Where the deceased victim would not have been entitled to any benefit had she survived the accident, the minimum death benefit is still payable, but that amount does not become a factor in calculating the IRB for the purpose of applying the formula contained in s.146(5). It is the total amount payable as a death benefit. The IRB in this case was zero and the amount payable pursuant to the formula in either s.146(1) or s.146(5) is zero. Where no benefit other than the minimum death benefit of $45,000 (adjusted for inflation) is payable under s.146(3), no further amount is payable under either s.146(5) or s.147(5).

b_2000skqb106.txt

QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2016 SKQB 166 Date: 2016 05 06 Docket: QBG 1499 of 2015 Judicial Centre: Saskatoon BETWEEN: FCC GROUP INVESTMENT CORPORATION and THE DIRECTOR OF CORPORATIONS FOR SASKATCHEWAN Counsel: Jeffrey M. Lee, Q.C. for the applicant Michael J. Morris for the respondent JUDGMENT SCHERMAN J. May 6, 2016 Introduction [1] Shareholders of FCC Group Investment Corporation [FCC] approved plan of arrangement and seek an order approving that arrangement pursuant to s. 186.1 of The Business Corporations Act, RSS 1978, B-10 [Act or SBCA]. The plan of arrangement involves proposed liquidation and dissolution with provision that if various shareholders of record cannot be found after outreach efforts, their pro rata entitlement to return of the corporation’s capital will accrue to and be paid to the remaining known shareholders. FCC argues the court has the power to approve such an arrangement under the powers given to it under ss. 186.1(4), 203(8) and 210(m) of the Act. [2] The Director of Saskatchewan Corporations Branch opposes approval of the plan of arrangement on the basis that s. 204 of the Act requires corporation to distribute its assets among its shareholders according to their respective rights on dissolution and s. 220 directs that property distributable to shareholder who cannot be found shall be converted to money and paid to the Minister of Finance. Under s. 220(3) shareholders can apply to the Minister of Finance for payment out to them on proof of entitlement. [3] FCC is the successor corporation to three corporations, each of which was an investment vehicle for potential immigrants to Canada under an immigrant investor program. FCC has 275 shareholders from 19 countries. Despite history of mismanagement or worse by the promoters of the three original immigrant investor funds and significant litigation and related problems, FCC has dealt with those problems, and the capital of the corporation is now sufficient to return to each shareholder their original capital investment. However, they will have had little, if any, return on their investments over some thirty years. [4] Despite significant efforts, FCC has been unable to determine current addresses or other contact information for 37 of its shareholders. It wants to liquidate and distribute its capital to its shareholders. Because it does not know how to contact the “missing” 37 shareholders, the plan of arrangement approved by the remaining shareholders contemplates an outreach or advertising program to be conducted over the next two years with view to reaching at least some of the missing 37 shareholders and thereby give them an opportunity to confirm their status as shareholders and to participate in the distribution of capital on dissolution. [5] The purpose of the arrangement was described in Notice of Meeting and Management Information Circular circulated to known shareholders in advance of the meeting which approved the plan of arrangement. It stated as follows: Purpose of the Arrangement The purpose of the Arrangement is to achieve result whereby FCC GIC, upon dissolution, will be permitted to distribute all of its net proceeds to those of its Shareholders who have “proven claims in establishing their status as Shareholders rather than having portion of the proceeds revert to the Minister of Finance in the right of Saskatchewan pursuant to the SBCA. The rationale for the Arrangement is that the Shareholders have already sustained significant loss on their investment as result of the oppressive acts of former management. The business purpose of the Arrangement is to assist in relieving the Shareholders against the losses suffered by them and to provide Missing Shareholders with reasonable opportunity to obtain notice of the Plan of Arrangement, to identify themselves to the Company, to satisfy the Participation Requirements (as defined in the Plan of Arrangement) and thereby to obtain return of their respective original investments in the Company. The Arrangement is to be carried out pursuant to the terms of the Plan of Arrangement. (Emphasis added) The Legislation [6] The relevant provisions of the Act within Divisions XIV and XVI dealing with Fundamental Changes and Liquidation and Dissolution respectively are as follows: DIVISION XIV-FUNDAMENTAL CHANGES 186.1(1) In this section “arrangement” includes: (f) liquidation and dissolution of corporation; and (3) Where it is not practicable for corporation that is not insolvent to effect fundamental change in the nature of an arrangement under any other provision of this Act, the corporation may apply to court for an order approving an arrangement proposed by the corporation. (4) In connection with an application under this section, the court may make any interim or final order it thinks fit including, without limiting the generality of the foregoing: (e) an order approving an arrangement as proposed by the corporation or as amended in any manner the court may direct. DIVISION XVI-LIQUIDATION AND DISSOLUTION (7) After issue of certificate of intent to dissolve, the corporation shall: (c) proceed to collect its property, to dispose of properties that are not to be distributed in kind to its shareholders, to discharge all its obligations and to do all other acts required to liquidate its business; and (d) after giving the notice required under clauses (a) and (b) and adequately providing for the payment or discharge of all its obligations, distribute its remaining property, either in money or in kind, among its shareholders according to their respective rights. (8) The Director or any interested person may, at any time during the liquidation of corporation, apply to court for an order that the liquidation be continued under the supervision of the court as provided in this Division, and upon such application the court may so order and make any further order it thinks fit. 210 In connection with the dissolution or the liquidation and dissolution of corporation, the court may, if it is satisfied that the corporation is able to pay or adequately provide for the discharge of all its obligations, make any order it thinks fit including, without limiting the generality of the foregoing: (l) subject to section 216, an order approving any proposed interim or final distribution to shareholders in money or in property; (m) an order disposing of any property belonging to creditors or shareholders who cannot be found; 220(1) Upon the dissolution of corporation, the portion of the property distributable to creditor or shareholder who cannot be found shall be converted into money and paid to the Minister of Finance. (2) payment under subsection (1) is deemed to be in satisfaction of debt or claim of such creditor or shareholder. (3) If at any time person establishes that he is entitled to any moneys paid to the Minister of Finance under this Act, the Minister of Finance shall pay an equivalent amount to him out of the general revenue fund. 221(1) Subject to subsection (2) of section 219 and section 220, property of corporation that has not been disposed of at the date of its dissolution vests in Her Majesty in right of Saskatchewan. Judicial Consideration [7] Counsel were unable to provide me with any authorities interpreting these provisions of the Act in comparable situation. FCC cited the following decisions as providing some guidance: BCE Inc. 1976 Debentureholders, 2008 SCC 69, [2008] SCR 560 [BCE]; Confederation Financial Services (Canada) Limited Confederation Treasury Services Limited (2003), 2003 CanLII 46351 (ON SC), 40 CBR (4th) 10 (Ont Sup Ct) [Confederation Financial Services]; and Canadian Red Cross Society (Re), 2012 ONSC 7124 (CanLII), 99 CBR (5th) 101. The Director, in addition to BCE, cited Re Prairie Fibreboard Ltd. (1962), 1962 CanLII 245 (SK QB), 36 DLR (2d) 767 (Sask QB) [Prairie Fibreboard], as providing some guidance. With the exception of BCE, found no assistance in these decisions. [8] Prairie Fibreboard was an unopposed application by the liquidator under the provisions of The Companies Winding Up Act, RSS 1953, 131 (since rep), seeking approval to distribute to charities small amount of funds remaining after discharge of all of the corporation’s debts. The decision does not engage the arguments and issues that are in play in the present situation. [9] In Confederation Financial Services the Ontario Public Guardian and Trustee was challenging previous court order, that had not been appealed, which directed that funds unclaimed in respect of certain “residue certificate holders” under form of trust indenture could be paid pari passu to the existing residue certificate holders, notwithstanding that the existing holders were paid in full. The residue certificates arose pursuant to court sanction plan under the Companies’ Creditors Arrangement Act, RSC 1985, C-36. The beneficiaries under the residue certificates were creditors of the company in question, not shareholders. The decision dismissing the Public Guardian and Trustee’s application was made in the context of challenge to an existing un-appealed court order and was decided upon issues related to the concept of bona vacantia and the Escheats Act, RSO 1990, E.20 within the law of Ontario. Here again the decision does not engage the arguments and issues that are in play in the present situation. [10] In Canadian Red Cross Society the Red Cross, in the face of class action proceedings by large number of claimants, had plan of arrangement approved under the Companies’ Creditors Arrangement Act. That plan involved the creation of five separate trust funds to pay out claims. Cheques issued to various beneficiaries of the trusts were uncashed. The trustees of the funds sought direction. The court ordered that the time and expense that would be involved in attempting to find and pay those who did not cash their cheques was not proportional to the potential benefit involved, and while no perfect solution existed, the court ordered the funds in question be paid to known class members identified as “known partially paid claimants”. Once again, the decision does not engage the arguments and issues that are in play in the present situation. FCC’s Position [11] Counsel for FCC cites BCE (see paras. 136 to 155) for the criteria court should consider when deciding whether to approve plan of arrangement. FCC’s position is that its proposed plan of arrangement has complied with all statutory requirements for an arrangement to be approved by the court and satisfies the criteria enunciated in BCE for approval. It says there is valid business reason for the arrangement the shareholders have approved and the plan is proposed in good faith and is fair and reasonable in the circumstances. [12] Stated in more detail FCC says that: i. Section 186.1(4) gives the court the power to approve an arrangement proposed by the corporation; ii. Section 186.1(1)(e) defines “arrangement” as including liquidation and dissolution of corporation; iii. The benefit of the arrangement proposed for the missing shareholders is that it calls for significant efforts and expenditures to be made over two-year period to find the missing shareholders (outreach efforts) so that they might participate in distribution of capital on dissolution; iv. Without the proactive outreach efforts contemplated by the proposed plan of arrangement FCC says that realistically the missing shareholders will never be found and will never exercise their rights as shareholders much less become aware of their entitlement under s. 220 of the Act. It argues that any theoretical benefit to the missing shareholders under s. 220 of the Act is practically non-existent; v. Section 210 provides that in connection with the liquidation and dissolution of corporation the court may make any order it thinks fit including, under ss. (l) and (m), approving any distribution to shareholders and disposing of property belonging to shareholders who cannot be found; and vi. It is just and equitable that the known shareholders share the capital that would have otherwise been payable to missing shareholders since the shareholders (albeit through the corporation) have had to expend significant monies and efforts on litigating to oppose oppressive conduct and various problems created by the promoters. Thus FCC says thus sharing in the capital otherwise allocable to missing shareholders would provide the known shareholders some compensation for the wrongs done to them. The Director’s Position [13] The Director points out that the power of the court to approve plan of arrangement arises under Division XIV Fundamental Changes of SBCA. It argues that this division’s approval process is generally applicable to fundamental changes often involving change of control transactions where the arrangement is sponsored by the directors of target company and the goal is to require some or all shareholders to surrender control. The approval process is focussed on whether the arrangement proposed viewed objectively is fair and reasonable to all interested parties in such circumstances. The Director says s. 186.1 is here being used to circumvent the mandatory requirements of the Act with respect to the entitlement of missing shareholders and it should not be permitted to so use it. It says the plan of arrangement is not undertaken for valid business purpose within the approval criteria set forth in BCE. [14] The Director points out the plan of arrangement does not involve any elements of change of control or of shareholders being required to exchange one type of shares for other assets or any arrangement that facilitates an ongoing existence of the corporation. It argues that while fundamental change may involve the liquidation or dissolution of one corporation in the context of larger transaction (and thus s.186.1 defines arrangement as including liquidation and dissolution) what is sought here is simply liquidation that in effect deprives missing shareholders of their entitlement. It says Division XVI, dealing specifically with liquidation and dissolution, should have been used and that FCC is using it as means to circumvent the requirements of the Act. [15] The Director’s position is that it is basic right of shareholder to receive their pro rata entitlement on liquidation and dissolution of corporation. Section 220 of the Act is there to ensure this right is not extinguished. The proposal of FCC will extinguish this basic right and therefore even if the court has the power to approve the arrangement under s. 186.1(4) it should not do so. [16] The Director argues that: i. Had FCC proceeded with liquidation and dissolution in the normal manner there would be no question but that the funds of the missing shareholders would be dealt with under s. 220 of the Act; ii. The arrangement process is being used to circumvent the requirement that funds due to missing shareholders are paid to the Minister of Finance under the provisions of s. 220 of the Act; iii. There is no valid business purpose for the arrangement proposed since there is no benefit to the corporation. The benefit provided is to the known shareholders with the burden thereof imposed on missing shareholders. As disclosed in FCC’s own statement of the purpose of the arrangement, the purpose is to permit known shareholders to share in what would otherwise be the entitlement of missing shareholders; iv. The outreach program proposed by FCC could occur without court order approving it, and the liquidation can proceed in the normal manner; v. The powers of the court under s. 186.1(4) and s. 210 should be interpreted in limited manner that does not conflict with the mandatory direction in s. 220; and vi. Even if such limited interpretation is not given, the powers given the court under s. 210 are discretionary and should not be exercised as requested by FCC since to do so would extinguish shareholders’ rights, expropriate their property and the proposed arrangement is not fair and reasonable. Applicable Principles of Statutory Interpretation [17] Counsel for FCC says that applying the modern principle of statutory interpretation yields the conclusion that, to the full extent possible, ss. 186.1(4) and 210(m) of the SBCA and s. 220(1) should be read and interpreted in such manner as to permit these sections to co-exist and to operate in harmony. The interpretation it says should be given is one that allows the court to approve plan of arrangement that permits the court to override the direction of the legislature in s. 220. [18] Since its 1984 decision in Stubart Investments Ltd. Canada, 1984 CanLII 20 (SCC), [1984] SCR 536, the Supreme Court of Canada has consistently applied the so‑called “modern principle of statutory interpretation” as enunciated in E.A. Driedger, Construction of Statutes, 2d ed (Toronto: Butterworths, 1983), where the author stated, at page 87, the principle as follows: Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. [19] Subsequently, the so‑called “modern rule of statutory interpretation” was confirmed in Rizzo Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), [1998] SCR 27, and has been consistently applied by courts since. This modern rule is more fully articulated by Ruth Sullivan in Sullivan on the Construction of Statutes, 6th ed (Markham: LexisNexis Canada, 2014) [Sullivan]. After outlining the questions an interpreter should consider when determining whether provision applies to particular facts, Sullivan went on to say the following: §2.9 At the end of the day, after taking into account all relevant and admissible considerations, the court must adopt an interpretation that is appropriate. An appropriate interpretation is one that can be justified in terms of (a) its plausibility, that is, its compliance with the legislative text; (b) its efficacy, that is, its promotion of legislative intent; and (c) its acceptability, that is, the outcome complies with accepted legal norms; it is reasonable and just. [20] In chapter 11 of her text, Sullivan deals with “Coherence, Overlap and Conflict Resolution” in the interpretation of statutes. Starting with the presumption of coherence in legislation, she states at page 337: §11.3 The presumption of coherence is also expressed as presumption against internal conflict. It is presumed that the body of legislation enacted by legislature does not contain contradictions or inconsistencies, that each provision is capable of operating without coming into conflict with any other. As La Forest J. wrote in Friends of Oldman River Society v. Canada (Minister of Transport) [1992 CanLII 110 (SCC), [1992] SCR 3]: there is presumption that the legislature did not intend to make or empower the making of contradictory enactments. In Willick Willick [1994 CanLII 28 (SCC), [1994] SCR 670], Sopinka J. wrote: With respect to the application of the contextual approach, the objective is to interpret statutory provisions to harmonize the components of legislation inasmuch as is possible, in order to minimize internal inconsistency…. [21] Moving on to the presumption of overlap, she summarizes at page 338 that: §11.7 Presumption of overlap. When two provisions are applicable without conflict to the same facts, it is presumed that each is meant to operate fully according to its terms. So long as overlapping provisions can apply, it is presumed that they are meant to apply. The only issue for the court is whether the presumption is rebutted by evidence that one of the provisions was intended to apply exhaustively to facts of the sort in question. [Emphasis in original] and she continues at page 341 by noting that: §11.16 Exhaustive provisions. Under the presumption of overlap, when provisions overlap without conflict it is presumed that each is meant to apply. However, this presumption is rebutted by showing that in the circumstances one of the provisions is intended to exhaustively declare the applicable law. If one provision is exhaustive, the other cannot apply. [22] The learned author discusses extensively principles and techniques of conflict resolution, but before doing so, she states at page 344: §11.22 The challenges of defining conflict. When two or more provisions overlap, the courts try to give effect to each. They do not resort to the conflict resolution strategies at their disposal unless there is genuine conflict. However, determining whether genuine conflict exists in particular circumstances can be challenging. There are several distinct contexts in which provisions conflict with one another: overlap between federal and provincial provisions overlap between provisions enacted by different levels of government within the same jurisdiction overlap between provisions enacted by the same legislative body overlap between executive legislation and other legislation within the same. Interpretation of the SBCA [23] In BCE, in per curiam decision, the Supreme Court of Canada succinctly described the history, nature and purpose of the fundamental change provisions of the Canada Business Corporations Act, RSC 1985, C-44 [CBCA] as follows: 123 The s. 192 approval process has its genesis in 1923 legislation designed to permit corporations to modify their share capital: Companies Act Amending Act, 1923, S.C. 1923, c. 39, s. 4. The legislation's concern was to permit changes to shareholders' rights, while offering shareholders protection. In 1974, plans of arrangements were omitted from the CBCA because Parliament considered them superfluous and feared that they could be used to squeeze out minority shareholders. Upon realizing that arrangements were practical and flexible way to effect complicated transactions, an arrangement provision was reintroduced in the CBCA in 1978: Consumer and Corporate Affairs Canada, Detailed background paper for an Act to amend the Canada Business Corporations Act (1977), p. (“Detailed Background Paper”). 124 In light of the flexibility it affords, the provision has been broadened to deal not only with reorganization of share capital, but corporate reorganization more generally. Section 192(1) of the present legislation defines an arrangement under the provision as including amendments to articles, amalgamation of two or more corporations, division of the business carried on by corporation, privatization or “squeeze-out” transactions, liquidation or dissolution, or any combination of these. [24] Given the decision by Saskatchewan and other provinces to pass business corporations’ legislation that essentially replicated the CBCA, have no difficulty in finding the Supreme Courts analysis in BCE to be equally applicable to the SBCA. [25] It is my opinion that s. 186.1 of the SBCA is here being used by FCC for a purpose which the legislature did not intend. While s. 186.1 of the SBCA does specify that an arrangement includes “a liquidation or dissolution” of corporation (as does s. 192 of the CBCA) the context within which this is provided must be considered. review of Division XIV Fundamental Changes shows that it is directed at fundamental changes such as changes to corporations’ articles including share structures and rights, amalgamations of corporations, continuances in and out of Saskatchewan, borrowing rights, dissent rights, re-organizations in circumstances of insolvency and the like. This is consistent with the Supreme Court of Canada’s discussion of the approval process relating to s. 192 of the CBCA. [26] Section 186.1 is that last section in Division XIV. It, with some minor variations in language, contains the same provisions as s. 192 of the CBCA. In particular, ss. (3) of both sections read identically as follows: (3) Where it is not practicable for corporation that is not insolvent to effect fundamental change in the nature of an arrangement under any other provision of this Act, the corporation may apply to court for an order approving an arrangement proposed by the corporation. [27] Section 186.1 is expressly stated to be mechanism to effect fundamental changes that cannot practicably be implemented under other provisions of the Act. The liquidation and dissolution of FCC was practical under other provisions of the SBCA. Division XVI of the Act specifically provides for the ordinary process of liquidation and dissolution. It would have not only been practicable but simpler for FCC to have proceeded to dissolution under these provisions. [28] However, the normal liquidation and dissolution process could not achieve the stated objective of FCC to redirect the otherwise entitlement of missing shareholders to the remaining shareholders. Does this objective transform what would otherwise be normal liquidation and dissolution into fundamental change in the nature of an arrangement which the court can and should approve under the powers given to the court in s. 186.1(4)(e) or otherwise? [29] FCC argues that should interpret s. 186.1(4)(e) as so permitting because, among other reasons, s. 210 authorizes the court to make any order it thinks fit in connection with the liquidation and dissolution of corporation including: 210 (l) an order approving any proposed interim or final distribution to shareholders in money or in property; (m) an order disposing of any property belonging to creditors or shareholder who cannot be found. [30] When interpreting the SBCA my objective, as outlined in Sullivan, is to achieve an appropriate interpretation that can be justified in terms of its compliance with the legislative text, promotion of the legislative intent and an outcome that complies with accepted legal norms. In pursuing these goals of plausibility, efficacy and acceptability am assisted by the presumptions of coherence and overlap. [31] do not interpret s. 210(l) as assisting FCC in its submissions. interpret this subsection as giving the court, in the context of liquidation or dissolution, the power to approve proposed distributions, interim or final, whether in money or property. The power is directed at “distribution” which must be interpreted as distribution of the assets of the corporation after all debts and obligations of the corporation are satisfied. Thus, this section permits the court to approve distribution to shareholders of their entitlement, qua shareholders, either in the form of money or the division of the property or assets of the corporation. Using the example of corporation owning real estate, the court could order that rather than the real estate being liquidated, it be divided among the shareholders, in specie, proportionate to their entitlement as shareholders. [32] can see no good reason for interpreting this subsection as having wider purpose and intent. Specifically, there is no good reason to conclude the legislature intended by this subsection to permit the court to override the mandatory directions contained in ss. 220 and 221. Interpreted in this manner there is no conflict between the mandatory requirements in ss. 220 and 221 and the power given to the court in s. 210(l). The court can exercise its power under s. 210(l) while comply with the mandatory direction in ss. 220 and 221. Thus, these provisions of the Act can be read to operate harmoniously and without conflict. [33] similarly find no conflict between the power given the court in s. 210(m) to order the disposition “of any property belonging to creditors or shareholders who cannot be found” and s. 220(1) which requires that on dissolution “the portion of the property distributable to creditor or shareholder who cannot be found shall be converted into money and paid to the Minister of Finance”. [34] As interpret s. 210(m), the reference to “disposition of any property belonging to creditors or shareholders who cannot be found” contemplates property of shareholders and creditors in the hands of the corporation, not the rights of shareholders that flow from their status as shareholders. Obviously the shares themselves are property of the shareholders, but the interpretive question to be answered is whether the legislature intended s. 210(m) to include rights arising qua shareholder when the language used can have narrower meaning, which does not conflict with the specific provision contained in s. 220 of the Act. [35] For dissolution of corporation to proceed there has to be an ability for the liquidating corporation to dispose of and convert into money, property in its possession owned by creditors and shareholders who cannot be found. corporation is not entitled to dispose of property owned by its creditors and shareholders simply because they cannot be found. It has duty to account. Section 210(m) gives the court the power to order the disposition of such property and thus solve the dilemma of corporation wishing to dissolve but being in possession of property owned by creditors or shareholders. On the face of it the language used in s. 210(m) deals only with the disposition of such property. It does not purport to speak to the distributive rights of shareholder, qua shareholder on dissolution. This the legislature has addressed in s. 220. [36] It is my interpretation that in s. 210(m) the legislature was intending to give the court the ability to order disposition of property of creditors and shareholders. It was not there dealing with shareholder’s right to distribution on dissolution. Giving s. 210(m) this limited interpretation and scope, no conflict with s. 220 arises indeed it results in harmonious interpretation that permits each of the provisions to operate within their intended scope and sphere. To interpret s. 210(m) as including the power of the court to order elimination of shareholders’ rights to pro rata distribution of the corporation’s assets or property gives meaning to s. 210(m) that find not to have been intended by the legislature. [37] Approached from another perspective it is to be noted that s. 220 expressly says that “the property distributable to creditor or shareholder who cannot be found shall be converted into money and paid to the Minister of Finance”. The phrase “property distributable” to shareholder can encompass both property owned by shareholder or the shareholder’s pro rata entitlement, qua shareholder, to distribution on dissolution (as might potentially be ordered by the court under s. 210(l). This is different language than the words used in s. 210(m) which addresses “property belonging to .shareholders”. Thus it is reasonable and appropriate to conclude that the legislature was in these different sections intending to deal with distinct situations. In s. 220 the legislature used words that encompassed both the proceeds of disposition of property of shareholders who cannot be found and missing shareholders’ rights to pro rata distribution of the corporation’s property. [38] Interpreted in this manner, the presumptions of coherence (against internal conflict) and the presumption of overlap as outlined above can operate. Further, the objective of achieving harmonious interpretation is achieved. [39] do not interpret the power of the court found under either s. 210(l) or (m) to approve any “distribution to shareholders in money or in property” or to make an order “disposing of any property belonging to creditors or shareholders who cannot be found” as giving the court the power to so order where it would conflict with the express directions found in s. 220 and effectively eliminate shareholder’s express rights under s. 220. [40] To comply with the principles of avoiding conflict and giving harmonious interpretation to the legislation as whole, must interpret s. 210(l) and (m) as giving the court power to make such orders in circumstances other than where it would conflict with the express directions found in s. 220. The interpretations have given to the statutory provisions in question are consistent with the nature and purpose of the fundamental change provisions of the SBCA as extrapolated from the Supreme Court of Canada’s decision in BCE and that consistency supports the plausibility, efficacy and acceptability of the interpretations have given to the language in question. Conclusion [41] Given the interpretations I have made with respect to the applicable statutory provision, I conclude that I do not have the power to approve the plan of arrangement proposed by FFC. In my opinion s. 220 of the SBCA is mandatory and requires that where upon dissolution of corporation shareholders cannot be found that the pro rata entitlement of those unfound shareholders shall be paid to Minister of Finance. [42] If am wrong in my interpretation of the SBCA and this court does have the power to approve the proposed plan of arrangement, conclude that such powers as the court has under ss. 186.1(4)(e), 203(8) and 210 are discretionary. The power is to do what think fit. In all of the circumstances do not think it appropriate and fit to approve the plan of arrangement proposed. [43] The effect of approving the proposed arrangement would be to deprive the missing shareholders of their right to recover their pro rata entitlement to participate in distributions to shareholders on dissolution, then or subsequently under the provisions of s. 220(3). Even if had the power to cancel such right, that is decision that should not be made lightly. [44] While the corporation and thus the entire body of shareholders may have suffered oppressive conduct and potentially loss as result of the actions of former management, such losses were also suffered by the missing shareholders. Shifting the pro rata entitlement of missing shareholders to the known shareholders might be viewed as compensating the known shareholders, but it accomplishes that end only by increasing the loss to the missing shareholders. The proposed plan of arrangement would, in my assessment, benefit the known shareholders at the expense of the missing shareholders. Thus do not view the arrangement proposed as fair and reasonable to all affected parties. [45] During argument raised with counsel whether creating fund consisting of the entitlement of the missing shareholders on dissolution with this court ordering that: i. the proceeds of such fund be utilized to fund the outreach efforts proposed to find missing shareholders; ii. fixing pro rata distribution entitlement for the missing shareholders after payment of the costs of such outreach efforts from such fund; and iii. making distributions to such missing shareholders as are found to qualify any paying unclaimed balances or distribution entitlements to the Minister of Finance might be plan of arrangement that would be fair and reasonable. That is an approach and potential application that it is open to FCC to consider. However, the decision as to whether to propose such an approach as an alternative plan of arrangement is decision for FCC to make. FCC can, without the need for any order of this court, proceed with additional outreach efforts as it may see fit. Should FCC decide to simply liquidate and dissolve in the usual manner, without additional outreach efforts, and pay the distribution entitlement of missing shareholders to the Minister of Finance, that option is also available to it. [46] In the circumstances dismiss the application for approval of the proposed plan of arrangement. While the Director, on my request, did participate and oppose the application, am of the view that the Director should, in all of the circumstances, bear its own costs of this application.

HELD: The court held that it did not have the power to approve the proposed plan of arrangement. The court applied the rules of statutory interpretation, specifically the presumption of coherence and overlap, to the provisions of the Act and found that the applicant was using s. 186.1 for a purpose that the legislature did not intend. The applicant could have proceeded to dissolution under Division XVI. In s. 210(m) the legislature intended to give the court the ability to order disposition of property of creditors and shareholders but not to deal with a shareholder’s right to distribution on dissolution.

b_2016skqb166.txt

J. 2000 SKCA 141 Docket: 3371 THE COURT OF APPEAL FOR SASKATCHEWAN Coram: Cameron, Gerwing Lane JJ.A. THE CITY OF REGINA and EAST LANDING PLAZA LTD. and SASKATCHEWAN ASSESSMENT MANAGEMENT AGENCY RESPONDENTS COUNSEL: Mr. Neil Robertson for the Appellant Mr. F.C. Zinkhan for the Respondent Mr. B. Hornsberger, Q.C. for the Sask. Municipal Board DISPOSITION: On Appeal From: Assessment Appeals Committee Appeal Heard: December 8, 2000 Appeal Dismissed: December 8, 2000 (orally) Written Reasons: December 11, 2000 Reasons By: The Honourable Madam Justice Gerwing In Concurrence: The Honourable Mr. Justice Cameron The Honourable Mr. Justice Lane GERWING J.A. (orally) [1 land owner appealed an assessment for taxation purposes to the Board of Revision of the City of Regina (the “Board”) alleging it to be too high. No cross-appeal was filed by the City, but the Board increased the assessment. The City then appealed to the Saskatchewan Municipal Board Assessment Appeals Committee (the “Committee”) to ask for further increase. There was no cross-appeal by the owner. [2 The Committee concluded that the Board had erred, having no jurisdiction, as the matter had unfolded, to make an increase, and it restored the original value. [3 Leave to appeal was granted with respect to the following three questions: (1) Did the Committee err in jurisdiction in making an order with respect to issues not raised by the appellant’s notice of intention to appeal? (2) Did the Committee err in law in ruling that the assessed value cannot be increased where the board orders correction of errors in the assessment? (3) If not, then did the Committee err in jurisdiction in failing to have regard to and to apply s. 263.2 of The Urban Municipality Act, 1984 to order an adjustment in the assessment to reflect the corrections? [4 We are of the view that the answer to all three of these questions is no. On the facts of the case, the Committee was correct in concluding that the Board had no jurisdiction to make the order which it did. It then, as an appellate entity, was asked to affirm what was, in essence, a nullity. This it could not do. While its procedure was flawed to some extent in that it did not specifically raise the vires issue so as permit the City to make argument on it, its conclusion in this respect was correct. The issue of vires in the body below was open to it and indeed necessary to it to consider its conclusion in this regard. [5 Having given these answers, the appeal of the City, in essence, stands dismissed and the respondent taxpayer will have its costs in the ususal way on double Column V.

The landowner appealed an assessment for taxation purposes to the City Board of Revision alleging it was too high. No cross-appeal was filed by the City but the Board increased the assessment. The City then appealed to the Saskatchewan Municipal Board Assessment Appeals Committee to ask for a further increase. There was no-cross appeal by the owner. The Committee concluded the Board erred, having no jurisdiction to make an increase, and restored the original value. Leave to appeal was granted with respect to whether the Committee erred in making an order respecting issues not raised by the notice of intention to appeal; in ruling the assessed value cannot be increased where the board orders correction of errors in the assessment; if not, whether the Committee erred in jurisdiction in failing to apply s.263.2 of the Urban Municipality Act. HELD: The appeal was dismissed with costs on double column V to the respondent. The Committee was correct in concluding the Board had no jurisdiction to make the order. It was asked to affirm what was in essence a nullity.

2_2000skca141.txt

LANE J.A. PROVINCIAL COURT PROVINCE OF SASKATCHEWAN INFORMATION 44907292 HER MAJESTY THE QUEEN V. WADE JEFFREY ST. GERMAINE Perry Polischuk for the Crown Daryl Labach for the Accused JUDGMENT KOLENICK, PCJ March 20, 2001 [1] The accused is charged that he did, on or about July 10th, 2000, operate a motor vehicle while his ability to do so was impaired, and also, operate a motor vehicle while over .08, contrary to s. 253(a) and 253(b) of the Criminal Code, respectively. [2] The following issues arose during the trial:1) Was there a breach of the rights of the accused under ss. 8 and 9 of the Charter to be secure against unreasonable search or seizure, and not to be arbitrarily detained, in regard to the issue of reasonable and probable grounds for the demand? If there was a breach, is there a remedy under s. 24(2) of the Charter?2) Is the evidence sufficient to prove beyond a reasonable doubt the offence of impaired driving, contrary to s. 253(a) of the Criminal Code? [3] On July 10, 2000, at approximately 2:20 a.m., Cst. Ernie Louttit of the Saskatoon Police Service was on duty. He was operating marked police vehicle, and he was stopped behind vehicle at red light. He observed that the vehicle did not move despite that the traffic light turned green at least twice. [4] The officer activated the emergency lights on his vehicle, and went to check on the driver, with concern that he might be in some nature of physical distress. He identified the accused seated upright behind the wheel, wearing bathing suit. He appeared to be sound asleep, or passed out. [5] He was aware of the smell of alcohol from the accused. He grabbed him by the wrist, and the co-accused woke up immediately. Shortly thereafter, he was able to comprehend what was happening. [6] On the evidence, the officer did not ask the accused whether he had been drinking. He walked him back to the police vehicle, and he did not observe any problems with balance or manner of walk. As well, the accused was co-operative throughout, and he did not have any difficulty understanding his rights and the breath demand, which were read to him from a printed card. [7] Cst. Loutit also indicated that the accused's eyes were somewhat glassy or bloodshot, and that his speech was bit slurred. However, he also conceded that there was nothing in his notes regarding slurred speech, nor had it been included in the investigation documents which he had prepared shortly after the investigation. As such, I must conclude that the evidence of slurred speech is not reliable. [8] The officer testified that he was at the scene with the accused for approximately fifteen minutes, and that ultimately the accused provided breath samples of 160 milligrams, and 150 milligrams at 2:56 a.m., and 3:17 a.m., respectively. In this regard, he had concluded that he had reasonable and probable grounds for the breath demand, based upon the accused sleeping through the two green traffic lights, the strong smell of alcohol, and that his eyes were somewhat bloodshot or glassy. Issue: Was there breach of the rights of the accused under ss. and of the Charter to be secure against unreasonable search or seizure, and not to be arbitrarily detained, in regard to the issue of reasonable and probable grounds for the demand? If there was breach, is there remedy under s. 24(2) of the Charter? [9] Section 254(3) of the Criminal Code provides, in part, as follows: "254(3) Where peace officer believes on reasonable and probable grounds that person is committing, or at any time within the preceding two hours has committed, as result of the consumption of alcohol, an offence under section 253, the peace officer may, by demand made to that person forthwith or as soon as practicable, require that person to provide then or as soon thereafter as is practicable (1) such samples of the person's breath as in the opinion of qualified technician, ... are necessary to enable proper analysis to be made in order to determine the concentration, if any, of alcohol in the person's blood, and to accompany the peace officer for the purpose of enabling such samples to be taken. [10] In these proceedings, the accused took the position that the officer did not have reasonable and probable grounds for making the demand, and that this conduct constituted breach of his Charter rights. This issue was considered by Dawson J. in v. Singer 1999 CanLII 12875 (SK QB), [1999] 25 CR (5th) 374, who set forth the following principles at paragraph 43: "The first issue is whether there were reasonable and probable grounds to make the demand for breath samples from the accused. As stated by the Supreme Court of Canada in v. Bernshaw (1994), 1995 CanLII 150 (SCC), 95 CCC (3d) 193 (SCC) at p. 216: ... The existence of reasonable and probable grounds entails both an objective and subjective component. That is, s. 254(3) of the Code requires that the police officer subjectively have an honest belief that the suspect has committed the offence and, objectively, there must exist reasonable grounds for this belief: v. Callaghan, 1974 CanLII 962 (SK QB), [1974] WWR 70 (Sask. Dist. Ct.) v. Belnavis, [1993] O.J. No 637 (Gen. Div.) (QL) ... v. Richard (1993), 1993 CanLII 8567 (ON SC), 43 MVR (2d) 144 ... In deciding whether Constable Hunt had reasonable and probable grounds to make the demand, must consider everything that the constable saw or knew about this matter at the time he had made his demand, including the circumstances of the accident. (R v. Saulnier (1990), 23 MVR (2d) 16 (B.C.C.A.)). Further peace officer can rely on hearsay evidence to form the reasonable and probable grounds. (R v. Strongquill, 1978 CanLII 1815 (SK CA), [1978] WWR 762 (Sask.C.A.))." [11] In considering this matter, the court is required to examine the evidence as whole, and of course, every case will depend great deal on its individual circumstances. In this regard, in v. Wudrick (2000) MVR (4th) 248 (Sask. Q.B., Smith, J.), the court concluded that the evidence was sufficient to establish reasonable and probable grounds for the breath demand. The officer therein indicated that she observed kind of swerving in the lane, that the accused appeared to be bit unsteady on his feet when he got out of his vehicle on two separate occasions. She smelled strong odour of liquor coming from his breath, his eyes were red and glassy, and his speech was slightly slurred. [12] In v. Brezinski 2000 ABQB 373 (CanLII), [2000] WWR 237 (Alta. Q.B.), the court referred to various authorities which have considered the issue of reasonable and probable grounds for the demand, at paragraph 64: "Cases in which an investigating officer's observations of the accused's physical comportment have been held inadequate to justify the making of 254(3) demand include: R. v. Cooper (1993), 46 M.V.R. (2d) 231 (Ont. Prov. Div.). The investigating officer noted strong odour of alcoholic beverage coming from the accused's vehicle and that the accused's eyes were glassy and his speech slurred. R. v. Khanataev (May 26, 1998). Finnestad Prov. J. (Ont. Prov. Div.). The accused was observed operating motor vehicle at grossly excessive speed, dodging in and out of traffic. He displayed flushed cheeks, glassy eyes, strong odour of alcoholic beverage on his breath. There was no slurring of speech, difficulties with balance, or difficulties complying with directions or instructions. R. v. Hopkie (1994), 1994 CanLII 5049 (SK QB), 126 Sask. R. 44 (Sask. Q.B.). The demanding officer noted strong odour of alcohol coming from the accused and red eyes. He also knew that the accused was the operator of motor vehicle which had been involved in collision. The finding of the learned trial Judge, that there were no reasonable and probable grounds, was upheld on appeal. MacPherson C.J. Q.B. stated at para. 16: Neither the smell of alcohol nor redness of eyes, together or by themselves, can indicate impairment in the ability to operate vehicle. But in combination with staggering walk, slurring of speech, knowledge of erratic driving, inability to reasonably answer questions, or perhaps any of these things, could give rise to belief of impairment on reasonable and probable grounds. But none of these other factors was present to the knowledge of [the investigating constable]. R. v. M. (C.R.)(1998), 1998 CanLII 13877 (SK QB), 33 M.V.R. (3d) 308 (Sask. Q.B.). The investigating officer noted smell of alcohol and bloodshot eyes. At issue in this case was the admissibility of statement as to alcohol consumption made by the accused young person. The statement was excluded, and it was held that there was no ground upon which the officer could have formed reasonable suspicion under section 254(2) of the Criminal Code. v. Hendel (July 3, 1997). Jennings J. (Ont. Gen. Div.). In this case, it was held that notwithstanding the detection of an odour of alcoholic beverage on the breath of the accused, as well as an observation of bloodshot eyes, the investigating officer did not come to the requisite reasonable suspicion for an approved screening device demand." [13] In v. McIntosh (1972) 1972 CanLII 766 (SK QB), WWR 459 (Sask. Dist. Ct.), (Maher D.C.J., as he then was), one of the investigating officers noted in the accused the presence of strong odour of alcohol and eyes which appeared to be bloodshot. Specifically, there were no signs of staggering, and the accused appeared to be coherent. The other officer had observed an odour of liquor and the accused had admitted to him that he had had drink. The court concluded as follows at paragraph 14: "14) These authorities lead me to the conclusion that the section contemplates the situation where peace officer, acting in prudent and cautious manner, considers set of circumstances which he reasonably believes to be true, and concludes with full conviction that the offence described as impaired driving is being committed or has been committed within the previous two hours. ... An observation by peace officer of eyes that appear to be bloodshot, accompanied by smell of liquor, does not constitute reasonable and probable grounds for making demand for sample of breath. [14] Further, in regard to the issue of the admissibility of evidence, in v. Poncelet (B) 1998 CanLII 13891 (SK QB), [1998] 169 Sask. R. 273 (Sask. Q.B.), Dovell J. stated as follows at paragraph 15: "[15] The existence of reasonable and probable grounds is central to the admissibility of breath and blood sample evidence. The Saskatchewan Court of Queen's Bench has held that certificates are not to be admitted where the "prerequisite reasonable and probable grounds" have not been present. [16] In R. v. Hopkie (D.M.) (1994), 1994 CanLII 5049 (SK QB), 126 Sask. R. 44 (Q.B.), Chief Justice MacPherson found that where the investigating officer had no reasonable and probable grounds for making breath sample demand, the accused's rights under s.9 of the Charter were breached and the evidence obtained from that breach should be excluded pursuant to s. 24(2)." [15] In v. Forsberg (2000) S.J. No. 154, had made the following observations, in regard to reasonable and probable grounds for the demand, at paragraph 43: [43] It is of course apparent that the issue of what will constitute reasonable and probable grounds for the demand will vary from case to case. Therefore, for example, in situation where the signs of impairment are quite obvious and visible, it may be that peace officer can conclude with brief and cursory observation of the accused that reasonable and probable grounds for the demand do exist. Conversely, where the indicators of impairment are more subtle and not as readily apparent, an officer will need to take greater care to be satisfied that reasonable and probable grounds for the demand are in fact present in the subject. [44] In either event, the peace officer is vested with very important responsibility which is intended to ensure that members of the public are not subjected to breath demand, and all of the serious consequences that may flow from it, in the absence of reasonable and probable grounds for the peace officer making the demand." [16] In the circumstances herein, the officer observed the accused's vehicle sit through the green lights. However, thereafter, he responded immediately and awoke when he took hold of his wrist. That latter-mentioned reaction should have caused him to consider that perhaps the accused was overtired, rather than being impaired by alcohol or drug. In this regard, must conclude that it was not reasonable for the officer to assume that the accused's vehicle not moving at the lights was reliable indicator of impairment for the within purposes. [17] Therefore, the only other factors which the officer observed was the strong smell of alcohol, and eyes which were somewhat glassy or bloodshot. In my view, those two factors were not sufficient for him to have concluded that reasonable and probable grounds did exist for the demand. Rather, he needed to make further observations in prudent and cautious manner to determine if he was able to observe other reliable indicators. In this regard, it is noteworthy that the officer did not even bother to question the accused to attempt to determine the particulars of his alcohol consumption. It would appear that he was in too great rush to conclude that he had grounds for the demand, despite the absence of reliable basis for that conclusion. [18] In light of the foregoing, I find that the evidence is sufficient to establish a breach of the rights of the accused under ss. 8 and 9 of the Charter to be secure against unreasonable search and seizure, and not to be arbitrarily detained. Therefore, pursuant to s. 24(2) of the Charter, the court must also consider whether it is appropriate to exclude from evidence the Certificate of Analyses, in accord with the principles contained in v. Stillman (1997) 1997 CanLII 384 (SCC), CR (5th) 1, v. Collins (1987) 1987 CanLII 84 (SCC), 56 CR (3rd) 193, and v. Poncelet (B) (1998) 1998 CanLII 13891 (SK QB), 169 Sask. R. 273. Specifically, I conclude that the Certificate of Analyses constituted conscriptive evidence which, on balance, would not have otherwise been discovered by alternative non-conscriptive means. As well, the admission of it into evidence might well render the trial unfair, and bring the administration of justice into disrepute. [19] Therefore as well, in the absence of the Certificate of Analyses, the evidence herein is not sufficient to prove the offence under s. 253(b) of the Criminal Code beyond a reasonable doubt, and the accused is not guilty. Issue: Is the evidence sufficient to prove the offence of impaired driving contrary to s. 253(a) of the Criminal Code? [20] The leading authority is, of course, v. Stellato 1994 CanLII 94 (SCC), [1994] 31 CR (4th) 60, in which the Supreme Court of Canada approved the following, from the Ontario Court of Appeal reasons (1993 CanLII 3375 (ON CA), 18 CR (4th) 127 at para. 14): "In all criminal cases the trial judge must be satisfied as to the accused's guilt beyond reasonable doubt before conviction can be registered. Accordingly, before convicting an accused of impaired driving, the trial judge must be satisfied that the accused's ability to operate motor vehicle was impaired by alcohol or drug. If the evidence of impairment is so frail as to leave the trial judge with reasonable doubt as to impairment, the accused must be acquitted. If the evidence of impairment establishes any degree of impairment ranging from slight to great, the offence has been made out. In the process of making its analysis, the Ontario Court of Appeal judgment made reference to the so-called "classic" signs of impairment, namely: erratic driving, strong odour of alcoholic beverage, glassy and bloodshot eyes, slurred speech and unsteadiness on one's feet. Obviously this was not intended to be an all-encompassing list, and also, its application will very much depend on the circumstances of given case. [21] As mentioned previously herein, I do not regard the evidence of the accused remaining asleep through the green lights to be a reliable indicator of impairment, given that the accused was immediately awakened when the officer grabbed him by the wrist. As well, shortly thereafter, he appeared to fully comprehend the circumstances in which he was involved. [22] Therefore, one must consider the evidence of a strong smell of alcohol, and eyes which were somewhat glassy or bloodshot. In the context of Stellato, in my view, the nature and quality of this evidence of impairment is so frail as to leave me with a reasonable doubt as to impairment. Therefore, the accused is not guilty of the charge under s. 253(a) of the Criminal Code.

The accused was charged with operating a motor vehicle while his ability to do so was impaired and while over .08 (breath sample readings were 160 and 150 mg) contrary to s. 253(a) and s.253(b) of the Criminal Code, respectively. Issues arising during the trial included whether there was a breach of his s.8 and s.9 Charter rights to be secure against unreasonable search or seizure, and not to be arbitrarily detained; if there was a breach, was there a remedy under s.24(2); whether the evidence was sufficient to prove the offence of impaired driving beyond a reasonable doubt. The police officer concluded that he had reasonable and probable grounds for the breath demand based upon the accused sleeping through two green traffic lights, a strong smell of alcohol, and his somewhat bloodshot or glassy eyes. HELD: The accused was acquitted of both charges. 1)The evidence was sufficient to establish breaches of s.8 and s.9 of the Charter. The Certificate of Analysis constituted conscriptive evidence which, on balance, would not have been discovered by alternative means. Its admission into evidence might render the trial unfair and bring the administration of justice into disrepute. In the absence of the Certificate of Analysis, the evidence was not sufficient to prove the offence under s.253(b) beyond a reasonable doubt. 2)The strong smell of alcohol and somewhat bloodshot or glassy eyes were not sufficient to conclude there were reasonable and probable grounds for the demand. The court is required to examine the evidence as a whole. Every case will depend a great deal on its individual circumstances. It was not reasonable for the officer to assume that the vehicle not moving at the lights was a reliable indicator of impairment for these purposes. The evidence of slurred speech was not reliable as there was nothing in the officer's notes regarding slurred speech, nor had it been included in the investigation documents. The accused did not have any problems with balance or manner of walk, was cooperative throughout, and did not have any difficulty understanding his rights and the breath demand read to him from a printed card. The officer did not ask the accused whether he had been drinking. 3)The nature and quality of the evidence of a strong smell of alcohol, and eyes which were somewhat glassy or bloodshot, in the context of Stellato, was so frail as to leave a reasonable doubt as to impairment. The 'classic' signs of impairment (erratic driving, strong odour of alcoholic beverage, glassy and bloodshot eyes, slurred speech and unsteadiness on one's feet) was not intended to be an all-encompassing list, and its application will very much depend on the circumstances of a given case.

9_2001canlii390.txt

nan THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2008 SKCA 94 Date: 20080721 Between: Docket: 1534 Todd Allan Gaspers and Lori Lynn Gaspers Coram: Gerwing, Smith and Hunter JJ.A. Counsel: Gregory G. Walen, Q.C. for the Appellant Deryk J. Kendall for the Respondent Appeal: From: 2007 SKQB 353 (CanLII) Heard: April 15, 2008 Disposition: Appeal dismissed Written Reasons: July 21, 2008 By: The Honourable Madam Justice Hunter In Concurrence: The Honourable Madam Justice Gerwing In Dissent: The Honourable Madam Justice Smith Hunter J.A. [1] have read the reasons for judgment of Madam Justice Smith allowing this appeal and setting aside the order of the Chambers judge on the basis that he acted without any evidence that certain activities of the children were extraordinary expenses within the meaning of the Federal Child Support Guidelines[1] (“the Guidelines”) and that he failed to consider and apply the definition of “special and extraordinary expenses” in s. 7(1.1) of the Guidelines. With respect, am unable to agree. see no basis for setting aside the decision of Justice Maher, who on variation application ordered the appellant (father) to pay his proportionate share of six of eleven extracurricular activities which the children were registered in and participated in at the time the application was made. The background information is set out in the reasons of Justices Smith and Maher. [2] In the respondent’s variation application, she requested an increase in the basic child support payment, including retroactive child support, and determination of the eligible expenses and proportionate share of s. expenses that each party should pay. Concurrently, the appellant applied for specified changes in the parenting arrangement. [3] On the evidence before him, the Chambers judge was satisfied the increase in income of the appellant, since the date of the consent order, constituted material change of circumstance. He concluded the appellant’s income was $147,000 and the respondent’s income was $53,744.68. Maher J. ordered the appellant to pay basic Guidelines child support of $2,532 per month. He calculated the appellant’s proportionate share and then ordered the appellant to pay 73% of the net day care costs and six specific extracurricular activity costs pursuant to s. of the Guidelines. [4] The only issue on this appeal is the order that the appellant pay 73% of Ashley’s Tae Kwon Do and soccer costs, Mitchell’s outdoor and indoor soccer costs and Makayla’s voice and soccer costs. [5] The appellant argues these expenses are ordinary and are not extraordinary within the meaning of s. 7(1)(d) and (f) and s. 7(1.1) of the Guidelines. [6] The respondent contends this Court should not interfere with the exercise of discretion by the Chambers judge and the result of the order which is that five of the extracurricular activities were found to be ordinary and six of the extracurricular activities were found to be extraordinary. The registration fees and lessons cost approximately $2000 to $2600 per year, exclusive of any transportation and incidental costs related to the activities. [7] agree with Smith J.A. that the appropriate standard of review which governs this Court is that decisions by Chambers judge in relation to child support orders are to be accorded significant deference. (Hickey v. Hickey[2] and Myketiak v. Myketiak.[3]) [8] Support orders involve the exercise of discretion by Chambers judge and the decision in each case is fact specific. In the ordinary course, family law Chambers judges would make numerous child support orders every week based on affidavit evidence, including interim and final orders, pursuant to initial or variation applications. In most cases, the issues in dispute between the parties concern ascertaining the income of the parties for the purposes of the basic Guidelines support order and the identification of the s. expenses which may be subject to an order for proportionate cost sharing. The issue of defining extraordinary expenses within the meaning of s. 7(1)(d) and (f) of the Guidelines is the common, routine, usual and everyday function of family law Chambers judges and is based on the evidence filed in support of the application. For this reason, the Chambers judge’s decision is entitled to significant deference. As stated in Myketiak at para. 21, quoting from the decision of the Supreme Court of Canada in Hickey: “… Though an appeal court must intervene when there is material error, serious misapprehension of the evidence, or an error in law, it is not entitled to overturn support order simply because it would have made different decision or balanced the factors differently.” [9] In s. 7(1) of the Guidelines, the expenses are listed that may be included in child support order, including extraordinary expenses in s. 7(1) (d) and (f). It provides that an order may cover “all or any portion” of the listed expenses. The factors to be considered in making such an order are the necessity of the expense with regard to or in relation to: 7. (1) 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. [10] Further, the amendment in s. 7(1.1) clarifies the meaning of “extraordinary” for the purposes of s. 7(1)(d) and (f). In s. 7(1.1)(a), extraordinary means those expenses that exceed the amount that can reasonably be covered by the income (including the basic monthly support ordered in accordance with the Guidelines) of the recipient spouse. Use of the word “reasonably” indicates the discretionary nature of this determination. [11] If s. 7(1.1)(a) does not apply, the factors the court must consider in determining whether the expense is extraordinary are listed in s. 7(1.1)(b). Those factors are the expenses of the activities in relation to the total income of the recipient spouse, the nature and number of activities, the special needs or talents of the child(ren), the overall cost of the activities and “any other similar factor that the court considers relevant”.[4] In my view, these factors indicate the significant discretion reposed in the court of first instance to determine what is or is not an extraordinary expense based on the evidence before the court. An important consideration is the total income of the spouse in receipt of child support but there is no formula and the court must have regard to the evidence before it concludes whether all, some, or none of the expenses in s. 7(1)(d) and/or (f) are extraordinary. [12] To enable the court to exercise its discretion, the parties file information about their respective incomes, financial statements indicating their annual expenses, the participation and needs and information about the children with respect to the extracurricular activities, together with the approximate costs of the activities and the other expenses enumerated in s. 7(1). In accordance with s. 7(1), the costs may be estimated. This allows the court to make general order with respect to the proportionate share of the expenses the court concludes comes within the enumerated list of expenses in s. 7(1), to be paid by payor spouse. [13] In his affidavit, the appellant provided the following information and his position with respect to the extracurricular activities of the children: 7. At the time of negotiating and agreeing to the Child Support Order, Ashley was involved in horseback riding lessons and soccer, Mitchell was involved in Can-Skate and Soccer, and Makayla was involved in Can-Skate and voice lessons. 8. Initially the Petitioner wanted me to contribute proportionate share towards the children’s activity costs. Given the high amount of base child support disagreed that these were extra-ordinary expenses, 9. The Petitioner then abandoned her claim for the sharing of extra-curricular activities and accordingly there was nothing included in the Child Support Order. 10. The children’s activities have slightly changed. Ashley is involved in Tae Kwan Do and soccer, Mitchell is involved in soccer and Makayla is involved in voice lessons and soccer. The costs are similar to those costs negotiated in the Child Support Order. 16. am prepared to agree to an annual Guideline income of $147,000.00 in order to calculate the support payable for the months of August through December 2007. This would require Table support payment by me to the Petitioner in the amount of $2,532.00 and propose that this begin on September 15th, 2007, being the first month will receive my new rate of pay 17. continue to oppose any claim for retroactive child support and Section expenses, other than the Petitioner’s net of tax monthly daycare expenses incurred for work reasons. [14] In her affidavit, the respondent provided the following information and her position with respect to the extracurricular activities of the children: 8. That am also requesting that the Respondent pay his proportional share of orthodontic expenses, optical expenses, and extraordinary expenses for certain activities the children participate in. 9. That our daughter Ashley completed Grade and participates in Tae kwon Do, outdoor soccer, piano lessons and swimming lessons. 10. That our son Mitchell will attend Grade in the fall of 2007 and is involved in outdoor soccer, swimming lessons, piano lessons, and indoor soccer. He is very athletic and wishes to pursue certain other athletic activities. 11. Our daughter Makayla is very involved in soccer, as she plays year round, as well as swimming and music lessons. She is very active six year old and will be attending Grade in the fall of 2007. am requesting the respondent pay his proportionate share of certain extracurricular activities she participates in. 13. That have attached copy of numerous receipts that have paid for expenses for the children’s activities over the past ten months. 14. That make this Affidavit in support of my Application for updated child support; and updated proportional share of the children’s S.7 expenses. [15] All the information needed to determine the s. 7(1)(f) expenses eligible for proportionate sharing was before the Chambers judge. Maher J. knew the total income of the recipient spouse. He knew the previous extracurricular activities and the 11 current extracurricular activities which the children participated in with the estimated annual cost of approximately $2000 to $2600. Updated financial statements were filed by both the appellant and respondent. Together with the information submitted by the parties about the children and the extracurricular activities, the Chambers judge exercised his discretion and granted an order requiring the appellant to pay his proportionate share (73%) of the extracurricular activities he listed, which is approximately one-half of the children’s extracurricular activities. [16] The Chambers judge did not specifically say that he considered these to be extraordinary within the meaning of s. 7(1)(f) and s. 7(1.1) of the Guidelines. However, in the opening portion of his judgment, he identified one of the issues before him as: 4) determination of the proportionate share of s.7 expenses that each party should be required to pay, plus determination of eligible s.7 expenses. [17] In my view it is implicit in his conclusion that he found that approximately one-half (i.e., six) of the extracurricular activities were “extraordinary” within the meaning of s. 7(1)(f) and s. 7(1.1) of the Guidelines. Therefore, it follows that the Chambers judge, although he did not specifically articulate it, must have found one-half (i.e., five) of the children’s extracurricular activities were ordinary, which means the respondent is expected to pay the cost of the ordinary activities out of her income, including the child support of $2,532.00 that she receives monthly. [18] The Chambers judge had the necessary evidence before him that he is required to consider to make his decision whether all, some, or none of the expenses are extraordinary within the meaning of s. 7(1)(f) and s. 7(1.1) of the Guidelines. Accordingly, he did not make a palpable and overriding error, nor did he err in law and his conclusion is supported by the evidence before him on this application. There is no basis to interfere with the decision of the Chambers judge. Accordingly, I would dismiss the appeal with costs of the appeal to the respondent. DATED at the City of Regina, in the Province of Saskatchewan, this 21st day of July, A.D. 2008. “Hunter J.A.” HUNTER J.A. concur “Gerwing J.A.” GERWING J.A. Smith J.A. (in dissent) [19] This appeal is brought on a narrow ground from a judgment in the Court of Queen’s Bench granting variation of a child support order pursuant to s. 17(1) of the Divorce Act, R.S.C. 1985, c. 3 (2nd supp.). The appeal challenges the chambers judge’s interpretation and application of s. 7 (1.1) of the Federal Child Support Guidelines, SOR/97-175, which defines the term “extraordinary expenses”. [20] By way of background, the parties are parents of three children, daughter, Ashley born November 30, 1996, son, Mitchell, born April 25, 1999 and daughter, Makayla, born September 14, 2000. They separated in December of 2003. In January of 2004 they executed an interspousal agreement with terms relating to matters of custody, access, child support, spousal support, and division of the family property. In January 2006, the parties reconsidered the parenting plan and child support payable with respect to the children. These discussions ultimately resulted in consent judgment for divorce and consent child support order, both granted by Smith J. on August 31, 2006. The children were to be in the primary care of the respondent. The 2006 child support order established the appellant’s income at $75,683 and the respondent’s income at $55,100. The appellant was to pay child support in the amount of $1,376 monthly commencing May 15, 2006. The parties agreed that the appellant would pay 50% of the respondent’s after tax work related day care costs, but that the respondent would be responsible for all of the children’s extracurricular activities. [21] By notice of motion dated July 4, 2007, the respondent sought to vary the support order retroactive to May, 2006, including variation of the proportional share of the s. expenses, including day care, orthodontics, optometric, and children’s extraordinary activity costs on the basis of claim that the appellant’s total income for 2006 was $98,663. [22] variation order was granted by fiat dated October 2, 2007. The chambers judge held that there had been material change of circumstances based upon finding that the appellant had commenced new job in August, 2007, with gross employment income is $158,520 and prospective employment expenses of $11,500. He found his income for the purpose of ongoing child support to be $147,000, with proviso that the employment expenses be verified in his 2007 income tax return. Ongoing child support for the three children was fixed at $2,532 per month commencing September 1, 2007. In addition, retroactive order to January 1, 2007, was made based upon finding that his income at that time was $87,267. The claim for an order retroactive to May 1, 2006 was dismissed. None of this is under appeal. [23] In addition, the chambers judge found the respondent’s income to be $53,744.68, and therefore determined that the appellant’s liability was for 73% of all eligible s. expenses, commencing August 1, 2007. Again, there is no appeal of this determination, which the appellant concedes covers optometric, orthodontic and day care expenses. [24] However, the chambers judge also addressed the question of the children’s extracurricular activities in this one line in his judgment: He shall also pay his share of Ashley’s Tae Kwan Do and soccer costs, Mitchell’s soccer, and Makayla’s voice and soccer. (Fiat, at para. 17) [25] The appellant appeals only this aspect of the fiat, arguing that the chambers judge erred in ordering the appellant to contribute proportionately to the costs associated with the children’s extracurricular activities without finding that these were “extraordinary expenses” within the meaning of the Guidelines. It is the appellant’s position that these expenses cannot reasonably be considered “extraordinary” in the statutory sense, and that they are covered by the basic child support order of $2,532 per month, which, of course, comes to $30,384 per year, which the respondent receives tax free. This is in addition to the appellant’s responsibility for 73% of the children’s health care and day care expenses. [26] There is no question but that significant deference must be given by this Court to the chambers judge in relation to child support orders. This is particularly so to the extent that such orders involve the exercise of discretion. See Hickey v. Hickey, 1999 CanLII 691 (SCC), [1999] S.C.R. 518 and Myketiak v. Myketiak, 2001 SKCA 17 (CanLII), 203 Sask.R. 90, where this Court commented: [21] In Hickey v. Hickey, 1999 CanLII 691 (SCC), [1999] S.C.R. 518 the Supreme Court made it clear 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. Madam Justice L'Heureux-Dubé speaking for the Court at p. 526, para. 12 stated: There are strong reasons for the significant deference that must be given to trial judges in relation to support orders. This standard of appellate review recognizes that the discretion involved in making support order is best exercised by the judge who has heard the parties directly. It avoids giving parties an incentive to appeal judgments and incur added expenses in the hope that the appeal court will have different appreciation of the relevant factors and evidence. This approach promotes finality in family law litigation and recognizes the importance of the appreciation of the facts by the trial judge. Though an appeal court must intervene when there is material error, serious misapprehension of the evidence, or an error in law, it is not entitled to overturn support order simply because it would have made different decision or balanced the factors differently. [27] It is my respectful view that in this case the trial judge erred in law in failing to consider and apply the definition of “special or extraordinary expenses” in s. 7(1.1) of the Guidelines. [28] It is useful to reproduce all of s. 7(1) and (1.1) of the Guidelines: 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. [29] Subsection 7(1.1) was added by amendment to the Guidelines in May, 2006. It followed some dispute in the case law as to whether and to what extent the cost of children’s extracurricular activities should generally be seen as covered in the table amount the payor parent is required to pay by way of child support, or, alternatively, as s. responsibility, like medical expenses and day care expenses, over and above payment of the table amount. This Court had taken position in that debate in Ryba v. Schoenroth (1999), 1999 CanLII 12258 (SK CA), 180 Sask. R. 121 (C.A.), where the Court overruled an order that the payor father pay $230 per month in respect of extraordinary expenses for extracurricular activities of two children in addition to the table amount of $1,318. The Court held that the chambers judge erred, on variation application sparked by the coming into effect of the Guidelines, in failing to address the question of whether the expenses were extraordinary within the meaning of s. 7(1)(f), or, whether, given the standard of living that these children were accustomed to, and given their parents’ income, they were ordinary expenses and thus included in the table amount fixed by s. 3(1)(a) of the Guidelines. Sherstobitoff J.A. concluded: [7] The expenses in question related to activities such as swimming, hockey, soccer, gymnastics, snowboarding and music. Absent any evidence to the contrary, it seems to us that the activities were ordinary activities and the expenses were of an ordinary rather than an extraordinary nature, given the income of these children’s parents. Accordingly, the judge erred in requiring the appellant to pay portion of them under s. 7(1)(f) in addition to the table amount fixed under s. 3(1)(a). [30] In my view, the 2006 amendment effectively adopted this Court’s view of the matter. It is my view that the instant case falls squarely within the ratio of Ryba. [31] In this case, in respect of extracurricular activities, the respondent had sworn in her affidavit that Ashley participated in Tae Kwon Do, outdoor soccer, piano lessons and swimming lessons. Mitchell was said to be involved in outdoor soccer, swimming lessons, piano lessons, and indoor soccer. It was also said that he is very athletic and wishes to pursue other athletic activities. Makayla was said to be very involved in soccer, playing it all year round, as well as swimming and music lessons. She was said to be very active six year old. While her affidavit sworn in support of the application did not mention the costs of these activities, in her sworn financial statement the respondent included an expense item of $5000, without itemizing this figure, but indicating that it covered “lessons, clubs, sports, bicycles.” She did not itemized such expenses in Part of her financial statement, designed to itemize “special or extraordinary” expenses, including extracurricular activities. However, she attached receipts for the children’s swimming lessons ($48.75 each), soccer ($90 in March, 2007 for two children, $180 in March, 2008, for soccer for all three children, plus another activity for Mitchell), $2,289 for total annual cost for music lessons for three children. There was no evidence of the cost for Tae Kwon Do for Ashley. Using only the 2008 costs for soccer (the higher of the two years for which receipts were provided), the itemized activities totaled an annual cost of $2,615.25 for all the children’s extracurricular activities mentioned by the respondent in her affidavit with the exception of Tae Kwon Do. [32] Clearly, by far the most significant (indeed, the only significant) of these costs is the cost of the music lessons. Yet, in his judgment, the chambers judge referred only on the costs of Ashley’s Tae Kwon Do (for which there was no evidence) and soccer ($55 annually); Mitchell’s soccer ($80 annually) and Makayla’s soccer ($45 annually) and voice lessons ($763 annually). There was no finding that these expenses exceeded what the respondent could reasonably cover taking into account her income ($53,744.68, figure that does not include annual after tax child support of $30,384 or the appellant’s contribution to health care and day care costs), nor, in my view, would such finding be reasonable. [33] The respondent argued that the chambers judge ought to be considered to have taken into account the total costs of all the extracurricular activities ($2,615.25), and to have concluded that roughly half of this was “extraordinary” in the statutory sense, and, therefore, in effect, ordered that the respondent pay proportion of half the children’s activities. There are several problems with this interpretation of the judgment. [34] First, it is impossible, without some evidence, explanation or explicit finding, to understand why even the total of all the children’s extracurricular activities ($2,615.25, on the evidence) would be considered “extraordinary” in the statutory sense, given the level of child support ordered and the respondent’s annual income. There was simply no evidence to support such conclusion. Second, the order did not, in fact, come close to ordering that the appellant pay proportion of half the activities, since it excluded the cost of music lessons for the two older children. In addition, it included the cost of Tae Kwon Do for which there was no evidence at all. In short, such an interpretation lacks any rational basis. Third, it is clear that, up until the argument on the appeal, the parties themselves had interpreted the order more generally, as an order that the appellant pay proportion of all the children’s extra-curricular activities. This interpretation certainly makes more sense, for the alternative would require variation in the order, or new agreement, every time the children changed or added activities. It is unlikely that the chambers judge would have confined his order so specifically, absent, of course, an agreement of the parties, or reasonable finding that specific activity constituted an extraordinary expense. In other words, while it is not uncommon for chambers judge to order proportionate sharing of the specific costs of an unusually expensive activity (junior level hockey or competitive dance or music activity for example) for gifted or special needs child of parents of limited means, to specify the proportional sharing of annual soccer fees, where the annual cost is insignificant, or Tae Kwon Do, where it is unknown, does not appear to have any rational basis on the facts of this case, and, more importantly, leaves the parties with no rational basis on which to address the cost of future activities. [35] It is my view that the chambers judge erred in failing to consider the definition of extraordinary expenses in s. 7(1.1), or this Court’s decision in Ryba v. Schoenroth, and acted without any evidence that the expenses in question constituted extraordinary expenses within the meaning of the Guidelines. [36] Accordingly, would allow the appeal and set aside the order of the chambers judge that the appellant pay proportion of the children’s extracurricular activities. The appellant should have the costs of the appeal. DATED at the City of Regina, in the Province of Saskatchewan, this 21st day of July, A.D. 2008. “Smith J.A.” [1] SOR/97-175. [2] 1999 CanLII 691 (SCC), [1999] S.C.R. 518. [3] 2001 SKCA 17 (CanLII), 203 Sask. R. 90. [4] Supra, note 1, s. 7(1.1)(b)(v).

This appeal was brought on a narrow ground from a judgment in the Court of Queen's Bench granting variation of a child support order pursuant to s. 17(1) of the Divorce Act. The appeal challenged the chambers judge's interpretation and application of s. 7(1.1) of the Federal Child Support Guidelines, which defines the term 'extraordinary expenses.' The appellant argued that the chambers judge erred in ordering the appellant to contribute proportionately to the costs associated with the children's extracurricular activities without finding that these were 'extraordinary expenses' within the meaning of the Guidelines. The appellant argued these expenses were ordinary and not extraordinary within the meaning of s. 7(1)(d) and (f) and s. 7(1.1) of the Guidelines. It was the appellant's position that these expenses were covered by the basic child support order which the respondent received tax free, in addition to the appellant's responsibility for 73% of the children's health care and day care expenses. HELD: Appeal dismissed with costs to the respondent. Per Hunter J.A. (Gerwing J.A. concurring): All the information needed to determine the s. 7(1)(f) expenses eligible for proportionate sharing was before the Chambers judge: he knew the total income of the recipient spouse; he knew the previous extracurricular activities and the 11 current extracurricular activities that the children participated in, along with the estimated annual cost. Updated financial statements were filed by both the appellant and respondent. The Chambers judge exercised his discretion and granted an order requiring the appellant to pay his proportionate share (73%) of the extracurricular activities he listed, which is approximately one-half of the children's extracurricular activities. Accordingly, he did not make a palpable and overriding error, nor did he err in law, and his conclusion is supported by the evidence before him on this application. There is no basis to interfere with the decision of the Chambers judge. Per Smith J.A. (in dissent): Significant deference must be given by this Court to the chambers judge in relation to child support orders. This is particularly so to the extent that such orders involve the exercise of discretion. In this case the trial judge erred in law in failing to consider and apply the definition of 'special or extraordinary expenses' in s. 7(1.1) of the Guidelines. First, it is impossible without some evidence, explanation or explicit finding, to understand why even the total of all the children's extracurricular activities would be considered 'extraordinary' in the statutory sense, given the level of child support ordered and the respondent's annual income. There was simply no evidence to support such conclusion. Second, the order did not, in fact, come close to ordering that the appellant pay proportion of half the activities, since it excluded the cost of music lessons for the two older children. In addition, it included the cost of Tae Kwon Do for which there was no evidence at all. In short, such an interpretation lacks any rational basis. Third, it is clear that, up until the argument on the appeal, the parties themselves had interpreted the order more generally, as an order that the appellant pay proportion of all the children's extra-curricular activities. This interpretation certainly makes more sense, for the alternative would require variation in the order, or new agreement, every time the children changed or added activities. It is unlikely that the chambers judge would have confined his order so specifically, absent, of course, an agreement of the parties, or reasonable finding that specific activity constituted an extraordinary expense. The chambers judge erred in failing to consider the definition of extraordinary expenses in s. 7(1.1), or this Court's decision in Ryba v. Schoenroth, and acted without any evidence that the expenses in question constituted extraordinary expenses within the meaning of the Guidelines. Accordingly, the appeal is allowed and the order of the chambers judge that the appellant pay proportion of the children's extracurricular activities is set aside. The appellant should have the costs of the appeal.

e_2008skca94.txt

J. Q.B.M. A.D. 1989 No. 575 J.C.R. IN THE QUEEN'S BENCH (FAMILY LAW DIVISION) JUDICIAL CENTRE OF REGINA BETWEEN: JODI-LIN ROYAL RESPONDENT (APPLICANT) and DAVID WOLBAUM APPLICANT (RESPONDENT) M.L. Senko for respondent (applicant) D. Wolbaum on his own behalf FIAT DOVELL J. March 23, 1998 [1] Denby Elizabeth Royal, presently 10 years of age, isa child of the common law relationship of the parties. [2] After Denby's parents separated they entered into aCustody and Maintenance Agreement on June 22, 1989. [3] On page of the Agreement the parties agreed as 5. Duration of Agreement (a) The parties agree that it is in the best interests of the child that the Father and the child continue to have contact and access with each other and that the Father continue to pay maintenance as set forth herein, regardless of the marriage of the Father or the Mother to, or the adoption of the child by, someone other than the Father or the Mother. [4] Subsequent to entering into this Agreement the relationship between the parties at best can only be described as tumultuous. Jodi-Lin married for short period of time and in August, 1997 she moved to Nelson, British Columbia with Denby. By that time David Wolbaum had not seen his daughter for almost three years. [5] The first time Denby saw her father in over three years was last December. An Order for specified access was made by McIntyre J. to facilitate two access visits while she was in Regina. [6] As the parties could not agree upon ongoing accessthey once again appeared on February 25th, last. The father, who is now representing himself, argued that he should be granted access to his daughter every second weekend, every second Christmas and Easter and two weeks in the summer, all unsupervised. He admitted that as Denby is now living in British Columbia realistically he could probably only exercise any access rights two or three times per year and even at that he may not be able to afford to travel that many times. [7] In my opinion, David Wolbaum's generous and farreaching requests are not reasonable at this time given hislengthy record of non-contact with his daughter. It isimportant that he be reintroduced to his daughter in a gradualand consistent fashion. [8] Accordingly, David Wolbaum shall have access toDenby Elizabeth Royal as follows:1. On March 27, 1998 for a period of three hours andMarch 28, 1998 for a period of four hours or suchother two days in the months of March or April, 1998for the same number of hours at Nelson, BritishColumbia. 2. Two days before the end of June, 1998, such accessto take place at David's parents', Tony and LorraineWolbaum's, farm residence including overnightaccess. It is expected that Denby will be travelling to Saskatchewan before the end of June and accordingly David should be given an opportunity to see his daughter during that time period; 3. Two days in the summer of 1998 at Nelson, BritishColumbia. David is to provide Jodi-Lin with at least thirty days notice of which days he will be exercising his rights of access. The days must be approved by Jodi-Lin and Denby. 4. The weekly telephone access shall continue eachSunday evening and such other times during the weekthat do not interfere with Denby's activities. 5. Access shall once again be reviewed in the fall of1998 at the request of either party upon providingfive days' notice. [9] Copy of this Fiat to be sent to David Wolbaum at: 3015 Assiniboine Avenue, Regina, Saskatchewan. The file is then to be brought to the attention of McIntyre J. for decision on variation of child maintenance application.

FIAT. The parties entered a custody and maintenance agreement with respect to the one child of their common law relatinship in 1989. The mother moved with the daughter to British Columbia in 1997. The parties did not agree upon ongoing access. HELD: The father's generous and far reaching requests were not reasonable at this time given his lengthy non-contact. It was important that he be reintroduced to his 10 year old daughter in a gradual and consistent fashion. He was granted access intitially for three and four hours in both provinces, then two days at the father's parent's home including overnight access and two days in the summer in British Columbia. Weekly telephone access was to continue each Sunday evening. Access was to be reviewed in the fall of 1998.

d_1998canlii13929.txt

J. 2001 SKQB 50 F.L.D. A.D. 2000 No. 143 J.C. W. IN THE QUEEN'S BENCH (FAMILY LAW DIVISION) JUDICIAL CENTRE OF WEYBURN BETWEEN: HOWARD LESLIE MERRILL PICKERING and SANDRA ARLENE MOORE (Formerly known as SANDRA ARLENE PICKERING) RESPONDENT D.G. Bobbitt, Q.C. for Howard Leslie Merrill Pickering N.M. Drew for Sandra Arlene Moore JUDGMENT GUNN J. January 29, 2001 [1] Howard Pickering ("Howard") applies to vary the order of Matheson J. of the Court of Queen's Bench of Alberta by extinguishing his maintenance arrears from January 12, 1993 to the present and for an order eliminating any further obligation to pay maintenance for his children. HISTORY OF THE PROCEEDINGS [2] The parties married November 30, 1974 and divorced October 15, 1992. There were two children of the marriage: Cary Stephen Pickering, born April 9, 1975 and Tyler Scott Pickering, born April 12, 1979. The parties executed separation agreement October 3, 1991 wherein they agreed to joint custody of the children and in the event both children were living with one of the parties that the "non-custodial" parent pay maintenance of $175.00 per month per child to the "custodial" parent. This agreement was confirmed in the judgment of Matheson J. on September 14, 1992. [3] Initially each of the parties had one child in their custody and pursuant to their agreement and the divorce judgment, no maintenance was payable. From and after November 1992, Sandra Moore ("Sandra") had both children living with her and maintenance was then payable by Howard in the sum of $4,200.00 per year. Sandra registered the divorce judgment with the Maintenance Enforcement Office in Alberta in January 1993. [4] Howard says he has experienced depression and unemployment over the past number of years. He declared bankruptcy in July 1994. According to the records provided, Howard's income for the relevant time periods is the following: 1992 $48,000.00 1993 20,265.00 1994 3,952.00 1995 (social assistance) 3,254.00 1996 5,488.00 1997 17,579.00 1998 21,086.00 1999 29,079.54 [5] The payments made during those years reflected in documents from the Maintenance Enforcement Office in Alberta are the following: 1993: 4,368.00 1994: 1,666.84 1995: 392.98 1996: 1997: 213.86 1998: 2,794.87 1999: 4,917.93 2000: 3,152.00 [6] Up to and including August 18, 2000 Howard is in arrears of payment of $13,693.52. [7] Cary graduated from University of Calgary in July of 2000 with degree in Chemistry. He is now pursuing degree in education with an expected graduation date of April 2003. Sandra says he was financially dependent on her during his university years. Tyler is currently attending the Alberta College of Art and Design with an expected completion date of April 2002 and is still financially dependent on Sandra. However, on March 31, 2000 Sandra wrote to the Alberta Maintenance Enforcement Office to advise them that effective that date she was no longer seeking any ongoing maintenance for the children. She did, however, wish to receive the arrears in payments. Both children have significant student loans, and Sandra says she would use any arrears received to help reduce the student loans for her children. [8] At the time of the agreement, Howard earned $48,000.00. By 1993, the first year in which he was required to pay total of $4,200.00 his income was only 42% of his 1992 income. However, he actually paid little in excess of his required payment that year. In 1994, 1995 and 1996 his income had dropped to 8%, 6% and 11% of his 1992 income. In those years he paid 39%, 9% and 0 of his required maintenance. In 1997, Howard's income improved somewhat. He earned 36% of his 1992 income, but paid only $213.00 or 5% of the maintenance owing. In 1998 he earned 43% of his 1992 income and paid 66% of his required support. In 1999 he earned 60% of his 1992 income and paid 117% of his required support. [9] Based on the original order, the arrears are substantial. However, it is clear that the circumstances, and Howard's ability to pay, changed substantially during the term of the order. He would, on the basis of the evidence filed, have been entitled to apply for variation of the order long before this. Sandra does not dispute the income earned or the payments made during the relevant years. [10] In all of the circumstances there will be an order eliminating the arrears of payment from January 12, 1993 to the present. There will also be an order terminating any ongoing obligation for support based on Sandra's representations to the court and her letter to the Alberta Maintenance Enforcement Office.

The father applied to vary the Alberta order by extinguishing his maintenance arrears from January 1993 to the present and for an order eliminating any further obligation to pay child support. The parties married in 1974 and divorced in 1992. They agreed to joint custody of their two children in their 1991 separation agreement. One child was expected to graduate in 2002 and the other in 2003. The father said he suffered depression and was unemployed for several years. HELD: Arrears from 1993 were eliminated. He paid 39, 9 and 0% of the required support in 1994, 1995 and 1996 when his income dropped. He paid 5% in 1997, 66 in 1998 and 117% in 1999. Any ongoing obligation was terminated in view of the mother's letter to the Alberta Maintenance Enforcement Office and her representations to the court that she was no longer seeking support.

d_2001skqb50.txt

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2012 SKCA 52 Date: 20120503 Between: Docket: CACR2117 Her Majesty the Queen and Leo Harris Burns Coram: Gerwing, Ottenbreit Caldwell JJ.A. Counsel: B.L. Klatt, for the Crown Leo Harris Burns, on his own behalf Appeal: From: Provincial Court Heard: May 3, 2012 Disposition: Allowed (Orally) Written Reasons: May 7, 2012 By: The Honourable Mr. Justice Caldwell In Concurrence: The Honourable Madam Justice Gerwing The Honourable Mr. Justice Ottenbreit Caldwell J.A.: [1] The Crown’s appeal from the sentencing judge’s order under s. 490.012(1) of the Criminal Code, which directed Leo Harris Burns to comply with the Sex Offender Information Registration Act (“SOIRA”) for 20 years, is allowed. We unanimously find that the sentencing judge erred in law in his interpretation of s. 490.013(2.1) of the Criminal Code and, in the result, his order must be set aside and replaced with lifetime SOIRA compliance order. [2] Mr. Burns was convicted on each of four charges of sexual assault (s. 271(1) of the Criminal Code). As the Crown proceeded by way of indictment, he was subject to imprisonment for term not exceeding ten years on each conviction. He was sentenced to four concurrent terms of four years and eight months imprisonment (after four months credit for time served on remand) and he received a ten-year firearm prohibition order, a DNA order and a 20-year SOIRA compliance order. [3] SOIRA compliance order is mandatory in these circumstances. Sexual assault is “designated offence” under s. 490.011(a) of the Criminal Code. Where an offender is convicted of designated offence, s. 490.012(1) requires the sentencing judge to order the offender to comply with SOIRA. The duration of SOIRA compliance order is determined by reference to s. 490.013 of the Criminal Code, which provides, in part: (2) Duration of Order. An order made under subsection 490.012(1) or (2) (b) ends 20 years after it was made if the maximum term of imprisonment for the offence is 10 or 14 years; and (2.1) Duration of Order An order made under subsection 490.012(1) applies for life if the person is convicted of, or found not criminally responsible on account of mental disorder for, more than one offence referred to in paragraph (a), (c), (c.1), (d) or (e) of the definition of “designated offence” in subsection 490.011(1). [4] Albeit Mr. Burns had been convicted of more than one “designated offence”, the sentencing judge interpreted s. 490.013(2.1) as not applying in circumstances where sentence is concomitantly pronounced for multiple “designated offence” convictions and the offender’s criminal record discloses no prior convictions for “designated offence”. The judge therefore declined to order Mr. Burns to comply with SOIRA for life (s. 490.013(2.1)) and instead ordered him to comply for 20 years (s. 490.013(2)(b)). [5] We do not agree with the sentencing judge’s interpretation of s. 490.013(2.1). The meaning of the section is plain: offenders who commit multiple designated offences will be subject to lifetime SOIRA compliance order. Nothing in the Criminal Code suggests the lifetime duration of the order rests on the offender being sentenced separately for each offence. [6] In our view the clarity of the section is such that there is no need to resort to other principles of statutory interpretation; however, if it were necessary to do so, the plain meaning interpretation of s. 490.013(2.1), and its application to the facts at hand, is supported by reference to s. 490.012(3). The latter section speaks directly to the circumstances where an offender has been previously convicted of designated offence: (3) Order if previous offence established When court imposes sentence on person for designated offence in connection with which an order may be made under subsection (1) or (2) or renders verdict of not criminally responsible on account of mental disorder for such an offence, it shall, on application of the prosecutor, make an order in Form 52 requiring the person to comply with the Sex Offender Information Registration Act for the applicable period specified in section 490.013 if the prosecutor establishes that (a) the person was, before or after the coming into force of this paragraph, previously convicted of, or found not criminally responsible on account of mental disorder for, an offence referred to in paragraph (a), (c), (c.1), (d) or (e) of the definition “designated offence” in subsection 490.011(1) or in paragraph (a) or (c) of the definition “designated offence” in section 227 of the National Defence Act; [Emphasis added.] [7] Put simply, if Parliament had intended the narrow application of s. 490.013(2.1) rendered by the sentencing judge’s interpretation of it, Parliament would have used the same language in s. 490.013(2.1) as it did in s. 490.012(3). Therefore, in our view, Parliament clearly intended s. 490.013(2.1) to apply more broadly to any offender who commits multiple designated offences regardless of whether the sentences for those offences are imposed separately or all together.

The accused was convicted of four counts of sexual assault contrary to s. 271(1) of the Criminal Code. The Crown had proceeded by indictment and the accused was sentenced to four concurrent terms of 8 years and 8 months imprisonment (after 4 months credit for time served on remand) and he received a 10 year firearm prohibition order, a DNA order and a 20-year Sexual Offender Information Registration Act (SOIRA) compliance order. At issue on appeal was whether the accused should have received a life SOIRA compliance order or a 20-year SOIRA order. HELD: The appeal was allowed. The Court of Appeal interpreted s. 490.013(2.1) as meaning that offenders who commit multiple designated offences would be subject to a lifetime SOIRA compliance order. If Parliament had intended a narrow application of s. 490.013(2.1), it would have used the same language as it did in s. 490.012(3). Parliament clearly intended s. 490.013(2.1) to apply more broadly to any offender who committed multiple designated offences regardless of whether the sentences for those offences are imposed separately or altogether.

d_2012skca52.txt

SUPREME COURT OF NOVA SCOTIA Citation: Gagnon v. Gagnon, 2011 NSSC 486 Date: 20111230 Docket: 1201-064264, SFHD-068425 Registry: Halifax Between: Lori-Ann Marlin Gagnon Applicant/Petitioner v. Robert Ronald Gagnon Respondent LIBRARY HEADING Judge: The Honourable Justice Beryl MacDonald Heard: November 7, 8, and 10, 2011, in Halifax, Nova Scotia Written Decision: December 30, 2011 Keywords: Family Law, Divorce Act, Shared parenting, Federal child support guidelines, Spousal support, Division of matrimonial property Legislation: The Divorce Act, R.S. 1985, c.3 Federal Child Support Guidelines, s. Matrimonial Property Act R.S.N.S. 1989, c. 275, s.13 Summary: Although the parents were in conflict shared parenting was appropriate, with review date, to determine whether the conflict had been minimized. If custody and primary care were granted to the Mother, she would have no reason to develop better relationship with the Father and the likely result would be steady alienation of the children from the Father. Section of the Federal Child Support Guidelines was considered and the set off was appropriate. Almost of the Father’s pension benefits were earned before the parties marriage. That marriage lasted years. Two children were born of the relationship. The Mother worked during most of the marriage and was now 37 years old. She had secure employment, was not financially dependent upon the Father, and was accumulating her own pension. No division was made of the premarital pension benefits. 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: Gagnon v. Gagnon, 2011 NSSC 486 Date: 20111230 Docket: 1201-064264, SFHD-068425 Registry: Halifax Between: Lori-Ann Marlin Gagnon Applicant/Petitioner v. Robert Ronald Gagnon Respondent Judge: The Honourable Justice Beryl MacDonald Heard: November 7, 8, and 10, 2011, in Halifax, Nova Scotia Counsel: Owen Bland, counsel for the Applicant/Petitioner Kim Johnson, counsel for the Respondent By the Court: [1] This is divorce proceeding. am satisfied all jurisdictional requirements of the Divorce Act have been met and there is no possibility of reconciliation. There has been permanent breakdown of this marriage. The parties have lived and they continue to live separate and apart from one another for period in excess of one year from the commencement date of this proceeding. Divorce Judgment will be issued. Background/ Credibility [2] This couple married on December 30, 2000 after very short relationship resulting in pregnancy leading to the birth of their first child. The Father has interpreted this event as “entrapment”. The Mother has fixated on the Father’s relationship with his new partner as “reason” for his abandonment of the “family” although it is apparent the marital relationship was in trouble long before the new partner was on the scene. While these after the fact interpretations of events are irrelevant to the decision must make, they do contribute towards an understanding about the driving influences leading to the conflict between this couple, conflict that must end if they are to achieve what is best for their children who are now 10 and years of age. [3] The Father and Mother separated on November 13, 2009 after relationship that lasted one month short of years. The issues upon which must adjudicate are: the custodial arrangement the parenting plan child support including special expenses division of matrimonial property and debt spousal support retroactive child and spousal support The testimony, both orally and in affidavits, given by the Father and his witnesses differs materially from that given by the Mother and her witnesses. [4] When witnesses have different recollection of events the court must assess the credibility of their statements. adopt the outline for assessing credibility set out in Novak Estate, Re, 2008 NSSC 283 (CanLII), at paragraphs 36 and 37: [36] There are many tools for assessing credibility: a) The ability to consider inconsistencies and weaknesses in the witness's evidence, which includes internal inconsistencies, prior inconsistent statements, inconsistencies between the witness' testimony and the testimony of other witnesses. b) The ability to review independent evidence that confirms or contradicts the witness' testimony. c) The ability to assess whether the witness' testimony is plausible or, as stated by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), 1951 CarswellBC 133, it is "in harmony with the preponderance of probabilities which practical [and] informed person would readily recognize as reasonable in that place and in those conditions", but in doing so am required not to rely on false or frail assumptions about human behavior. d) It is possible to rely upon the demeanor of the witness, including their sincerity and use of language, but it should be done with caution R. v. Mah, 2002 NSCA 99 (CanLII) at paragraphs 70‑75). e) Special consideration must be given to the testimony of witnesses who are parties to proceedings; it is important to consider the motive that witnesses may have to fabricate evidence. R. v. J.H. 2005 CanLII 253 (ON CA), [2005] O.J. No.39 (OCA) at paragraphs 51‑56). [37] There is no principle of law that requires trier of fact to believe or disbelieve witness's testimony in its entirety. On the contrary, trier may believe none, part or all of witness's evidence, and may attach different weight to different parts of witness's evidence. (See R. v. D.R. [1966] S.C.R. 291 at paragraph 93 and R. v. J.H. supra). may never know the truth about what happened. All can do is apply the legal principles developed by our courts to assess “credibility”. The action imbedded in this word is direction to sort out reliable from unreliable information. What information is most persuasive? [5] In this proceeding the Mother makes serious and potentially damaging allegations against the Father. If proven they will impact the decision must make. Credibility findings are therefore necessary at the outset. The allegations are: The Father is abusive and disrespectful of her. She is the person who made all the decisions involving the children The Father does not care about the children’s health, dental requirements, education, or need for counseling. He will willingly place them in dangerous situations. Any suggestion by him to the contrary is just pretense for the purpose of this hearing. The Father was never involved with the children’s daily lives. The Father was and is regular user and abuser of marijuana and alcohol. The Father has physically abused the children and they are afraid of him. [6] do not intend to recite in detail the contradictory information provided by each of these parties. have carefully read the affidavits each has presented and the other documents filed. have listened to oral testimony. I have decided that the information provided by the Father and his witnesses, is credible. The information provided by the Mother and her witnesses in respect to the serious and damaging allegations she has made is not. My reasons for this finding are: The absence of any of these allegations in the affidavit filed and information provided for the interim hearing. The request for parenting plan that, while providing custody to the Mother, contains significant access between the Father and the children. The absence of any filed complaint to police forces or to the Minister of Community Services. The exaggeration in their statements. The inability to remember background for significant events so the event could be understood in light of what happened before and after the event. The failure to accept any reasonable explanations for the children’s minor injuries. The failure to accept any personal responsibility for the children’s misbehavior, homework lapses, and the conflict between the parties. The unjustified self-aggrandizement of their character and parenting ability. [7] The Father admits he has not always been as respectful of the Mother as he should have been. He has tried, at least for the last year, to be respectful and his e-mail messages for the most part confirm this. He denies being abusive and he denies that his tone and conversation over the telephone is as has been alleged by the Mother. [8] The Father is prepared to acknowledge the Mother’s involvement in parenting. In his affidavit filed March 17, 2010 the Father states (the Mother) usually arranged doctor’s appointments and dealt more with the dentist. am the Francophone parent, so was more involved with homework, although (the Mother) was as well. [9] The Father admits he was casual user of marijuana but after very serious accident in 2008, he reevaluated his life and resolved to make changes. He has not used marijuana since then. [10] The Father loves his children and he and his present partner have nurturing and comfortable relationship with them. Custodial Arrangement/ Parenting Plan [11] The Father requests joint custody of the children in a week about shared parenting arrangement. He acknowledges his role in fueling the conflict that has existed but he has been trying diligently to avoid conflict. He wants to engage in the joint decision making process and he is willing to abide by an arrangement that will achieve this result. If the conflict did not exist would have no hesitation in granting his request. [12] In reaching decision about the custodial and parenting arrangements for these children am directed to make decision consider to be in their best interest. [13] There are no presumptions to apply when determining with whom children should be living under what arrangement. There is no presumption that parents should have joint custody, custody, or shared parenting. There are only various directives. The Divorce Act directs that we are to foster maximum contact between the children and each parent. Of course, it also directs that decisions are to be made in the children’s best interests. Several cases provide guidance about factors to consider when assessing best interest, Foley v. Foley (1993), 1993 CanLII 3400 (NS SC), 124 N.S.R. (2d) 198 (N.S.S.C.); Abdo v. Abdo (1993), 1993 CanLII 3124 (NS CA), 126 N.S.R. (2d) (N.S.C.A.); and particularly useful is the comment in Dixon v. Hinsley (2001), 2001 CanLII 38986 (ON CJ), 22 R.F.L. (5th) 55 (Ont. C.J.): 46 “The best interests” of the child is regarded as an all embracing concept. It encompasses the physical, emotional, intellectual and moral well-being of the child. The court must look not only at the child’s day to day needs but also to his or her longer term growth and development. What is in the child’s best interests must be examined from the perspective of the child’s needs with an examination of the ability and willingness of each parent to meet those needs. [14] Each parent’s plan for the child must be examined, not in respect to what the parent wants or needs, and parents have many wants and needs in relation to their child, but in respect to what the child needs to become an independent, healthy, educated, and socially able human being. [15] The Mother requests custody of these children. She asserts she is the primary care parent and the conflict between she and the Father prevents consideration of joint custodial, shared parenting arrangement. [16] review of many of the decisions about children’s best interests reveals preference to continue children in the care of the person who is determined to be their “primary care” parent. However, because the primary care parent in relationship was frequently the female partner, this analysis has come under attack particularly from Fathers. The division of labour within family often evolves to place the female partner in the role of primary care parent. It is easier to have one person attending to many of the day to day parenting functions, keeping track of schedules, and arranging for time off from work to take children to appointments. These are functions the other parent can learn to preform and often did preform during the marriage when the “primary care” parent was unavailable. In addition detailed analysis of the “modern” family with two working parents often reveals that neither parent can be classified as the “primary care” parent because both were actively involved although not necessarily equally every day. [17] Conflict between parents does not necessarily mean they cannot be awarded joint custody and shared parenting. That arrangement may be appropriate if there is sufficient indication of their ability to place the needs of the child before personal needs and to cooperate on issues of vital importance to the child. The role of the court is not to determine which parent is better but to decide which plan for the child’s care will best meet the child’s developmental, educational, health and social needs. (Gillis v. Gillis (1995) Carswell N.S. 517 (N.S.S.C.)) [18] The Mother and her present partner have become so dismissive and disdainful of the Father it is difficult to envision an end to the conflict between them. In previous decisions have not been prepared to place children in shared parenting arrangement if there was no indication the parents would likely overcome the conflict that had arisen between them. In this case am fearful that anything other than shared parenting arrangement will work against the children’s best interest. [19] While the children have frequently been parented by the Father it would represent considerable change for them if he became the custodial parent and the children were primarily in his day to day care. In recognition of this he has not asked for this change. In addition, am convinced that custody to the Mother, with the children primarily in her day to day care, will likely result in the steady alienation of the children from their Father. If the Mother is given custody she will have achieved the control she sought in this proceeding. She will have absolutely no reason to forge better relationship with the Father for the benefit of the children. This is one of those rare situations when will use the mechanism of review order to determine whether the Mother can work co-operatively with the Father in shared parenting arrangement with detailed parenting plan that, hopefully, will have considered and provided for as many “potential irritants” as possible. In coming to my decision have been informed by an article written by Marie L. Gordon Q.C. The Review Provisions In Custody and Access Orders” Family Law Quarterly, Vol. 27 No. 3. and by the observations of Norris Weisman in an article entitled, On Access After Parental Separation, 36 R.F.L. (3d) 35 at pages 56 and 59 where he explains: ...the adversarial nature of litigious proceedings can shift the focus of the hearing away from the children and their needs towards an emphasis on the marital sins of the parents; revive and escalate the conflict between the parents; harden their positions; and tempt them to exert pressure upon the child to choose one parent over the other...the litigation itself is often motivated by need for public vindication, to ward off depression, or salvage shattered self-esteem. These parents enter into litigation to prove that the other spouse has behaved badly or is wrong, and, by contrast, that they themselves are good and right. Once this litigation has ended the parties, and particularly the Mother, will have an opportunity to put the past behind them and develop less adversarial relationship for the sake of their children. [20] The Father has improved, over time, the way he communicates with the Mother. His communication is more respectful and responsive. This is not the case with the Mother. Her e-mail continues to contain unresponsive and insulting content. Her approach towards accommodation is rigid tit for tat discussion that is frustrating and unnecessarily time consuming. The Mother has failed to accept that the Father wants to parent the children because he enjoys their company, because he has much to offer them as parent, because he wants to participate in their upbringing and development, because he has the ability and capacity to do so, and because he loves them. She asserts the only reason he is involved is to avoid paying child support. do not accept her conclusion. If her attitude toward the Father, and her interaction with him does not improve, will consider placing the children in the primary care of the Father at future review. This must not be taken by the Father as an excuse for deterioration in his communication and behaviour. will be alert to any conflict causation that may be attributed to him. [21] The children are to be in the joint custody of the Father and the Mother. This means that both parents are to share equal responsibility and authority in making major decisions except for some decisions for which have decided his or her decision making authority will be final. Decisions about the children’s education are to be made by the Father because, as the Francophone parent, his insight into the children’s educational need is required and am not confident the Mother will be as interested in the development of their proficiency in the French language as he will be. Also there has been disagreement about whether tutor is required. The Mother has engaged tutor and is seeking proportional sharing of this expense. The Father expects that any additional assistance the children need can be provided by their school and with his assistance. The Mother suggests the Father does not have the capacity to assist the children with their homework. reject that suggestion entirely. [22] Final decisions about the children’s regular health and dental care shall be in the Mother’s authority. She has arranged for most appointments in the past and is to continue to do so keeping the Father informed so he may choose to attend these appointments. [23] The Mother has not considered the economics of the choice of after school care for the children. Given that the Father will be paying the proportionally greater share of this expense, and given my expectation he will not place the children in an inadequate care situation, he will have final say on the choice of before and after school care. [24] am not convinced the children need counseling because of anything their Father has done. They may have needed counseling to help them adjust to the separation, or to cope with the conflict created by their parents. will not order counseling for the children. leave it to these parents to seek out that service if the children’s behaviours, as confirmed by objective third parties, such as teachers, suggest need for specific purpose counseling. [25] These parents do need some form of counseling to improve their communication. have made provision for this in the parenting plan. [26] The children’s day to day care will be in shared parenting arrangement under the terms of detailed parenting plan That plan is attached as Schedule “A” and is to appear in the order to be prepared by the Father’s counsel. remind counsel that it is counsel’s responsibility to provide an order to this court. This remains so (in cases where there can be no legitimate objection to the wording) even if the client refuses to approve the order or “fires” counsel. The duty to prepare an order is owed to the court and other counsel as well as to the client. (Chrysler Credit Canada Ltd. v. 734925 Ontario Ltd., 1991 CanLII 7311 (ON SC), O.R. (3d) 65 affirmed in Folkes v. Greensleeves Publishing Ltd., 2002 CanLII 44917 (ON CA), 159 O.A.C. 99 (Ont. C.A.)). [27] The parents are to obtain a date on my docket for a return to this court eight months from the date of this decision for a review to determine whether the conflict between the parties has ceased, or at least been substantially reduced, and whether, as a result of that analysis, any change is required to the terms of the order. Child Support [28] The Father’s total annual income is known for 2010. It was $73,698.00. Because of reductions in the taxable benefits he will receive it is expected his total annual income for 2011 will be $69,288.00. It is unknown what his exact 2012 annual income will be. He may have further decrease in taxable benefits. For the purpose of child support accept his annual income for 2011 and his estimated income for 2012 to be $69,288.00. have been asked to use the previous year to determine income for the child support calculations. This request was made by the Father who has the most to loose if calculated income in this manner because his 2010 income was definitely higher than his 2011 income. review of court decisions about the calculation of income provides the following guidance: court should determine parent’s Guideline income for the upcoming 12 months after the decision to pay is to be made. court may assume that parent will earn the same or similar amount in upcoming year as he or she did in the previous year unless there is clear evidence to the contrary. court may extrapolate upcoming yearly income from payor’s year to date income when there is clear evidence that the prior year’s income is not an indication of what upcoming income will be. [29] In this case know there have been significant changes in income and there may be future changes. am asked to consider ongoing and retroactive child support. The income figure use will also impact spousal support. am not satisfied that using income from previous year to calculate child support for current year is appropriate in the midst of such change. will use the actual annual income for 2010 and extrapolate for 2011 and 2012. will do the same in respect to the Mother’s income. As result the incomes are as follows: [30] will first determine the ongoing table guideline child support. Because these children are in shared parenting arrangement must consider the provisions of Section of the Federal Child Support Guidelines as interpreted by the Supreme Court of Canada in Contino v. Leonelli-Contino, 2005 SCC 63 (CanLII). Under Section 9, there is no presumption in favour of reducing parent’s child support obligation downward from the Guidelines amount. It is possible that, after careful review of all of the factors in Section 9, court will come to the conclusion the full table guideline amount is the proper amount of child support. [31] Section 9(a) requires court to take the financial situation of both parents into account, but the provision does not include conclusive formula to determine how the table amounts are to be considered or accounted for. The simple set-off amount is the preferable starting point for the Section analysis, but it must be followed by an examination of the continuing ability of the recipient parent to meet the needs of the child, especially in light of the fact that many costs are fixed. Where both parents are making effective contributions, it may be necessary to verify how each parent’s actual contribution compares to the table amount that is provided for each of them. This may assist in deciding whether the adjustments to be made to the set-off amount are based on the actual sharing of child-related expenses. The court retains the discretion to modify the set-off amount where, considering the financial realities of the parents, it would lead to significant variation in the standard of living experienced by the children as they move from one household to the other. [32] Neither parent provided me with information about the expected costs associated with caring for the children in his or her household under an alternating week shared parenting arrangement. Each provided Statement of Expenses but these relate to combined household and personal expenses for the parent and the children. Both parents are living in homes owned by their present partners. Both parents contribute differently to the common living expenses in those households. Neither has surplus in his and her budget. Deficits are shown that are clearly not sustainable and suggest that the amounts used in the Statements of Expenses must either be wrong or represent, not actual expenses, but proposed expenditures. [33] The Mother’s expense statement has significant deficit but, because she has declared bankruptcy, she shows no debt payment, not even to the trustee in bankruptcy. It is not possible to have a deficit without disclosing debt instruments used to support debt accumulation. The only conclusion can reach is that many of the expenditures listed are not accurate or that the Mother’s present partner is providing greater financial assistance than may initially be assumed. was not informed that her partner in fact makes up for the deficit expenditures described in her current Statement of Expenses. [34] The Father does show debt payment to the Trustee in Bankruptcy and monthly credit card payment of $100.00. However, his monthly deficit is $1,256.00, clearly unsustainable if in fact incurred. [35] The residences provided for the children by each parent are adequate. There are no significant differences between them. The Mother is seeking the full Table Guideline amount. The Father is seeking the set off amount. Although the Father has twice the total annual income of the Mother, she has not convinced me that the set- off amount is inappropriate given the children’s needs when living in her household. The Father shall pay the Mother the set -off amount which is $502.00 per month. This payment will commence January 1, 2012. When calculated this set -off also considered the new child support table that is to come into effect January 1, 2012. [36] The Mother is seeking contribution from the Father for child care and Taekwondo expenses. The facility in which the children are enrolled provides child care and Taekwondo training. The Father considers this facility too expensive for what is provided. Because have given the Father final decision authority in respect to child care the cost may change from the amounts shown in the Mother’s Statement of Special and Extraordinary Expenses. [37] Section of the Child Support Guidelines has wording that must be given meaning by decision makers. Several of those words appear in the opening paragraph; have underlined them. (1) In chid support order the court may, ...provide for an amount to cover ...the following expenses... 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... Another word requiring interpretation is: 7(1)(f) extraordinary expenses for extracurricular activities. [38] There appears to be little controversy in decisions across Canada that the following are, except in very unusual cases, necessities: child care medical and dental insurance premiums post-secondary education physiotherapy, occupational therapy, speech therapy, hearing aids, and glasses Controversy can develop about the other expenses listed in Section 7. In particular controversy can develop in respect to the “necessity” for child to be engaged in extracurricular activities. Necessity is to be defined in the “child’s best interest”. No doubt there may be universal agreement that engaging in extracurricular activities is in child’s best interest. The devil, as they say, is in the details. It may not be in child’s best interest to be engaged in extracurricular activities in situations where the child is living parent’s dream not of the child’s own choosing (to be hockey star, for example). It may be in child’s best interest to spend time with parent rather than be enrolled in an extracurricular activity. With older children what the family provided for in the past may be an indicator of what is in child’s best interest in the future but for young children there will be no pattern of enrollment in these activities to use as guide. As is the case with all “best interest” decisions, everything will be determined based upon the information provided about the child, his or her character, interests, strengths, weaknesses, challenges, and previous and present involvement in extracurricular activities; and about the family, how decisions about these activities were made in the past and presently, the support each parent provided and will provide to permit and encourage the child’s participation, and whether the activities may impede child’s opportunity to develop relationship with parent. [39] Once an expense is determined to be “necessity” the next question is whether the cost of the activity is reasonable taking into account the financial means of the parents and the pre-separation spending on these expenses, if any. [40] The expense of an extracurricular activity, even if necessary and the cost is reasonable, is not shareable unless the expense is “extraordinary”. An amendment was made to the Child Support Guidelines to clarify what an “extraordinary” expense may be. First of all Section 7(1.1)(a) indicates an expense is “extraordinary” when it exceeds what the parent, who seeks sharing of the expense, can reasonably pay taking into account that parent’s income and the amount of child support he or she will receive. If the parent can’t “reasonably pay” the expense, it is extraordinary and the court may order the other parent to contribute. However, if it is determined that parent can pay the expense claimed it may still be an “extraordinary” expense. Section (1.1)(b) indicates that an expense parent can reasonably pay may still be an “extraordinary expense” after consideration of number of factors. Those are, once again, the relationship of the expense to the requesting parent’s income including the amount of child support he or she will receive, the nature and number of the extracurricular activities in which the children participate, the children’s special needs or talents, the overall cost of the programs and activities and any other similar factors considered relevant. [41] Child care is necessity in this case. The reasonableness of the previous child care expense was contested and have decided it was not reasonable taking into account the parties’ financial means and their pre-separation expenditure on child care. However, child care will be required and the child care provider will be determined by the Father. Once the cost is known it is to be shared in proportion to the parents’ incomes. Each is to pay his and her portion directly to the child care provider and obtain receipt for what has been paid so it may be used to claim credit on his and her income tax return. If the child care facility will not provide separate receipts the proportion will still be calculable from one receipt. For simplicity have rounded each parents proportional percentage. These percentages are to be used for all other special expenses order to be shared and for any expenses the parents’ may agree to share in the future. The Father is to pay 69% and the Mother is to pay 31% of those expenses. [42] Although the Mother initially resisted the children’s participation in Taekwondo she has become supporter of this activity. The children appear to enjoy this training and given all the other upsets in their lives, they should be able to continue to participate in this recreation. For them it is necessary. However, the cost, when separated from the child care aspect, does not appear to exceed either the Father’s or the Mother’s ability to pay. The children are not enrolled in other activities on regular basis. This is an expense that these parents should share but cannot order them to do so because the expense is not extraordinary. [43] Because of the shared parenting arrangement the Father is paying less than the table amount of the child support guidelines. If the Mother will not contribute to the cost of Taekwondo, he will have to pay the entire cost. Of course the Mother may then pay for another activity for the children at her own cost. Mature parents would recognize what will be beneficial for their children within the confines of their financial means and share the cost of what can then be afforded. These parents are to make joint decisions about the children’s recreational activities. Their ability to co-operate in respect to these decisions, and share the expense, will be examined during the review. [44] If these parents decide the children need counseling, the cost not covered by medical benefit plan, is to be shared proportionally. Division of Matrimonial Property [45] have very limited information about the value of assets owned by the parties when they separated. do know the matrimonial home was sold and there was no equity remaining to divide between the parties. The parties argued about that sale and the Father now alleges the Mother committed waste because the house may have been sold at time when higher price may have been offered. There is no information before me from which can draw the conclusion that, but for the Mother’s interference, higher price would have been obtained. [46] The Mother admitted she had an R.R.S.P. with before tax value of approximately $12,000.00. She produced no documentation to substantiate this value. The Father did not ask for documentary confirmation in any court appearances. The Mother cashed out this R.R.S.P. and paid credit card and other debt that was in her name alone. Some of this debt may have been matrimonial but have insufficient evidence to “prove” that suggestion. can say that the Father has not shown the Mother to be exorbitant in her lifestyle or expenditures although she does appear to spend much more on food then may be justifiable. Usually debt incurred by spouses during their co-habitation is used to support the family in one way or another. While couple are living together, and, for example, absent any indication of gambling addiction (which may be hidden), or proof of trips away without other members of the family for unknown purposes, or purchase of personal use expensive jewelry or clothing, the time and expense of demanding disclosure of credit card purchases with the attendant review of every line item is difficult to justify. It may be more instructive for the parent to look at the combined income remaining after subtracting mandatary deductions and then compare that to the expenses he or she knew had to be paid while they were living together. expect in most cases little surplus would be revealed but only deficit. [47] The Father choose not to seek division of the Mother’s R.R.S.P, nor did he attempt to recreate their debt situation to justify finding the Mother’s debt was not matrimonial. He does want this considered in respect to the Mother’s request for division of his R.R.S.P., spousal support and retroactive support. The fact is, to rid themselves of remaining debt following separation, both parents declared bankruptcy. [48] The Father retains two R.R.S.P.’s. One had value of $9,800.00 and the other of $3,110.00. Both were valued to February 24, 2010. No documentary confirmation of these values has been provided. do not know their present values. The Mother did not ask for documentary confirmation in any court appearances. She requests division of the R.R.S.P. valued at $3,110.00. While she has not said so, perhaps she has done so in recognition of her exclusive use of “her” R.R.S.P. Under these circumstances make no division of R.R.S.P.’s between these parties. [49] The parties had vehicles prior to their separation but neither has requested equalization of any values attributable to those vehicles. The Father is seeking certain appliances, washer, dryer, refrigerator, kitchen range, dishwasher and microwave, stored by the Mother for which she has no present use. She did not require use of these appliances, and likely many other furnishings, because she moved into her present partner’s already furnished home. At trial the Mother suggested she would give the Father the washer, dryer and microwave. The other items might be “required” as replacements for similar items in her partner’s home. Given the history between these parties am not confident these items are in workable condition. Because she had no use for these items the Mother could have released these to the Father some time ago. She retained the majority of the household furnishings and while these rarely have significant value, when furnishings and appliances are not required they should be provided to the other party. [50] The Father placed value on appliances in his Statement of Property filed March 17, 2010. The Mother placed no value on these items in her Statement of Property filed January 25, 2010. Evidence before me suggests the refrigerator placed in storage is the one he valued at $150.00. He places the following value on the other items: Washer and Dryer $500.00 Dishwasher $300.00 Ceramic top Stove $700.00 Microwave $100.00 have no documentary material to support these values. That is not unusual. These are used appliances but they should, in these circumstances, be given value. There was no reason to withhold them from the Father. find the value for the Ceramic top Stove to be somewhat pricey for used appliance. have reduced the total value somewhat as result. The total value will assign to these items is $1,350.00. Rather than provide those items now, when their condition is unknown, the Mother is to pay the Father for his share in this value the sum of $675.00. [51] The only assets of value remaining are the Father’s pension and the possibility that he will receive severance award when he retires from the military. Neither party provided information about the severance award. The Father was not asked any questions during his testimony about the severance award. There was no admission by him that he was entitled to severance award. The Mother did not request disclosure of the Father’s entitlement to severance award during any court appearance. have no “evidence” from which to conclude this asset exists. All have are comments in summation from the Mother’s lawyer about division of this asset. have nothing upon which can base conclusion that he has an entitlement or will have an entitlement to severance award. cannot take judicial notice of this “fact”. Therefore cannot make an “if and when” order as requested by the Mother. make no order in respect to severance award. [52] Neither party disputes the Father’s entitlement to pension. The Mother does appear to have pension but whether her entitlement arose prior to the parties separation is unclear. In any event the Father is not seeking any division of her pension. The Father requests division of his pension benefits earned during the marriage. The Mother wants to include the premarital benefits based upon the principles expressed in Morash v.Morash, 2004 NSCA 20 (CanLII). There is no dispute that pre marital pension benefits are matrimonial property. The question always is whether there are factors under Section 13 of the Matrimonial Property Act R.S.N.S. 1989, c. 275 to support finding that an equal division of those benefits “would be unfair or unconscionable”. [53] In Jenkins v. Jenkins (1991), 1991 CanLII 4342 (NS SC), 107 N.S.R. (2d) 18 (T.D.), Richard J. reviewed the meaning of unfair or unconscionable as set out in s. 13 of the Matrimonial Property Act propose now to deal with the division of matrimonial assets in accordance with the law as set out in Donald, supra, while remaining mindful of the comments of MacDonald, J.A., in Nolet. To support finding that division is "unfair and unconscionable" it seems that there must be something more than mere inconvenience. The Random House Dictionary defines "unconscionable" variously as "unreasonable", "unscrupulous", "excessive" and "extortionate". These are strong words, and when coupled with the requirement that "strong evidence" must be produced to support an unequal division the burden upon the party requesting an unequal division of matrimonial assets is somewhat onerous. The subsections of section 13 relevant to this decision are: d) the length of time that the spouses have cohabited with each other during their marriage e) the date and manner of acquisition of the assets [54] The Father’s pension entitlement start date is not entirely clear. report about the monthly benefits he will receive has been provided. It appears from that report he has 16 years and 315 days of pensionable service. The parties cohabited for almost years. Therefore almost one half of this pension was earned before the parties entered into their relationship. [55] There appears to be growing body of decisions suggesting it is generally considered "unfair and unconscionable" to equally divide premarital asset value in short relationship. Similarly it is generally considered not to be “unfair and unconscionable” to equally divide premarital asset value in lengthy relationship. The exact reason why this should be so is not often discussed. As result it is difficult to understand how factors (d) and (e) should be applied in marriages greater than years but less than 20. Within that range considerations that appear to influence the outcome are: whether children were born of the relationship; the age of the parties at separation; whether the owner of the asset that has premarital value was previously married and shared some portion of that asset with former spouse; whether the spouse seeking an equal division of premarital value has substantial non- matrimonial assets or will retain substantial matrimonial assets; whether the spouse seeking an equal division of premarital value was stay at home spouse who became financially dependent upon the other spouse. whether the premarital value of the asset was directly or indirectly maintained or increased by the spouse requesting equal division; for example, the premarital value of matrimonial home may be enhanced as result of the labour of stay at home spouse. [56] This is not short marriage, neither is it lengthy. Although there are children born of this relationship, the Mother worked during much of the marriage. She has not become economically dependent upon the Father. She is 37 years of age and has time to accumulate her own pension entitlement. She did not contribute in any way to the acquisition or maintenance of the premarital pension benefits. In these circumstances I consider it "unfair and unconscionable" to equally divide the Father’s premarital pension benefits. Spousal Support [57] As result of the interim order granted in this proceeding the Mother has been receiving $125.00 per month spousal support since April 1, 2010. She has requested spousal support in the amount of $350.00 per month for further years. The Father questions her entitlement to continuing spousal support and denies his ability to pay. [58] Entitlement to spousal support and the objectives to consider when making an award are governed by Section 15.2 of the Divorce Act R.S. 1985, c.3. Section 15.2(6) creates four statutory support objectives. The Supreme Court of Canada in Moge v. Moge 1992 CanLII 25 (SCC), [1992] SCR 813. and Bracklow v. Bracklow 1999 CanLII 715 (SCC), [1999] SCR 420 confirmed that all four objectives are to be considered in every case but no one objective has paramountcy. If any one objective is relevant upon the facts, spouse is entitled to receive support. [59] In Bracklow v. Bracklow, supra, the Supreme Court analysed the statutory objectives and held that they create three rationales for spousal support: 1. Compensatory support to address the economic advantages and disadvantages to the spouses flowing from the marriage or from the roles adopted in marriage. 2. Non-compensatory dependency based support, to address the disparity between the parties, needs and means upon marriage breakdown. 3. Contractual support, to reflect an express or implied agreement between the parties concerning the parties’ financial obligations to each other. These rationales take into account both the factors set out in s. 15.2(4) and the objectives set out in Section 15.2(6). [60] The Supreme Court did recognize that many claims have elements of two or more of the stated rationales. It confirmed that analysis of all of the objectives and factors is required. Pigeonholing was to be avoided. [61] In this decision will not comment on the contractual objective because it is not factor in the case before me. [62] Examples of circumstances that may lead to decision that spouse is entitled to compensatory support are: a) spouse’s education, career development or earning potential have been impeded as result of the marriage because, for example: spouse has withdrawn from the workforce, delays entry into the workforce, or otherwise defers pursuing career or economic independence to provide care for children and/or spouse; spouse’s education or career development has been negatively affected by frequent moves to permit the other spouse to pursue these opportunities; spouse has an actual loss of seniority, promotion, training, or pension benefits resulting from an absence from the workforce for family reasons. b) spouse has contributed financially either directly or indirectly to assist the other spouse in his or her education or career development. [63] Non-compensatory support incorporates an analysis based upon the concepts of economic dependency, need and ability to pay. If spouses have lived fully integrated lives, so that the marriage creates pattern of economic dependence, the higher‑income spouse is to be considered to have assumed financial responsibility for the lower‑income spouse. In such cases court may award support to reflect the pattern of dependence created by the marriage and to prevent hardship arising from marriage breakdown. L'Heureux‑Dubé, J. wrote in Moge v. Moge, supra, at p. 390: Although the doctrine of spousal support which focuses on equitable sharing does not guarantee to either party the standard of living enjoyed during the marriage, this standard is far from irrelevant to support entitlement (see Mullin v. Mullin (1991), supra, and Linton v. Linton, supra). Furthermore, great disparities in the standard of living that would be experienced by spouses in the absence of support are often revealing indication of the economic disadvantages inherent in the role assumed by one party. As marriage should be regarded as joint endeavour, the longer the relationship endures, the closer the economic union, the greater will be the presumptive claim to equal standards of living upon its dissolution (see Rogerson, "Judicial Interpretation of the Spousal and Child Support Provisions of the Divorce Act, 1985 (Part I)", supra, at pp. 174‑75). (emphasis added) It is not clear from Justice L'Heureux‑Dubé’s, decision whether entitlement arising from “pattern of dependence” is compensatory or non-compensatory. pattern of dependence may create compensatory claim because it can justify an entitlement even though spouse has sufficient income to cover reasonable expenses and might be considered to be self-supporting. This often is described as the “lifestyle argument” that the spouse should have lifestyle upon separation somewhat similar to that enjoyed during marriage.(Linton v. Linton 1990 CanLII 2597 (ON CA), 1990 CarswellOnt 316 (Ont. C.A.) lengthy marriage generally leads to pooling of resources and an interdependency even when both parties are working. Usually the recipient spouse will never be able to earn sufficient income to independently provide the previous lifestyle. This would form the basis of compensatory claim but does not necessarily entitle spouse to lifetime spousal support. The essence of compensatory claim is that eventually it may be paid out. This leads to discussion about the quantum and duration of the claim. [64] Once it is decided spouse is entitled to spousal support, the quantum (amount and duration) is to be determined by considering the length of the relationship, the goal of the support (is it compensatory, non-compensatory or both), the goal of self-sufficiency, and the condition, means, needs and other circumstances of each spouse including consideration of the division of matrimonial property between the spouses. [65] There will be cases when the analysis may indicate the only way to adequately address the compensatory or non-compensatory claim is to continue support for significant periods of time possibly during the entire life of the recipient or payor. (Rondeau v. Kerby, 2004 NLCA 54 (CanLII), 2004 CarswellNS 140 (N.S.C.A.) This most often will occur in respect to lengthy marriages where there is significant income disparity. [66] Generally non-compensatory claim in short to mid length marriage is satisfied when spouse becomes self-supporting and, in such case, neither the payor spouse’s greater income nor the inability of recipient spouse to replicate previous lifestyle, is factor entitling spouse to continuing support. When spouses have not had lengthy relationship and the only effect of the relationship has been that spouse has enjoyed better lifestyle than he or she could afford alone, the duration of support will likely be for period required to ease the recipient spouse’s transition to economic independence. Self-sufficiency, however, is relative concept. It constitutes something more than an ability to meet basic living expenses. It incorporates an ability to provide reasonable standard of living from earned and other income exclusive of spousal support. [67] As have said previously, this is not short or lengthy marriage. have no information about the Mother’s education, skills and training background. know little about her employment history before she married the Father. Therefore, do not know what “career” she gave up to marry the Father and move with him to Nova Scotia. There is no indication she was prevented or discouraged from pursuing employment opportunities or developing career during her marriage. It is clear she did not work for periods of time and remained at home to care for the children. Whenever this occurs there is, in fact, dislocation from the workplace that will generally result in decision that compensatory entitlement to spousal support exists. This is because the spouse who is not working loses certain advantages that are common to most employees, for example, the opportunity to gain experience that may result in better paying employment or payment into the Canada Pension Plan. Rather than force parties to attempt calculation of these lost benefits (which would be extremely difficult these become factors to consider in the compensatory support analysis. [68] This couple, as is common, did not have enough household income to meet their expenditures. Each blames the other for this unfortunate reality but the information provided during this proceeding suggests each had measure of fault in adding to family debt. The Mother had to return to the workplace. She returned to work for period of time after the birth of their first child. Eight months after the birth of their second child she obtained employment and she has been employed ever since. Her present employment appears secure and her income is stable. She had very limited claim to compensatory support at the time the parties separated. She will receive an equal division of the Father’s pension benefits earned during the marriage. She received some spousal support since the Interim Order. At this time find she has no compensatory claim to spousal support. [69] The Mother earns substantially less than the Father. Often disparity in income leads to conclusion spouse is not self sufficient and has “need” components of the non-compensatory analysis. Given the length of this marriage, the Mother’s work history, present employment and income, find her to be self sufficient. The Mother has no entitlement to spousal support. [70] As explained earlier, the Mother’s Statement of Expenses is not an accurate indication of her “need”. But even if she does have “need”, and I have decided she does not, I believe it is useful to complete an analysis of the Father’s ability to pay. [71] The Spousal Support Guidelines are useful in the search for an answer to the questions about ability to pay. Using the incomes have chosen, and considering the effect of the child support award, computer analysis suggests spousal support within range from $36.00 per month to $596.00 per month for an indefinite duration with minimum or 4.5 years and maximum of 12 years from the date of separation. The mid range amount is $321.00 per month. At $36.00 per month the Father will have net disposable income of $3,579.00 and the Mother’s net disposable income will be $3,045.00. At $321.00 per month the Father’s net disposable income will be $3,410.00 and the Mother’s $3,190.00. However, this analysis does not include the cost of child care or any other Section expenses. Because the Father will be required to pay larger percentage of these expenses he will have diminished capacity to pay spousal support. The Mother was seeking approximately $8,000.00 per year for child care. If the Father can reduce that to $6,000.00 per year he will pay $345.00 per month as his proportionate share. It is unlikely he will receive any significant deduction from his income tax as result of paying for child care. The Mother will continue to receive some benefit from that expenditure and she will still receive some child tax benefit. Under these circumstances the Father has no ability to pay. Retroactive Child Support/ Spousal Support [72] The majority in S.(D.B.) v. G.(S.R.)et. al. 2006 SCC 37 (CanLII), 2006 Carswell Alta 976 (SCC) confirmed that the decision to grant retroactive award is discretionary. Justice Bastarache, writing for the majority, described various issues and factors to be considered prior to making retroactive award. Those are: 1) whether there is or is not an existing court order or agreement 2) status of the child/children 3) delay by the recipient in seeking the award 4) conduct of the payor parent 5) financial circumstances of the child/children 6) hardship imposed by retroactive award [73] The Father did provide significant financial support for the Mother and the children after their separation. Their conflict prevented them from making sensible decisions that could have eased their financial chaos. The Mother made decisions about child care without consulting the Father to determine whether the facility chosen was affordable. Beginning April 1, 2010, based upon an income of $69,576.00 the Father began paying table guideline child support of $978.00 per month, child care expense contribution of $307.00 per month and spousal support of $125.00 per month. There is no evidence the children suffered any financial depravation requiring retroactive award. In addition if the Father is required to pay retroactive award it will impede his ability to provide child care and pay other expenses relating to his children in this shared parenting arrangement. [74] will not recalculate the support already paid nor will order the Father to pay the mother child support or spousal support for the period from the date of separation until March 30, 2010 Beryl MacDonald, J.S.C. Schedule “A” Custodial Arrangement/ Decision Making 1) The children are to be in the joint custody of the Father and the Mother meaning, unless stated otherwise, both parents are to share equal responsibility and authority in making decisions which shall be considered to include decisions about significant health, dental and mental health issues; counseling; religious instruction; and enrollment in recreational activities. 2) When parent has final decision making authority he or she must consult with the other parent before making that decision. 3) With respect to daily decisions, including non-emergency medical care, the parent who has care of the children according to the parenting plan is to be the decision maker with the other parent being advised accordingly. 4) Should the parents be unable to agree about decision that is to be made jointly, they are first to consider following the recommendations made by professionals (doctors, teachers, counselors etc. ), but if no professionals are involved or if there is still disagreement after consulting with professionals they are to engage in mediation before commencing litigation. 5) The Father is to have final decision making authority concerning the children’s education and choice of child care facility or program. 6) The Mother is to have final decision making authority concerning the children’s regular health care (not including counseling) and dental care. 7) Each parent is entitled to receive copies of all medical, dental, school and other reports related to the children and is entitled to consult with the children’s teachers, physicians, dentists, other care givers and third party service providers concerning the children’s well being. 8) Each parent is to be listed on all documents pertaining to the children and is entitled to attend any of the children’s scheduled appointments (except that attendance at counseling appointments is to be determined by the counselor). .../1 Parenting Plan 9) The parents are to share parenting of the children. 10) The regular schedule will alternate between the parents from week to week from Friday after school until the following Friday after school. 11) The regular schedule is to commence two weeks after the date of this decision and the exact date is to appear in the Corollary Relief Order. The regular schedule will commence with the children in the care of the Father. 12) For holidays and special occasions the regular schedule is to be suspended. After suspensions, if the resumption of the regular schedule is not mentioned, the regular schedule is to resume and the children are to be in the care of the parent who did not have the children in his or her care immediately before resumption of the regular schedule. 13) For the Victoria Day and Thanksgiving Day holiday long weekends the children will be in the care of the parent who has care of the children according to the regular schedule. 14) For Fridays, including holiday Friday, when the children are not required to attend school, the parent who was to have the children on Friday after school according to the regular schedule is to have the children in his or her care from Thursday after school. 15) The schedule for Labour Day, Natal Day and Canada Day holiday long weekends are to be the same as for Victoria Day and Thanksgiving Day unless parent has this time period as part of his or her summer schedule. 16) For the Easter Holiday, the children are to be in the care of the Mother in even years from Thursday after school until the following Tuesday when the children will return to school; in odd years the children are to be in the care of the Father for this same time period. 17) For the Christmas Holiday, the children are to be in the care of the Father in odd years from after school at 6:00 p.m. on the final day of school before the Christmas break until Christmas Day at 2:00 p.m. when they will be in the care of the Mother until their return to school at the end of the break. This shall reverse in even years when the Mother is to have the children in her care from after school at 6:00 p.m. on the final day of school before the Christmas break until Christmas Day at 2:00 p.m. when they will be in the care of the Father until the end of the break. 18) Each parent is to have the children in his or her care for consecutive two week period during the children’s summer school break. In odd numbered years the Father is to have first choice of that two week period. In even numbered years the Mother is to have first choice of that two week period. The parent with the first choice must notify the other parent of his or her chosen two week period on or before May 31st of each year and the other parent shall notify of his or her two week period on or before June 15st of each year. The parent who is to have the children in his or her care for two week period is to pick up the children from the other parent’s home (if the children according to the regular schedule are in the other parent’s home) at 6:00 p.m. the day before the beginning of his or her two week period. 19) For the March School Break, the children are to be in the care of the Father in even numbered years from Friday after school at 6:00 p.m. at the beginning of the break until Saturday at 12:00 p.m at the end of the break (the Saturday before the Monday when the children must return to school) and they are to be in the care of the Mother, for the same period of time in odd numbered years. 20) The children are to be in the care of the Father on Father’s Day and the Mother on Mother’s Day from 9:00 a.m. until the following Monday morning when they will return to school. 21) For Halloween the children are to be in the care of the Father in even numbered years, and in the care of the Mother in odd numbered years from after school or, if Halloween is not on weekday, from 4:30 p.m. on the day of Halloween until the following morning when they will return to school or be placed in the care of the other parent at 9:00 a.m. 22) On their birthday the children are to remain in the care of the parent who has their care according to the regular schedule. The parent who does not have care of the children is to be provided time when the children will be available to have telephone conversation with that parent for period of 10 minutes to wish the birthday child happy birthday and engage in general conversation. 23) The parent who does not have care of the children is entitled to make one telephone call to the children, during the regular schedule, on Tuesday and Thursday evening to say good night and to have short general conversation. This call is not to be used to question the children about parenting methods or activities of the other parent. The telephone call is to be made at 8:00 p.m. unless the parent has been notified the child will not be available in which case an alternate time is to be provided. The call for both children is not to exceed 10 minutes. 24) Telephone contact with the children for other than regular scheduled times is to be arranged between the parents as is practical given travel plans, if any, and likely availability of the children. The parent having care of the children is to, at minimum, ensure the children contact the other parent by telephone once in every 48 hour period and if the parent cannot be reached leave message that the attempt was made. 25) Changes may be required to this parenting plan because, for example, parent is unable to care for the children due to illness, work obligations, child’s illness, or because parent cannot pick up child from care giver or parent. In such cases the children are either to remain with or be taken into the care of the other parent. These arrangements may be made as result of telephone contact but they are to be confirmed eventually by e-mail exchange. The regular schedule is to resume as soon as the unavailable parent becomes available and it is to resume with the children being cared for by that parent. 26) In addition to paragraph 25, the parents may change the parenting plan but to do so they must agree to the changes in writing. Communication 27) Until the parents are ready to communicate either by way of face to face meetings or in telephone conversations, regular communication is to be by e-mail. The e-mail is to list the topics, and the reply e-mail is to deal with each of those topics in order without adding new topics. The parent having new topic must send an originating e-mail listing that topic or topics and request reply. 28) Communications required for emergencies, to speak with child, to confirm pick up or drop off and for similar situations that do not require significant back and forth discussions, may be face to face or by way of telephone conversations. 29) The parents, either separately, or if they are advised by counselor, together, are to engage in counseling program to improve their communication with each other regarding the parenting of their children. They may do so by attending programs offered by organizations such as Family SOS, (if it provides program for parents who are separated), or by using counselor accessed through his or her workplace insurance or employee assistance program.

The parties were married almost nine years and have two children, ages eight and 10. The mother was highly critical of the father's ability to parent, and opposed his application for shared custody. She accused him of abusive behavior, using drugs/abusing alcohol, and claimed he did not help parent when they lived together. The level of conflict between the two was high. Each lived with new partners. They both filed expense statements showing significant monthly deficits but, since they had declared bankruptcy, there was no evidence of how they were meeting the shortfall. The mother sought a share of the father's pension, including his pre-marriage contributions, spousal support and child support. She worked through most of the marriage, but earned a lot less than the father did. Interim shared parenting, with a review in eight months. This is not an ideal arrangement, but the alternatives will leave the children worse off. The father was more credible; the mother's allegations are unsubstantiated. While he's contributed to the conflict in the past, he is making an effort while the mother and her partner are not. The mother will have the final say on health related matters, and the father will have the final say on the choice of childcare and helping with homework (because he is francophone and better able to help). If the mother is unable to learn how to work with the father, the court will consider awarding him custody. On review, the court will consider the parties' ability to communicate and cooperate, including whether or not they are able to agree about extracurricular activities for the children. The father will pay child support in the set-off amount. While he has twice her income, the mother hasn't proven the set-off amount is insufficient to enable her to meet the children's needs while they're with her. It's impossible to have a deficit without disclosing the debt instruments used to support debt accumulation. Her partner is either meeting her shortfall or her expenses are overstated. It would be unfair and unconscionable to award her half of the pre-marriage pension contributions based on the length of the marriage and the fact she wasn't economically dependant on the father. She's not entitled to spousal support. Even if she was, the father has no ability to pay given his obligations to the children.

2_2011nssc486.txt

QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2012 SKQB 372 Date: 2012 09 12 Docket: Q.B.G. No. 469 of 2007 Judicial Centre: Saskatoon BETWEEN: MICHAEL JOHN KOZAK, and ERNEST HOEPPNER, Counsel: Jennifer D. Pereria for the defendant applicant W. Timothy Stodalka for the plaintiff respondent FIAT KONKIN J. September 12, 2012 [1] The applicant, Ernest Hoeppner, brings an application for relief in the alternative as follows:(a) that the plaintiff’s action be dismissed for want of prosecution; or(b) that the plaintiff be required to disclose the amount recovered from its lawsuit with Wawanesa Insurance, Q.B. No. 1074 of 2001. [2] The plaintiff, Michael Kozak, purchased insurance from the defendant, Ernest Hoeppner. On March 7, 2000, Mr. Kozak suffered a fire at his farm. On May 7, 2001, Mr. Kozak issued a statement of claim against one James Neigum, his tenant, and Wawanesa Mutual Insurance Company under Q.B. No. 1074 of 2001 in the Judicial Centre of Saskatoon. [3] On May 5, 2006, Mr. Kozak commenced an action against Mr. Hoeppner alleging that Mr. Hoeppner was in breach of contract or negligent for failing to obtain full replacement value insurance coverage for Mr. Kozak and for failing to accurately assist Mr. Kozak in filling out his proof of loss forms. statement of defence was filed by Mr. Hoeppner on April 5, 2007. Mediation took place September 11, 2010 and examinations for discovery were held on May 9, 2011. During those examinations for discovery Mr. Kozak refused to respond to the undertaking now requested in this action. Mr. Hoeppner sold his insurance services on October 1, 2010. [4] The Court of Appeal in Saskatchewan has set out the principles for determining whether or not matter should be struck for want of prosecution in the case of International Capital Corp. v. Robinson Twigg Ketilson, 2010 SKCA 48 (CanLII), 350 Sask. R. 160. The guiding principles from that case were summarized by Zarzeczny J. in Anderson v. Wascana Wood Components Ltd., 2010 SKQB 357 (CanLII), 361 Sask. R. 219, where at paras. 10 and 11, he stated: 10 At paras. 43-45, the court sets out the three step approach for dealing with an application to strike with its modification to step 3: 1. Step one an inquiry about whether the defendant has established that the delay in moving case ahead has been inordinate. 2. Step two an examination of the reasons for the delay aimed at determining whether it is excusable. 3. Step three if the delay is found to be both inordinate and excusable, determine whether it is in the interests of justice that the case proceed to trial notwithstanding the delay. 11 The third step should involve consideration of the issue of prejudice (previously the focus of step 3) as one, albeit an import, aspect of step but having regard to eight factors (para. 45). They include the following: 1) the prejudice the defendant will suffer in mounting its case if the matter goes to trial; 2) the length of the inexcusable delay; 3) the stage of the litigation; 4) the impact of the inexcusable delay on the defendant; 5) the context in which the delay occurred; 6) the reasons offered for the delay; 7) the role of counsel in causing the delay; and 8) the public interest. The Period May 2000 to June 2010 [5] The incident leading to the claim happened in May of 2000. The plaintiff issued its statement of claim against Mr. Hoeppner in May of 2006, shortly before the limitation period would have expired. That it had right to do. The statement of claim in this matter was issued on May 5, 2006 at the Judicial Centre in Regina and served sometime thereafter. The statement of defence was filed on April 11, 2007 and at that time an application was made to transfer the file from Regina to Saskatoon. Mediation took place on September 11, 2010 and examinations for discovery were held on May 9, 2011. The plaintiff argues that the delay of roughly four years from the filing of the statement of defence to the date of examination for discovery is not an inordinate as they were heavily involved in the matter dealing with the other file, the suit against Wawanesa. That, is not full answer in this matter. There is nothing to have stopped the plaintiff from conducting examinations for discovery on Mr. Hoeppner within the same time frame as it was dealing with the Wawanesa matter. Had the Wawanesa matter taken an additional three or four years to resolve through trial and appeal for instance would the plaintiff be arguing that it need not have proceeded with any action on Mr. Hoeppner’s file. The plaintiff also argues that the defendant acquiesced in this delay by not pushing the plaintiff to proceed with the matter. In her affidavit sworn July 10, 2012, Ms. Pereira sets out number of correspondences which she attempted to receive updates on this file and push to have it moved forward. cannot accept the plaintiff’s position that the defendant did nothing during that period and therefore acquiesced in the delay. I find that the delay was inordinate. This takes us to the second step in the test in which the court needs to look at the reasons for delay to determine whether or not the delay is excusable. Here the plaintiff has raised some arguments which are beneficial to its cause. The plaintiff argues that it was understood between the parties that the action against Mr. Hoeppner would only proceed depending on the outcome of the claim against Wawanesa. This is partially confirmed by the affidavit of Ms. Pereira sworn July 10, 2012. Of course it would be to the defendant’s advantage to allow matters to play out in the suit against Wawanesa in hopes that complete resolution could be had. This appears not to have been the case and after the resolution with Wawanesa matters have progressed on bit of tighter time line. Mediation was held in November of 2010, thereafter statement of documents was produced and examinations for discovery were held in May of 2011. It took plaintiff’s counsel from that time until May 29, 2012 to file its reply to undertakings. This was approximately two weeks after the application for this motion had been filed. The Period June 2010 to Application [6] Assuming for the moment that the delay from the period of June 2010 to May of 2012 could be considered inordinate and inexcusable, we would then have to look at the step (3) from the Court of Appeal decision to determine on factor‑by‑factor basis whether or not remedy of dismissing the claim would be available. Under that category we must consider factors like prejudice to the defendant. Here the defendant while having sold his business in 2010 admits that he still has the file and has reviewed it on regular basis. No issue was raised about witnesses not being available or evidence having been lost or destroyed. That factor does not favour the defendant. The length of the inexcusable delay [7] The delay here would simply be the one-year period that it took the plaintiff’s counsel to respond to the undertakings. Here, some time would be expended in determining what undertakings could be responded to and what should be resisted. While one year is an excessive period of time it is not such as to lead me to the position that this claim should be struck on that basis. Stage of litigation [8] As examinations for discovery are completed this matter is at a point where it could well go to pre-trial conference. Therefore it is not at such an early stage that it would lead the court on its own to strike. Impact of inexcusable delay on defendant [9] As the defendant is retired from active business, this delay is not causing him any professional embarrassment or damage to reputation. In addition, this is not matter that is in the public’s eye and therefore very few people would even know that it is currently in existence. The context in which the delay occurred. [10] The delay from June 2010 to May 2012 really is a delay from May 2011 until May 2012 and solely on the head of counsel for the plaintiff for not responding in a timely fashion to the undertakings. There were requests for answers to the undertakings culminating in the application. Reasons offered for delay [11] The only reason offered by counsel for the plaintiff for the delay in responding to the undertakings was a busy schedule and determination was to be made about which undertakings could be answered and which were not answerable pursuant to the Rules. This delay tips the balance towards the defendant. The role of counsel in causing the delay [12] The delay from June 2010 to May 2012 is almost entirely on the head of the counsel for the plaintiff and it is not for the court to deprive the plaintiff of his claim for actions beyond his control There is nothing to suggest that the delay in response to the undertakings was caused to any great extent by the plaintiff. [13] On the whole, in speaking to the delay from June 2010 to May 2012 even if it is inordinate and inexcusable when one considers the factors as set out by the Court of Appeal cannot find that this claim should be struck. Some of the considerations are in favour of the defendant and others are not. Clearly counsel for the plaintiff did not diligently respond to the undertakings. He is advised not to repeat such conduct. Second issue application to produce settlement amounts [14] The applicant/defendant also applies to the court for an order to force the plaintiff to disclose the settlement amounts from its settlement in the Wawanesa claim. Counsel for the plaintiff argues that the parties entered into minutes of settlement on confidential basis and that it cannot disclose those amounts without breaching that confidence. In this matter counsel for the plaintiff asserts that as the settlement documents were negotiated and meant to remain private that blanket privilege attaches to them and they are not disclosable. Counsel relies on cases such as Middelkamp v. Fraser Valley Real Estate Board (1992), 1992 CanLII 4039 (BC CA), 96 D.L.R. (4th) 227, 71 B.C.L.R. (2d) 276 (B.C.C.A.). In that case McEachern C.J. (as he then was) states in part at paras. 18 ... find myself in agreement with the House of Lords that the public interest in the settlement of disputes generally requires “without prejudice” documents or communications created for, or communicated in the course of, settlement negotiations to be privileged. would classify this as “blanket”, prima facie, common law, or “class” privilege because it arises from settlement negotiations and protects the class of communications exchanged in the course of that worthwhile endeavour. 19 In my judgment this privilege protects documents and communications created for such purposes both from production to other parties to the negotiations and to strangers, and extends as well to admissibility, and whether or not settlement is reached. This is because, as have said, party communicating proposal related to settlement, or responding to one, usually has no control over what the other side may do with such documents. Without such protection, the public interest in encouraging settlements will not be served. [15] McEachern C.J. did allow in his judgment for exceptions to this blanket privilege. This notion was discussed by the British Columbia Court of Appeal in Dos Santos (Committee of) v. Sun Life Assurance Co. of Canada, 2005 BCCA (CanLII), 249 D.L.R. (4th) 416, where the court stated at paras. 17 through 20: 17 In Middelkamp, supra, Chief Justice McEachern said there must be exceptions to the blanket privilege for settlement communications. Notably, he referred to the proper disposition of litigation (para. 20). 18 In my view Middelkamp did not close the door on what might constitute valid exception to the blanket privilege (see reviews of types of exceptions to the rule in Berry v. Cypost Corp. (2003), 2003 BCSC 1827 (CanLII), 43 C.P.C. (5th) 275, 203 BCSC 1827, and Unilever plc v. The Proctor Gamble Co., [2000] W.L.R. 2436 (C.A.)). 19 However, the test for discharging the burden to establish an exception should not be set too low. The public policy behind settlement privilege is compelling one. It is so compelling that even threats arising in the context of settlement negotiations may not justify an exception: Unilever, supra, at page 2449-2450. 20 To establish an exception in this case, the defendant must show that compelling public interest outweighs the public interest in encouraging settlement. An exception should only be found where the documents sought are both relevant, and necessary in the circumstances of the case to achieve either the agreement of the parties to the settlement, or another compelling or overriding interest of justice. [16] In Brown v. Cape Breton (Regional Municipality), 2011 NSCA 32 (CanLII), 331 D.L.R. (4th) 307, Justice Bryson adopted the Dos Santos language with regard to exceptions to the blanket rule and went on to say at para. 63, even those cases that most strongly endorse the policy reasons for protecting settlement communications from disclosure recognize that there are exceptions. In Middlecamp, Chief Justice McEachern listed several possible exceptions (fraud, or to rebut defences of laches, want of notice, or limitation period) without explicitly endorsing them, or providing an analytical foundation for them (para. 20). In Dos Santos the court recognized an exception for double recovery but more broadly was prepared to grant an exception if party could show compelling public interest that outweighed the public interest of encouraging settlement. An exception would only be found where the disclosure was both relevant and necessary in the circumstances of the case to support another compelling or overriding interest of justice. In Dos Santos, the plaintiff put the subrogation rights of his insurer in issue. The defendant insurer had contractual right to know what recovery the plaintiff had received in earlier litigation, which affected the insurer’s obligation to pay the plaintiff. To avoid double recovery, disclosure was ordered. And at para. 74: The double recovery rule is widely acknowledged exception permitting disclosure of documents otherwise protected by settlement privilege. It could form the basis of a disclosure order in this case should the trial judge ultimately determine that the communications sought here were relevant and necessary to avoid double recovery in this case. [17] In the case at bar, look at the tests of relevance and necessity. [18] Clearly in the trying and/or settlement of the case against Mr. Hoeppner the amounts already paid are relevant. Cases such as Dos Santos and Brown v. Cape Breton speak to the notion of the court protecting against double recovery. Also in that vein, find that the settlement amounts in the Wawanesa case are necessary to protect against that notion of double recovery. [19] therefore order that the settlement amounts arrived at in the minutes of settlement be disclosed. If those settlement amounts relate to structure by structure then those amounts will individually be disclosed. SUMMARY [20] Regarding the application to strike the plaintiff’s claim for want of prosecution, I find that for the initial period of May 2006 to May 2010 the delay was inordinate but excusable. With regard to the period of time June 2010 to May 2012 I find the period of delay not to be inordinate but even if inordinate and inexcusable, I would find that having regard to the principles set down by the Court of Appeal in International Capital Corp. v. Robinson Twigg & Ketilson that I would not strike the plaintiff’s claim. [21] With regard to the disclosure of settlement amounts I find that the defendant has made its case and order those specific amounts for each structure for which Wawanesa settled its claim to be disclosed. J. D.B. KONKIN

The plaintiff purchased insurance from the defendant. In 2000, the plaintiff's farm was damaged by a fire. He commenced an action against Wawanesa Insurance Company in 2001. In 2006, the plaintiff commenced an action against the defendant, alleging that the defendant was in breach of contract or negligent for failing to obtain full replacement value insurance coverage for the plaintiff. The defendant filed his defence in April 2007. Mediation took place in September 2010 and examinations for discovery were held in May 2011. At that time, the defendant asked the plaintiff to disclose the amount recovered in the Wawanesa lawsuit and the plaintiff refused. The defendant brought this application for relief that: 1) The plaintiff's action be dismissed for want of prosecution; or 2) The plaintiff be required to disclose the amount recovered in the other lawsuit. The defendant argued that the delays between the issuance of the statement of claim to the examination for discovery and then the delay between the time of mediation to May 2012 when the plaintiff's counsel filed the reply to undertakings were both inordinate.HELD: The Court applied the test established in International Capitol Corp. v. Robinson Twigg & Ketilson to determine whether or not a matter should be struck for want of prosecution. The Court found that the first delay was inordinate but because the plaintiff and defendant both acknowledged that the action against the defendant would only proceed depending on the outcome of the claim against Wawanesa, the delay was excusable. The Court found that the second delay was excessive, but was not sufficient to strike the claim on that basis. Applying the factors provided in Capitol, the Court found:1. Stage of litigation: It did not occur at an early stage of the litigation as the matter could well go to pre-trial conference. 2. Impact of delay: The delay was not causing any problems for the defendant. 3. The context in which the delay occurred: the delay in question was actually only one year during which the plaintiff's counsel did not respond in a timely fashion to undertakings. 4. Reasons offered for delay: Counsel was busy and it had to determine which undertaking could or could not be answered. 5. The role of counsel in causing the delay: The Court held that the delay caused by the plaintiff's counsel should not be a reason to deprive the plaintiff of his claim for actions beyond his control. The Court denied the application to strike the plaintiff's claim but ordered that the plaintiff disclose the amount obtained in the Wawanesa action on the basis that this case fell into the exception to the policy which protects settlement communications. Here, the communications sought by the defendant were relevant and necessary to avoid double recovery.

c_2012skqb372.txt

THE COURT OF APPEAL FOR SASKATCHEWAN [M.H.] and [A.H.] (Petitioners) RESPONDENTS [R.M.F.] (Respondent) APPELLANT CORAM: The Honourable Chief Justice Bayda The Honourable Mr. Justice Wakeling The Honourable Mr. Justice Lane COUNSEL: Mr. John Benesh for the appellant Mr. R. Wiebe for the respondents DISPOSITION: Appeal Heard: 17 November 1994 Appeal Dismissed: 22 December 1994 On Appeal From: U.F.C. 578/92, J.C. of Saskatoon Appeal File: 1816 Reasons by: The Honourable Mr. Justice Lane In concurrence: The Honourable Chief Justice Bayda The Honourable Mr. Justice Wakeling LANE J.A. The appellant, who is mentally handicapped, appeals the entrusting of custody of her five year old son to the respondents. The child was born in July of 1989 and in May of 1990 the appellant and her child were placed in the home of the respondent [M.H.]. The child and his mother were placed with [M.H.] and [A.H.] pursuant to Family Support Services Contract whereby the Harrises were to "spend individual time with [R.M.F.] in supervising and teaching her to properly care for [A.] and provide for his needs." [M.H.] later married [A.H.] who is the other respondent. The child was in the care of the appellant and the respondents from May of 1990 to June 1992 and since that time solely in the care of the respondents. The relationship between the appellant and the respondents broke down and she left the care of the respondents on May 30, 1992. The facts are more completely set out in the judgment of Dickson J., which judgment is appealed from, in essence, on the following two grounds: 1. Did the trial judge err in ruling the respondents have sufficient interest, and as result, status, within the meaning of s. 6(1) of The Children's Law Act, S.S. 1990-91, c.C-8.1, to apply for custody? 2. Did the trial judge err in awarding custody of the child to the respondents and not to the child's natural mother? The respondent cross-appealed for costs here and below contending the appellant's position had no merit and her case was being pushed forward by others, including the Department of Social Services. APPELLANT'S POSITION The appellant contends the respondents failed in their contractual duty (which the appellant classifies as fiduciary duty) to teach the appellant both how to properly care for the child and how to properly provide for his needs, and having failed to meet their obligations the respondents do not have "sufficient interest" as required by s.6(1) of The Children's Law Act, S.S. 1990-91, c.C-8.1 and are therefore without status to make an application for custody. The appellant then argues the trial judge erred in deciding the issue was simply to determine the best interests of the child. The appellant contends the trial judge should have started with the premise the natural relationship between mother and child ought to be preserved unless protection for the child is needed or the child is abandoned. The appellant says there was no evidence protection was needed and no evidence the child was ever put in jeopardy and the child was not abandoned. As result the child's right to be secure in its relationship with its natural parent should not be disturbed. The appellant contends the contract should govern and if those who sign such contract to supply custodial and support services are able to obtain custody, their dominating position vis vis those with disability in their care would encourage predatory actions against the less powerful. The appellant further contends the trial judge misconstrued important evidence and misinterpreted important facts. The evidence misconstrued was the finding by the trial judge the appellant was classified by her doctor as person requiring level care when in fact the classification was for departmental funding. Finally, the appellant says the trial judge misinterpreted the appellant's expert psychologist, failed to consider the resource material supplied by the appellant's psychologist, and failed to consider the support the Department of Social Services was prepared to supply the appellant. LEGISLATION The applicable statute respecting the custody of children is The Children's Law Act and the relevant provisions are: 6(1) Notwithstanding sections to 5, on the application of parent or other person having, in the opinion of the court, sufficient interest, the court may, by order: (a) grant custody of or access to child to one or more persons; 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; The relevant provisions of The Child and Family Services Act S.S. 1989-90 c.C-7.2 are: Subject to this Act and the regulations, the minister may: (a) establish, operate and maintain family services; (b) provide family services to or for the benefit of parent or child where the minister considers them essential to enable the parent to care for the child; (c) enter into agreements with any person providing family services by which the minister is obliged to make payments for the provision of family services pursuant to this section. DECISION OF THE TRIAL JUDGE The trial judge ruled the respondents had "sufficient interest" because on earlier applications their status was not challenged and although there had been no specific declaration of the respondents "sufficient interest" in these past applications it was obvious the presiding judge in chambers was satisfied the respondents had "sufficient interest". The trial judge then went on to find the respondents had, in fact, sufficient interest in the application to qualify as applicants for custody and we are in agreement with his finding. Relying on s.8 of The Children's Law Act the trial judge stated "The court's role is not to determine broad social issues, but instead, to determine what custodial arrangement is in [A.]'s best interest". And further, "The court's task is, once again, not to decide whether mentally challenged parents can be taught to care for children, but instead, in who's care will [A.]'s best interests be advanced." After reviewing the evidence, he stated "the evidence clearly demonstrates that [A.]'s best interest will be served if he remains in the care of the petitioners" (respondents). He then ordered reasonable access and if the parties could not agree on reasonable access they were granted leave to apply for further directions. ANALYSIS After deciding that the respondents had "sufficient interest" within the meaning of s.6 of The Children\'s Law Act and therefore status, a decision with which, as noted, we agree, the trial judge then had to decide the issue of custody. Simply put, the trial judge was correct in his statement of the law that his duty was to determine what custodial arrangement was in the child\'s best interest. The Children's Law Act makes it clear this is the only consideration. This rule prevails even in contests between a natural parent and a stranger. The parental tie between mother and child is, of course, not to be ignored in such contest. It is taken into account by the judge when considering the factors outlined in paragraph (i) of clause (a) of s.8. The trial judge's error as to the categorization of the appellant as needing level care when in fact the level is funding level and not "care" level is not material as there exists other strong evidence, including that of the court appointed psychologist, as to concerns about the mother's ability to care for the child, and the risk to the child if he is left unsupervised for extended periods of time in the mother's care. The trial judge considered the testimony of the appellant's expert psychologist, (who did not interview the parties) and the expert's written material and simply accepted the evidence of the other psychologists in making his determination as was the trial judge's prerogative. See Toneguzzo-Norvell v. Burnaby Hospital, 1994 CanLII 106 (SCC), [1994] W.W.R. 609 wherein McLachlin J. states at p. 614 and p. 615: agree that the principle of non-intervention of Court of Appeal in trial judge's findings of facts does not apply with the same force to inferences drawn from conflicting testimony of expert witnesses where the credibility of these witnesses is not in issue. This does not however change the fact that the weight to be assigned to the various pieces of evidence is under our trial system essentially the province of the trier of fact, in this case the trial judge. It is trite law that the trier of fact may accept such evidence as he or she finds convincing, and that an appellate tribunal ought not to interfere unless it is persuaded that the result amounts to "palpable or overriding error". The findings of the trial judge were strongly supported by the evidence, the law was correctly applied, and therefore his decision ought not be overturned. There is, however, concern about appropriate access. The trial judge was prepared to order reasonable access but gave the parties chance to work out what that meant. The appellant must know and understand what the rules of access are and the respondents must recognize an appropriate relationship between mother and child must be encouraged. The matter is, therefore, remitted to the Family Court to determine reasonable access. COSTS The trial judge made no order as to costs and the respondents' cross-appeal for costs, here and below. They are not looking for the appellant to pay costs, but they believe the appellant was supported by third parties in case which had no merit. The respondents, however, were not prepared to name any of the third parties other than the Department of Social Services and none of these third parties are parties to the action. There is little doubt the respondents have incurred significant financial burden. Given the comment of counsel for the respondent, he was not looking to the appellant to pay costs but that an award of costs may assist him in alleviating some of the financial burden, it is fair to award the respondents' costs on the Queen's Bench tariff on the trial below and on double Column on appeal. The appeal is, therefore, dismissed with costs here and below and the matter returned to the Family Court for a determination of reasonable access to the child by the mother. DATED at the City of Regina, in the Province of Saskatchewan, this 22nd day of DECEMBER A.D. 1994. concur BAYDA C.J.S. concur WAKELING J.A.

The Respondents contracted with the Department to care for a child and his Mother who was mentally disabled. After two years, the relationship between the Respondents and the Mother broke down and she left their home. The Respondents sought and were granted custody of the child. The Mother appealed. HELD: Appeal dismissed. 1)The Respondents had sufficient interest under s.6 of The Children's Law Act to seek custody of the child. 2)The trial judge correctly determined that the only issue was the child's best interests, even in a contest between a parent and a stranger, although the parent/child relationship was one factor to be considered. 3)The findings of the trial judge were strongly supported by the evidence, the law was correctly applied, and therefore his decision ought not be overturned. 4)The matter was returned to the Family Court for a determination of reasonable access.

4_1994canlii3885.txt

IN THE SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: Children’s Aid Society of Cape-Breton-Victoria v. M. 2007 NSSC 119 Date: April 20, 2007 Docket: 44071 Registry: Sydney, Nova Scotia Between: The Children's Aid Society of Cape Breton -Victoria v. L.M. and T.B. Respondent Revised Decision: The text of the original decision has been revised to remove personal identifying information of the parties on October 30, 2008. Judge: The Honourable Justice Theresa M. Forgeron Heard: In Sydney, Nova Scotia on November 10, 2006, December 7, 8,12, and 14, 2006, January 23, 2007, and February 2, 2007. Oral Decision: March 7, 2007 Written Decision: April 20, 2007 Counsel: Robert Crosby, Q.C., Counsel for the Applicant Ann Marie MacInnes, Counsel for L.M. Lisa Fraser-Hill, Counsel for the children, K.B. and C.B. Restriction on Publication: S. 94 (1) of the Children and Family Services Act applies and this judgement or its heading may require editing before publication. Section 94(1) provides: No person shall publish or make public information that has the effect of identifying child who is witness at or participant in hearing or the subject of proceeding pursuant to this Act, or parent or guardian, foster parent or relative of the child, 1990 c. 5. BY THE COURT: I. INTRODUCTION [1] The matter before me for determination concerns the disposition review involving the respondents’ children, K.B. born [in 1990] and C.B. born [in 1993]. At the outset of this hearing, the Children’s Aid Society of Cape Breton Victoria (the “Agency”) sought to have its involvement terminated, while L.M. requested the continued intervention of the Agency. During summations, the Agency consented to its continued involvement with the child C.B., but sought the termination of its involvement with the child K.B.. The respondent, T.B. did not participate at this disposition review, although he had participated in previous hearings. [2] must resolve two issues: (a) Did the Agency fail to disclose relevant information to the respondent, L.M. and to the court? (b) What is the proper disposition order in respect of the children, C.B. and K.B.? III. BACKGROUND INFORMATION [3] The respondents were involved in rocky common law relationship between 1985 and 1995. They lived in Alberta and then Nova Scotia. At the conclusion of the relationship, L.M. became the custodial parent. T.B. returned to Alberta. He had little involvement with the children except for two summer visits. The first occurred in 1998 in Cape Breton; the second occurred in 2004 when the children travelled to Alberta. T.B. also exercised sporadic telephone access to the children. [4] In the summer of 2005, K.B. ran from her mother’s home and stayed with her paternal uncle in [...]. Upon L.M.’s application, an ex parte order issued pursuant to the provisions of the Maintenance and Custody Act which order prevented K.B. from leaving Cape Breton Island until further court hearing. K.B. eventually reunited with her mother. However, the conflict within the M. household continued and this reached crisis point in December 2005. [5] The Agency filed protection application and notice of hearing on January 24, 2006. This was not L.M.’s first involvement with the Agency as she had child protection history which began in approximately 1995. [6] The s. 39, s. 40, and the disposition hearings were resolved by consent, and with court approval. The children were placed in the supervised care of T.B. who was given permission to return to Alberta with the children. In addition to the Agency’s supervision, arrangements had also been made to have out-of-province courtesy supervision by the [...] and Area Child and Family Services Authority (the “[...] Agency”). Further, the parties had agreed that should things not work out in Alberta, the Agency would return the children to Cape Breton. [7] T.B. and the children moved to [...] on February 13, 2006 where they lived with T.B.’s common law partner, B.R.W. and her four children in rental accommodations. [8] Difficulties arose and L.M. sought to have the children returned to Cape Breton. The Agency sought to have its involvement terminated. review was therefore scheduled. The contested disposition review spanned seven days: November 10, 2006, December 7, 8, 12, 14, 2006, January 23, 2007, and February 2, 2007. Lack of disclosure by the Agency was identified as an issue on November 10. The court directed full and complete disclosure. The Agency produced much of its file on December only three days prior to the scheduled hearing. An adjournment was necessitated on December 14 to allow the respondent, L.M. time to review further documentation which the Agency had failed to disclose notwithstanding the court’s direction of November 10. [9] At the conclusion of this disposition review, the parties agreed that the child C.B. should be returned to Nova Scotia. L.M. consented to C.B.’s placement with the Agency to expedite his return. This agreement was given court approval and the Order of February 7, 2007 issued. [10] The following people testified at the disposition review hearing: Ms. Noelle Holloway, Mr. John Janega, Ms. Jane Gillespie, Ms. Marilyn MacNiel and L.M.. Ms. Lisa Fraser-Hill, the children’s representative, advised the court of the children’s wishes. Noelle Holloway [11] Noelle Holloway stated that Marilyn MacNeil was the original protection worker assigned to the file. Ms. Holloway assumed carriage of the file as of July 4, 2006 when Ms. MacNeil took another position within the agency. Ms. Holloway advised that it took her approximately eight weeks to review and become comfortable with the file. [12] Ms. Holloway reviewed the children’s status for the court. She advised that K.B. had actually been living with T.B.’s niece, C.R.B. since approximately April 2006 despite the court order which required K.B. to live in the supervised care of her father, T.B.. Ms. Holloway stated that K.B. wished to continue to reside with C.R.B.. Ms. Holloway indicated that she spoke with K.B. approximately twice per month. [13] Ms. Holloway stated that C.B. did live in the supervised care of T.B. until September 13, 2006, with sporadic absences at various times during the summer. On September 13, T.B. and C.B. became embroiled in an altercation and the police were called. T.B. left the home and made arrangements for C.B. to live temporarily with his common-law partner’s sister, S.W.. Ms. Holloway indicated that she and C.B. communicated approximately once month. [14] Ms. Holloway advised that on October 18, 2006, the children were apprehended by the [...] Agency. K.B. was placed in the supervised care of C.R.B., who became an approved foster parent for K.B.. C.B. was placed in an approved foster home. Services were put into place for T.B.. The Order was granted on six-month temporary care and custody basis. [15] Ms. Holloway advised that C.B. initially stated that he wanted to live in [...], but by January 2007 was adamant that he wanted to return to Cape Breton to live with his mother. If C.B. was to return, Ms. Holloway stated that the Agency would stay involved to facilitate access between C.B. and K.B.; to offer services to L.M. in the management of adolescent behaviours; and to advise of community services and recreational services available for C.B.. [16] Ms. Holloway confirmed that communication was difficult with the [...] Agency, T.B., and the children. She stated this difficulty resulted from time differences, Ms. Holloway's case load, Ms. Gillespie's case load, vacation times and court appearances. [17] Ms. Holloway indicated that the [...] Agency wanted the supervision order from Nova Scotia dismissed as the [...] Agency wanted to assume sole responsibility for K.B. and C.B.. Ms. Holloway indicated that the Agency was in agreement and as result was seeking an order dismissing the Nova Scotia proceedings. [18] Ms. Holloway reviewed the various concerns that L.M. had articulated about the plan to have T.B. parent the children in Alberta. [19] Ms. Holloway discussed the role of the Agency. She stated that it was the Agency’s responsibility to receive and collect information, to investigate concerns, and to be proactive in the management of the file given the Nova Scotia supervision order. [20] Ms. Holloway was questioned about document entitled “Information Consolidation” which the Agency had received from the [...] Agency. This document detailed the [...] Agency’s involvement with C.B. and K.B. from February to October 2006 and also referenced B.R.W.’s child welfare history. This document contained the first notice to the court and L.M. of the [...] Agency’s concerns. [21] The Information Consolidation contained the following paragraph: The initial referral to [...], through the Interprovincial Coordinator, was for parental home assessment to be completed, but before that happened the matter appeared in court in Nova Scotia and the children were placed with their father, T.B. and his common law partner B.R.W. despite the concerns about her extensive child welfare history in [...]. The original request was made by phone on January 12, 2006 and then followed up by letter on January 23, 2006 by the Children’s Aid Society of Cape Breton Victoria. Apparently the courts in Nova Scotia were made aware of this and yet the order was granted on an interim basis. The outcome resulted in an out of province courtesy Supervision Order from Cape Breton-Victoria. K.B. and C.B. were subjects of the Supervision Order. [22] During Ms. Holloway’s cross examination, it became apparent that the Agency had been aware of the extensive child protection history involving T.B.'s partner prior to November 2006. Ms. Holloway was not able to identify when the Agency became aware of the protection history, but confirmed that this information had been known prior to Ms. Holloway coming on board on July 4, 2006. Ms. Holloway identified letter dated February 7, 2006 which summarized some of B.R.W.’s child protection history. [23] Ms. Holloway could not explain why B.R.W.’s child protection history had not been disclosed to the court nor to L.M.. Ms. Holloway confirmed that she would have disclosed the information. Ms. Holloway stated that B.R.W.’s child protection history was sizable, spanning from 1992 to 2004. Ms. Holloway confirmed that the information received from the [...] Agency indicated that T.B.'s partner had been the subject of many interventions, although none had resulted in an apprehension. Allegations indicated chronic and severe difficulties involving domestic violence; anger management difficulties; sexual abuse between children; an inability to parent four special-needs children; neglect and filth within the home; inappropriate supervision which on one occasion resulted in one child starting fire which burned down the home killing another child; struggles with stress, depression, agoraphobia, new relationships, pregnancies and the difficult behaviours of the children; financial difficulties; and patterns of several moves each year. [24] Given these significant concerns, Ms. Holloway stated that she would have requested immediate and intense supervision by the [...] Agency. Unfortunately, the first investigation carried out by the [...] Agency through Ms. Jamie Adams took place on March 27, 2006 approximately six weeks after the children had moved to Alberta. [25] Ms. Holloway also reviewed the two reports prepared by Ms. Jamie Adams of the [...] Agency. The first report dated March 27, 2006, was positive one. Although noting some struggles, the report nonetheless depicted healthy family which was coping appropriately with life’s challenges. T.B., B.R.W.. and the children had been interviewed for this report. [26] The second report was written four days later on March 31, 2006. This report was completed as part of an investigative tool to determine how K.B. had received black eye. L.M. discovered that K.B. had black eye from picture she saw on the internet. L.M. presented this picture to the court and the Agency who in turn requested an investigation by the [...] Agency. The second report, although dated March 31, 2006 was not received by the Cape Breton Agency until May 17, 2006. It was not provided to L.M.’s counsel or to the court until after the current disposition review commenced in November. [27] The second report provided different perspective of the B./W.s' household than the one concluded four days earlier. The household was dysfunctional. B.R.W. had lost control, threw an ornament and struck K.B. in the eye. The report confirms the significant stressors and conflict within the B./W. household. Issues included the small size of the home, the unsafe neighbourhood, financial difficulties, neglect, constant fighting within the home, and drug use by T.B.. [28] Ms. Holloway also confirmed that the Agency was aware that by March 6, K.B. was not attending school in Alberta. She further confirmed that the Agency was aware of C.B.’s sporadic school attendance until the October 2006 foster placement was made. [29] Ms. Holloway put forth the Agency’s position that C.B. and K.B. were old enough to self-protect. She stated that given their ages, C.B. and K.B. would be able to call the police or child protection authorities if they were injured or if they had safety concerns. Ms. Holloway acknowledged that the children did not self-protect in regards to the incident which resulted in K.B.’s black eye, nor in regards to other protection concerns within the B./W. household. In fact, to the contrary, Ms. Holloway confirmed that both K.B. and C.B. lied to Ms. Jamie Adams when she completed her first report and to Ms. Fraser -Hill, the children’s representative. [30] Ms. Holloway indicated that in early July she requested an assessment of C.R.B.’s home as K.B. had moved there. The [...] Agency did not respond until August 25. They advised that C.R.B. had prior child protection history and that the [...] Agency did not approve of K.B.’s placement with C.R.B.. Ms. Holloway stated the [...] Agency later changed its position as to the suitability of C.R.B.’s residence and, in fact, actively supported C.R.B. with her kinship application. [31] Ms. Holloway discussed the Agency’s Plan which contained the July 19 risk conference minutes. She agreed that the plan did not state K.B.’s new residence, nor the fact that the Supervision Order was not being followed. Further, she confirmed that the Plan was not as accurate as it might have been and agreed that the Plan was little bit thin on the details of what was happening with the children in [...]. John Janega [32] John Janega stated that he was employed with the Agency as the Unit Director in the Sydney office and that he was the supervisor of the file. [33] Mr. Janega reviewed the February 8, 2006 risk conference minutes. He confirmed the position of the Agency that once the children were placed in the care of their father, they would no longer be children in need of protective services. [34] Mr. Janega reviewed the letter from Ms. Gail Iler, Interprovincial/Appeals Coordinator dated February 7, 2006 and received by the Agency on February 9, 2006. He also reviewed the Alberta Children’s Services Investigation respecting their involvement with T.B.’s common law partner. The February letter states in part: Further to our conversation and my message, here is the information on the H. family from 1992 to 2003/4. There seems to be ongoing issues regarding neglect, physical abuse and lack of supervision all the way along. These seemed to have continued despite supportive intervention. It would appear that B.R.W. could not sustain whatever gains she made over time. [35] Mr. Janega stated that the information contained in these documents had very little impact on the decision made by the Agency as the documents contained historical references only and related, not to T.B., but rather to his common law partner. [36] Mr. Janega initially stated that he was aware of B.R.W.’s background at the time of the February risk conference. He later retracted that comment and said that he was not sure when he became aware of B.R.W.’s history. Later still, Mr. Janega stated that he didn’t remember if the B.R.W.’s child protection history was ever discussed at the risk conference of February 8. [37] In any event, Mr. Janega determined that the information concerning B.R.W. was simply not germane to the decision which the Agency made. Mr. Janega stated that he did not harbour any fears about T.B.’s ability to parent notwithstanding the fact that T.B. had little past involvement with his children; the fact that C.B. and K.B. had challenging behaviours; and the fact that B.R.W. had past history with the [...] Agency. Mr. Janega found solace in the fact that the children wanted to live with their father in [...]; in the fact that the children did not want to live with their mother; in the fact that the legislation supported the principle of family; and in the fact that the Agency did not have another placement for the children. [38] Mr. Janega stated that the February risk conference notes did not mention B.R.W. history because it was not relevant point to the person who wrote the minutes. Mr. Janega could not offer any explanation as to why B.R.W. child protection history was not disclosed until after the November hearing commenced. [39] Mr. Janega was unable to recall, and was unable to offer any explanation for the many lapses in the information being presented to the court prior to November 2006 despite the fact that he was “hands on” supervisor. Mr. Janega experienced great difficulty remembering details. Jane Gillespie [40] Jane Gillespie testified via telephone conference. She stated that she graduated in June 2004 and had been employed with the [...] Agency as of April 2005. Ms. Gillespie was assigned to this file as of May 2005. Ms. Gillespie stated that the [...] Agency referred to the file as ‘the Nova Scotia dump job.” [41] Ms. Gillespie testified as to her involvement with K.B. and C.B.. She indicated that she was informed by K.B. and T.B. that K.B. had moved in with C.R.B. by the summer of 2006. She stated that initially plans had been made to transition K.B. back to her father’s care before school commenced in September. On August 22, 2006, T.B. advised Ms. Gillespie that K.B. would not be returning to live with T.B. and that he [T.B.] had “signed K.B. over to C.R.B..” [42] Ms. Gillespie stated that C.R.B. became an approved placement for K.B. even though C.R.B. had prior history with the [...] Agency. Ms. Gillespie stated that the child protection concerns were “more of concern for small children,” and K.B. was not small child. However she did note that C.R.B. had four children all under the age of ten. Ms. Gillespie confirmed that the police had advised protection workers not to attend C.R.B.’s residence alone based on January 2005 investigation at previous residence. [43] Ms. Gillespie indicated that K.B. could not return to school because of her violent outbursts and extreme abuse to staff. [44] Ms. Gillespie stated that she visited with K.B. at C.R.B.’s residence on two occasions. The first visit was on October 16 and that visit lasted approximately one hour. The second visit was two days later on October 18 and that visit was approximately thirty minutes. Ms. Gillespie was uncertain if an assessment/investigation had been completed of C.R.B.. [45] Ms. Gillespie stated that she was advised by C.B.’s assistant school principal that T.B. had made arrangements for C.B. to be cared for by B.R.W.’s sister, S.W.. S.W. had two children and her mother living with her in small residence. S.W. also had child protection history. When confronted by Ms. Gillespie that this action amounted to abandonment, T.B. stated that he was planning to enter residential treatment center for substance abuse, although T.B. denied that he had substance abuse problem. Ms. Gillespie also acknowledged that the [...] Agency “lost track” of C.B. for period of time. [46] Ms. Gillespie agreed that the Nova Scotia supervision order required the children to be in the care of T.B.. She was unable to explain why she did not immediately notify the Agency of the children’s residential changes given the order. She stated that the [...] Agency actively supported the C.R.B. placement in defiance of the Nova Scotia supervision order because of K.B.’s wishes. [47] Ms. Gillespie said that she informed both Ms. MacNeil and Ms. Holloway of the children’s circumstances in [...]: ... like there was never time where felt that things were really great in [...] and think made that pretty clear to Nova Scotia. Um, had conversations on the telephone with Marilyn MacNeil and with Noelle Holloway and we were talking very openly about you know that things weren’t great here, that T.B. wasn’t in control of K.B. and C.B. at all, um, ... [48] Ms. Gillespie indicated that the children and T.B. refused to attend counselling, and the children, and K.B. in particular flatly refused to talk to her or the in-home support worker, Ms. Holland. She stated that the children refused to attend school and the B./W. home was problematic. Ms. Gillespie was also unable to state how K.B. spent her days at C.R.B.’s home given that she was not attending school. [49] Ms. Gillespie advised that in October 2006, the children were placed in the temporary care and custody of the [...] Agency with C.B. being placed in foster home and K.B. being placed with C.R.B.. [50] Ms. Gillespie stated that she was informed that the courts in Nova Scotia were aware of B.R.W. extensive child welfare history as well as the concerns harboured by the [...] Agency. She presumed this to be correct based upon faxed letter which she had received from Ms. Gail Iler. This fax states: Please find attached referral for courtesy supervision from Children’s Aid Society Cape Breton Victoria. This request originally came to us from home assessment on the father’s home to see if it was suitable for the children. referred that onto Pat Mosher for parental home assessment. Before that happened the matter appeared in court in Nova Scotia and the children were placed with the father and his common law spouse despite our concerns about the common law extensive child welfare history. They knew all of that and still the order was granted on an interim basis. [51] Ms. Gillespie stated that K.B. absolutely refused to return to T.B.’s home or to Nova Scotia, and threatened to run away if she was forced to do so. Ms. Gillespie stated that C.B. initially refused to return to Nova Scotia and threatened to run away if he was forced to do so. Ms. Gillespie acknowledged that C.B. now wants to return to live with his mother in Nova Scotia. [52] L.M., 38 years of age, reviewed her Affidavit dated February 7, 2006. She discussed the history of her relationship with T.B. and T.B.’s sporadic access with K.B. and C.B.. She spoke about her concerns regarding the children’s placement with T.B. in [...]. L.M. stated that if she knew about B.R.W.’s child protection history she would never have consented to the children moving to Alberta with their father. [53] L.M. reviewed her relationship with the children. She indicated that K.B. was difficult, defiant child who did not like to follow reasonable house rules. She discussed the issues surrounding the conflict in her home and explained the incident which led to the intervention of the Agency in December 2005. She denied any physical or sexual abuse of the children, and noted that there was no physical evidence to support the allegations of abuse. [54] L.M. advised of interventions which she had put into place for the children over the years including an anger management program for C.B., and counselling for the children with Child and Adolescent Services. She also stated that she had taken counselling in the past and was currently participating in individual counselling upon the Agency’s recommendation. L.M. discussed the educational needs of the children and reviewed how she attempted to address those needs. [55] L.M. detailed the efforts she made to care for the children while they were in Alberta including phone calls to the children, to their schools, and to the child protection workers in Nova Scotia and Alberta. L.M. became increasingly frustrated following the children’s move to [...] because the children were not accepting services and were not attending school. She felt that neither agency was responding appropriately. L.M. stated that she ultimately was the person who located C.B. during the time that he was missing while living in [...]. [56] L.M. detailed the negative events which occurred in the lives of the children since their move to [...]. She reported viewing K.B.’s website and seeing sexually provocative and inappropriate photographs which K.B. had posted of herself. Other photographs showed K.B. drinking in bar, despite being under aged. She also viewed C.R.B.’s “racy” website. [57] L.M. stated that she wants K.B. to be returned to Nova Scotia as she fears for her safety and well being in [...]. She wants C.B. to be returned to her care. Marilyn MacNeil [58] Marilyn MacNeil stated that although she had been employed with the Agency for twenty years, she had only assumed the role of protection worker in December 2005. She advised that the M./B. file was her first child protection file. She said that she met extensively with her supervisor, Mr. Janega as she “was trying to make sure [she] didn’t do anything wrong” and that she “wanted to do very good job.” [59] Ms. MacNeil advised that she was not that familiar with the provisions of the Children and Family Services Act. Ms. MacNeil stated that she did not know what the words “paramount consideration” meant until Ms. MacInnes clarified the definition during cross examination. [60] Ms. MacNeil reviewed the file history for the court. She stated that when T.B. indicated his interest in parenting the children after the protection application had been filed, Ms. MacNeil contacted the [...] Agency to request an in-depth home assessment at Mr. Janega’s suggestion. [61] Ms. MacNeil advised that she was contacted by Ms. Gail Iler on January 23, 2006 in response to the Agency’s request for information about T.B. and T.B.’s common law partner, B.R.W.. In lengthy conversation, Ms. Iler advised that B.R.W.. had an extensive and serious child welfare history in [...]. In her diary, Ms. MacNeil noted that Ms. Iler used the following words to describe B.R.W. history: “looks awful,” “neglect all over the place,” “young baby died in fire,” and “what mess.” [62] Ms. MacNeil confirmed that the letter from Ms. Iler and the document entitled “Investigation of the Alberta Children Services Child Protection Services” concerning B.R.W. arrived at the Agency as one package on February 9, 2006. Ms. MacNeil stated that everything in the written reports had been discussed with Ms. Iler by telephone. [63] Ms. MacNeil indicated that she discussed the contents of the documents and the contents of her earlier telephone conversation with Mr. Janega. Mr. Janega told Ms. MacNeil that “[i]t wasn’t B.R.W. that we were looking at. It was T.B. that needed to protect his children. It was his responsibility to protect his children.” Mr. Janega told Ms. MacNeil to file the material that she had received from [...]. [64] Ms. MacNeil stated that she sent an e-mail to Ms. Iler confirming that supervision order had been granted in favour of T.B.. In her reply, Ms. Iler expressed shock that the children had been placed in the care of their father given B.R.W. child protection history. Further, Ms. MacNeil indicated that she cancelled the request for home assessment from the [...] Agency upon Mr. Janega’s instruction. She sought biweekly supervision visits from the [...] Agency. Ms. MacNeil did not assume proactive role in the management of the case. [65] Ms. MacNeil confirmed that the wishes of the children were significant factor in the Agency’s decision to place the children with their father. Ms. MacNeil stated that the Agency did not really pursue any placement other than that of T.B.. Ms. MacNeil said that the resource issue did not play factor in the Agency’s decision making. [66] Ms. MacNeil agreed that it was the policy of the Agency to have its employees transcribe all hand written notes onto the computer in running file fashion. She acknowledged that it was usual practice to disclose the Agency’s running file to opposing counsel. [67] Ms. MacNeil agreed that despite the policy, she did not transcribe the notes of her January 23 conversation with Ms. Iler onto the computer running file. Ms. MacNeil agreed that the information provided by Ms. Iler was “important”, “serious” and “explosive”. Ms. MacNeil wasn’t sure why she didn’t transcribe the information. She gave three possibilities for her failure: [I] she was learning the system; [ii] she wasn’t sure in which section she should place the information; and [iii] the information was confidential to B.R.W.. Ms. MacNeil confirmed that she spoke to Mr. Jonega about her concerns, but she didn’t “remember exactly what he said there...” [68] Ms. MacNeil confirmed that she did not mention B.R.W. child protection history in the two affidavits which she filed with the court following her conversation with Ms. Iler. She likewise confirmed that she did not mention B.R.W. child protection history in the February 8, 2006 risk conference minutes despite being “absolutely positively sure” that this history had been discussed. [69] Initially Ms. MacNeil was unsure who typed the minutes from the risk conference, but later recalled that she did. Ms. MacNeil confirmed that she sought help in the preparation of the minutes from either Mr. Jonega or Ms. Aylward. Ms. MacNeil was unable to recall the advice that she was given. [70] Ms. MacNeil confirmed that she was aware that T.B. had limited parenting experience with K.B. and C.B.; that T.B. had history of addictions; and that K.B. and C.B. exhibited many behavioural and educational challenges. Ms. MacNeil also confirmed that she spoke with T.B.’s brother who lived in [...] who opined that the allegations made against L.M. were ridiculous and that he could not see the placement of C.B. and K.B. with T.B. lasting three months. [71] Ms. MacNeil agreed that she had concerns about T.B.’s ability to parent C.B. and K.B. even before they left for [...]. She noted that T.B. did not know that certain issues were nonnegotiable with children; that T.B. had failed to ensure the children attended school on one occasion while in [...]; and that T.B. failed to take K.B. to doctor when the circumstances required. Further T.B. was unable to control some of the wilful and defiant behaviour of the children. Ms. MacNeil confirmed that she did not provide any of these facts to the court in the affidavits which she filed. Ms. MacNeil was unable to provide an explanation for her failure to do so. Ms. MacNeil did acknowledge however that on February 15, she sent an e-mail to Ms. Iler which stated in the last line: “In the time that did spend with T.B. and his children do believe that problems with parenting his adolescent children will arise.” [72] Ms. MacNeil was questioned about the meaning of some of her hand written notes from February entry which stated in part: “What we have to do, put it down how she is likely going to go along with, that’s how you get out of it quickly.” Ms. MacNeil was unable to recall to what these words referred. They were written around the time of the February risk conference meeting. Included in what appears to be comments from the risk conference meetings are the words “Cut girl loose. Whatever the boy wants we will support.” [73] Ms. MacNeil denied that the failure to disclose was related to concerted effort on behalf of the Agency to keep the negative information about the [...] placement from the court and L.M.. Ms. MacNeil recognized that the information would be important to the court and to L.M.. Ms. MacNeil could not explain why the information was not disclosed and indicated that she “never really thought about it.” [74] Ms. MacNeil stated several times in her evidence that it was her understanding “that everything, you know, was there;” and that she understood that “everything was in the risk;” and “that everyone had the information.” Ms. MacNeil was unable to state why she had come to these conclusions given the absence of disclosure in the computer running file, the affidavits, and the risk minutes. [75] Ms. MacNeil reviewed her hand written notes which referenced telephone call which she had received from Ms. Iler on March 8, 2006. This entry states: “Call from Gail Iler, wants additional information, can’t believe the judge would send the kids...” Ms. MacNeil confirmed that Ms. Iler requested an explanation as to why the Nova Scotia court would send K.B. and C.B. to Alberta with their father in the face of the extensive child welfare history of B.R.W.. Ms. MacNeil stated in response: basically stated that couldn’t explain how the whole thing happened, like ...” and then don’t know how to explain it to you but, she had questions and things that couldn’t explain or answer, um....” Ms. MacNeil then suggested that Ms. Iler contact her supervisor Mr. Jonega. Ms. MacNeil did not follow up with Mr. Janega. [76] Ms. MacNeil confirmed that it was clear to the Agency that things had unravelled in [...] by the beginning of June 2006, yet no plans were put into place to return the children to Cape Breton in keeping with the agreement reached in February 2006. [77] Ms. MacNeil, like Ms. Holloway found communication with the [...] Agency, T.B., K.B. and C.B. to be problematic at times. She confirmed that Ms. Jamie Adams was not cooperative and at one point stated in reference to report “you’ll get it when you get it.” Lisa Fraser-Hill [78] Lisa Fraser-Hill put forth the position of K.B. and C.B.. She confirmed that C.B. wished to return to Cape Breton to live with his mother. She confirmed that K.B. had not been returning her calls, but had advised in December that she wished to remain with C.R.B. in [...] and was adamantly opposed to returning to Nova Scotia. V. ANALYSIS [79] Did the Agency fail to disclose relevant information to the respondent, L.M., and to the court? [80] Section 38(1) of the Children and Family Services Act provides for mandatory disclosure by the Agency subject to privilege claim: Disclosure or discovery 38 (1) Subject to any claims of privilege, an agency shall make full, adequate and timely disclosure, to parent or guardian and to any other party, of the allegations, intended evidence and orders sought in proceeding. [81] During the course of the hearing, various Agency employees admitted that they made an error in failing to disclose relevant information in the Agency’s possession to L.M. and to the court. Given the breath and extent of the “error”, it is necessary to review this issue in further detail. [82] In Canadian Child Welfare Law, 2nd ed, 2004, Vogl and Bala discussed the duty upon protection agencies to disclose. After reviewing R. v. Stinchcombe 1991 CanLII 45 (SCC), [1991] S.C.R. 326, the authors state at pp 53 and 54: Since Stinchcombe, however, the obligation on Crown prosectors is clear. Further there have been growing expectations that child protection agencies will also provide disclosure of all information that they have gained in the course of an investigation and involvement with family. Since the Supreme Court has also held that child protection proceedings must be conducted “in accordance with the principles of fundamental justice,” child protection agencies must provide disclosure of information that they have collected to ensure that parents can prepare adequately for trial. Disclosure of information to parents can impose burden on agencies, but it is necessary in order that fair trials can fully explore the needs and interests of the children involved. In 2002 decision of the Alberta Court of the Queen’s Bench, S.D.K v. Alberta, Justice Bielby ruled that s. of the Charter requires child protection agency to provide full disclosure of “all relevant information in [its] possession.” The only material that can be withheld is information relating to the identity of persons who have made an initial confidential report of abuse, and information which in the opinion of the agency “may potentially harm child’s physical, mental or emotional health to degree that such harm outweighs the entitlement of his or her parents to disclosure.” Any material that the agency decides to withhold is to be specifically listed by the agency and court may be asked by parents’ counsel to rule upon whether or not the agency is justified in withholding it. The courts’s decision also required the agency to seek out information and documents that are not in its files, but to which it is entitled (in this case, the notes of psychologist who conducted tests on the child), and share it with the parents. While it may be argued that the decision is not strictly binding outside of Alberta, the principles enuciated in the S.D.K. v. Alberta decision are increasingly reflected in rules and practice directions governing child protection matters throughout Canada. [82] In Children’s Aid Society of Kingston (City) Frontenac (County) v. S.(J.M.) 2004 CarswellOnt 883 (Ont.Ct.J), Robertson J. reviewed the Society’s obligation to provide “prompt, even handed disclosure” to ensure justice prevails at paras and 9: The initial post-apprehension hearing and pleadings did not disclose the society's in-house disagreement of opinion concerning C. There was no internal follow-up within the agency to review the apprehension crisis and new plan. The power to remove child especially without warrant is grave remedy and must be carefully monitored. In Winnipeg Child and Family Services v. K.L.W., supra, at paragraph [122], the Supreme Court described how procedural fairness through full and fair disclosure is meant to counter-balance the power of the society to apprehend children in an emergency situation: ... the seriousness of the interests at stake demands that the resulting disruption of the parent-child relationship be minimized as much as possible by fair and prompt post-apprehension hearing. In order to be fair, the hearing must involve reasonable notice with particulars to the parents, as well as an opportunity for them to participate meaningfully in the proceedings ... ... Full and frank society disclosure is necessity in child protection matters for justice to prevail. Fair disclosure is not new concept. [See Note below] This includes evidence helpful to parent defending protection application. The court should not read between the lines or fill gaps in the chronology. The agency should clarify whether it initially made mistake or changed plan on whim. The mother concluded that the society betrayed her. The society's U-turn was unfair to the mother and the child. Although child protection matters wear shroud of confidentiality, this privacy is to protect the child, not to protect the society from scrutiny. The society owes the mother an explanation. [83] have also reviewed M.O. v. The Director of Child Welfare for the Province of Prince Edward Island 764 A.P.R. 147 (C.A), S.D.K. v. Director of Child Welfare (Alta) et al., supra, and C.F.S. v. E.I. (2005), 2005 YKCA (CanLII), 213 B.C.A.C. 78 (Yuk.CA). [84] The Agency breached its obligation to the court, to K.B. and C.B., and to L.M. in failing to provide prompt and balanced disclosure which would enable the court to act in the children’s best interests and which would provide L.M. with fair hearing and an evidentiary base upon which to make informed decisions. The failure to provide prompt and balanced disclosure was evident when the Agency: a] omitted to make any entry in the computer generated running file of the [...] Agency’s child protection concerns involving B.R.W., which concerns spanned twelve years and involved chronic neglect issues, including the death of child, and sexual abuse issues. The Agency was aware of this information as of January 23, 2006. Disclosure was not forthcoming until November 2006; [b] omitted to make any reference to the extensive child protection concerns involving B.R.W. in any Agency affidavit filed after January 23, 2006 including the February supplemental affidavit purportedly filed by Ms. MacNeil to provide the court with relevant information which she had inadvertently omitted to record in her first affidavit; [c] omitted to make any reference to the extensive child protection concerns involving B.R.W. in the February 8, 2006 risk conference minutes despite the fact that these concerns were addressed during the conference; [d] omitted to make any reference to the extensive child protection concerns involving B.R.W. in the Agency’s Plans; [e] omitted to make any reference to the extensive child protection concerns involving B.R.W. during any of the court appearances prior to November 2006; [f] omitted to make any reference to the child protection concerns involving T.B. and the children which were observed by Ms. MacNeil prior to the children leaving for Alberta in any affidavit, risk conference minutes, Agency plan, or at any court appearance prior to November 2006; [g] omitted to make any reference, in the Agency Plan of August 2006 that K.B. had stopped residing with T.B. as of April 2006 and that C.B. had been living with people other than T.B. prior to leaving T.B.’s residence for final time in September 2006. In fact the Plan furnished erroneous information by proposing that the children remain in the care and custody of the Respondent, T.B.,..” when in fact K.B. was not residing there; [h] omitted to disclose, to any significant degree, the serious problems which quickly developed once the children arrived in [...] as detailed by Ms. Gillespie to both Ms. MacNeil and Ms. Holloway which problems included: constant fighting and conflict within the B./W. home, lack of supervision and neglect, an inability to manage anger, substance abuse, the over crowded home and the dangerous neighbourhood where the home was situate; and [i] omitted to disclose the second home assessment completed by the [...] Agency prior to November 2006. [85] L.M. forcibly argued that by their failure to disclose, the Agency “actively misled the Court and engineered that the children would be removed from Nova Scotia” and that this failure to disclose was “both inexplicable and inexcusable.” In response, the Agency denied any bad faith, and stated that the failure to disclose was unintentional and coincidental. [86] L.M. has levelled strong accusation against the Agency. She therefore bears the burden of proof, which although based upon civil standard is nonetheless heavy onus given the nature of the allegation. find that L.M. has succeeded in her argument for five reasons. [1] First the Agency did not provide any plausible explanation for its failure to disclose. Ms. MacNeil’s responses of “I don’t know” and “I can’t explain” and “I thought everyone knew” are incredulous. Mr. Janega’s lapses in memory and recollection changes are likewise unconvincing. [93] Second, find that the Agency was aware that B.R.W.’s child protection history should have been disclosed. If the Agency did not believe that B.R.W. history was relevant, it would not have sought the information in the first place. Further if the Agency really believed that the information was not relevant, Ms. MacNeil would not have had difficulty responding to Ms. Iler’s email and telephone demands to explain why the court would allow the children to be placed in the supervised care of their father in Alberta given B.R.W. history. Instead of answering this question directly, Ms. MacNeil stated that the situation was complicated and that Ms. Iler would have to speak to her supervisor, Mr. Janega. At no time did Ms. MacNeil or the Agency advise Ms. Iler that B.R.W. child protection history had not been disclosed to the courts. [94] Third, the Agency’s failure to disclose spanned an approximate nine month period commencing January 23, 2006. During this time frame, the Agency was presented with many opportunities to disclose with court appearances held on February 9, March 31, April 20, April 26, and August 3. L.M. consistently raised child welfare concerns which have, for the most part, been proven accurate. The Agency should have, and easily could have, advised the court and L.M. on these occasions. Instead the Agency was silent. The Agency mislead the court and L.M. by its silence and by documentation which was not complete, nor balanced. [95] Fourth, the Agency went to great lengths to ensure negative information concerning the B. plan did not reach the court or L.M.. do not accept that it was coincidental that the only written documentation of B.R.W. child protection history was found in Ms. MacNeil’s hand written notes in her diary, which diaries are typically not subject to disclosure. The information was not placed in documents which are subject to disclosure, including the running file, the minutes of the risk conferences, and affidavits. The Agency’s Plan did not even mention that K.B. was no longer living with T.B. in defiance of the court order. The Plan further did not mention the second report of Jamie Adams dated March 31 which the Agency had in its possession as of May 2006. The Agency was also aware of K.B.’s inappropriate web site. Yet the serious nature of these problems was not reported for many months. do not accept that this egregious failure to disclose could be anything other than intentional and deliberate. The Agency determined the contents of its affidavits, the risk conference minutes and the Agency Plans. The Agency reviewed and signed these documents. [4] Fifth, Ms. MacNeil’s and Mr. Janega’s evasiveness during cross examination was troubling. do not find them credible. [97] In summary find that the Agency did indeed mislead the court and L.M.. It remained silent and provided affidavits and other documents which failed to disclose the true circumstances confronting the children. find that the only plausible reason for so doing was to ensure that the court accepted the Agency’s plan to have the children placed in T.B.’s care in [...]. The Agency knew that its plan would be in jeopardy if the court was made aware of B.R.W. child protection history and of the true circumstances facing the children. The Agency made decision that the children should be with their father, and by their failure to disclose made it impossible for this court to properly assess the best interests of the children. [98] What is the remedy? Civil remedies such as dismissal of the action, or an order compelling the children to be returned to L.M. without addressing the statutory requirements are not appropriate orders. The court must be concerned with the best interests of the children in any decision. Therefore the only possible relief in the circumstances is one of costs . Before consider cost award, require written submissions from both parties. [99] What is the proper disposition order in respect of the children, C.B. and K.B.? [100] In Children’s Aid Society of Halifax v. C.V. and L.F. 2005 NSCA 87 (CanLII), the Nova Scotia Court of Appeal discussed the purpose of review hearing at paras and 9: review hearing is not an appeal or review of the original finding that the child was in need of protective services, which finding is assumed to have been properly made. On review, the issue is whether there continues to be need for protection order, taking into account the changing needs of the child and the child's family. The court must consider whether the circumstances which prompted the original order still exist and whether the child continues to be in need of state protection. In so doing, the court may consider circumstances that have arisen since the time of the first order. These matters were canvassed in Catholic Children's Aid Society of Metropolitan Toronto v. M.(C.), 1994 CanLII 83 (SCC), [1994] S.C.R. 165, where L'Heureux-Dubé wrote for the Court, at p. 200: The examination that must be undertaken on status review is two-fold examination. The first one is concerned with whether the child continues to be in need of protection and, as consequence, requires court order for his or her protection. The second is consideration of the best interests of the child, an important and, in the final analysis, determining element of the decision as to the need of protection. The need for continued protection may arise from the existence or the absence of the circumstances that triggered the first order for protection or from circumstances which have arisen since that time ... (Emphasis added) The "status review" to which Justice L'Heureux-Dubé refers is the Ontario child welfare equivalent of our review hearing. [101] The statutory requirements which have reviewed include the preamble and ss. 3(2), 22 (2), 37, 45 (3), and 46 of the Children and Family Services Act. [102] T.B. is not seeking C.B.’s return. C.B. wishes to return to live with his mother and L.M. wishes to have C.B. live with her. The Agency advised in its summations that it now supports C.B.’s return to Nova Scotia, but seeks an order placing C.B. in its temporary care and control. [103] now must apply the two stage test articulated by the Court of Appeal to C.B.. The original protection finding was made pursuant to s. 22(2) (k) of the Act in respect of L.M.. Given the position of C.B. and L.M., arguably the s. 22 (2) (k) grounds for protection finding no longer exists. While this may be true, must look to C.B.’s changing circumstances and must operate in his best interests given the factors which exist today to determine if C.B. remains child in need of protective services as it relates to L.M.. [104] find that C.B. in fact remains child in need of protective services pursuant to s. 22 (2) (b) of the Act as it relates to L.M.. There is a substantial risk that C.B. will suffer physical harm caused by L.M.’s inability to supervise and protect C.B. adequately. [105] find that L.M. has many problems which have yet to be resolved and which create substantial risk to C.B., especially given C.B.’s challenging behaviours and defiant personality. find that L.M. is highly impulsive. L.M. frequently reacts in negative and impulsive fashion when faced with stresses and crises. L.M. becomes emotional, agitated, and argumentative when the children present negatively. She is unable to control her anger and emotions. She is unable to control her actions and reactions. This inability leads to substantial risk to C.B.. [106] To her credit L.M. took the one service suggested by the Agency which was counselling. find however that given L.M.’s history and circumstances, more resources and services must be put into place so that L.M. can effectively and appropriately manage her anger, stress and emotions. L.M. requires professional intervention. Services to be offered shall include intensive psychotherapy with psychologist or psychiatrist, anger management counselling and individual counselling. These services will be implemented immediately. In addition, L.M. will cooperate with the parental capacity assessment to be completed by Dr. Landry. [107] must now turn to the second stage of the review hearing test. find that C.B.’s circumstances have changed since the last disposition order. C.B. was apprehended by the [...] Agency and placed in its temporary care in an approved foster placement. C.B. and his father were involved in an altercation and the police were called. C.B. no longer resides with his father. T.B. is not able to care for C.B. and has no relationship with him. C.B. wants to return to live with his mother. [108] The plan for C.B.’s care as stated in the supervision order dated August 3, 2006 is not being applied now and has not been applied for some time. [109] The least intrusive alternative that meets C.B.’s best interests at the present time is to have C.B. returned to Nova Scotia and placed in the temporary care and control of the Agency with access to L.M. and to have services put in place for C.B. and L.M.. Services to be put into place for C.B. include educational services, counselling services, anger management services, and recreational programs. C.B. shall also participate in psychological assessment so that the court receives comprehensive picture of his needs. [110] It is hoped that with intensive services, L.M. and C.B. will be reunified as healthy family unit. [111] L.M. seeks K.B.’s return to Nova Scotia while the Agency seeks an order dismissing the protection application against K.B.. T.B. does not seek K.B.’s return. [112] now must apply the two stage test to the child K.B.. In respect of the first stage of the test, find that K.B. remains child in need of protective services pursuant to s. 22 (2) (b) and 22 (2) (k) of the Act The factors which identified in reaching my protection finding in respect of C.B. apply to K.B.’s circumstances as well. As K.B. refuses to return to the care of either parent, s. 22 (2) (k) of the Act applies. reject the submission of the Agency that K.B. is not in need of protective services given the involvement of the [...] [113] In examining the second stage of the test, find that K.B.’s circumstances have changed since the issuance of the last disposition order. Further the plan which the court adopted for K.B.’s care in August 2006 is not being carried out and has not for some time. K.B. does not live with her father. She resides with C.R.B. in small accommodations with C.R.B.’s young children. [114] C.R.B. has prior child protection history with the [...] The [...] Agency did little to investigate C.R.B. and her circumstances. The two visits which Ms. Gillespie made were not investigative in nature. The [...] Agency went from position of strong disapproval of the C.R.B. placement to strong approval without an assessment confirming that C.R.B.’s circumstances had changed. [115] The objective evidence confirms that the C.R.B. placement is not in K.B.’s best interests. K.B. does not attend school while in C.R.B.’s care. K.B. does not receive counselling while in C.R.B.’s care. K.B.’s behaviour has not improved since she has been in C.R.B.’s care as she continues to have extreme angry outbursts and continues to be defiant. K.B. has web site on which she posted sexually inappropriate photos of herself and which photos also show her drinking in bar while underage. C.R.B.’s web site is also racy and inappropriate. [116] am aware of K.B.’s wishes and her age. am aware that K.B. has threatened to run if the court attempts to move her from C.R.B.’s care. have carefully considered these factors. However, threat to run is not an appropriate reason to justify the court making placement decision. Section (2) of the Act lists the factors which the court must consider when acting in the best interests of children. These are the factors which have considered in conjunction with the other relevant statutory requirements. K.B.’s wishes are not the determinative factor, especially given K.B.’s lack of emotional maturity and her current inability to act in her own best interests. K.B. is confused child who faces multitude of problems. [117] find that the least intrusive alternative that is in K.B.’s best interests is for her to be returned to the jurisdiction of this court and to be placed in the temporary care and custody of the Agency with services and access to be provided. Services to be put into place for K.B. include educational services, counselling services, anger management services, and recreational programs. K.B. shall also participate in psychological assessment so that the court receives comprehensive picture of her needs. recognize that K.B. is more defiant than C.B., however such only increases the need for intense services. CONCLUSION [118] In summary, I find that the Agency failed to disclose relevant information to the court and L.M. in an effort to ensure that the children would be permitted to live with their father in Alberta. As result, the ability of the court to act in the children’s best interests was severely compromised. Costs will therefore be considered by the court after counsel have had an opportunity to prepare submissions. [119] The children continue to be in need of protective services. The plan adopted by the court in August 2006 was not applied. There have been significant changes in the circumstances of the children and of the respondents. It is in the best interests of the children to be returned to Nova Scotia and placed in the temporary care and control of the Agency with access, and with extensive services which will be paid by the Agency. [120] Mr. Crosby will draft the order. Justice Theresa M. Forgeron [121] L.M. has advised that she is not seeking costs for three reasons. First, she is represented by Nova Scotia Legal Aid and did not personally incur costs. Second, she prefers that the Agency’s resources are spent on services for families and children in need. Third, she feels that the decision stands as sufficient deterrent to the Agency’s blameworthy conduct. As result, no costs are awarded.

Two teenaged children were placed in the care of the father, who resided in Alberta, under the joint supervision of the Nova Scotia and Alberta agencies. Unknown to the court, the father's common law partner had an extensive child protection history. There were significant problems in the father's home, resulting in the older child removing herself from her father's care and going to live with an adult relative who also had a child protection history and the younger child disappearing for a time until the mother, who lived in Nova Scotia, finally tracked him down. The mother now sought the return of both children. The Nova Scotia agency sought to have its involvement terminated, arguing that both children were now old enough to self-protect. Although the younger child wished to return to the mother, the older child threatened to run away if removed from her current living situation. Children removed from the supervised care of the father and placed in the temporary care of the Nova Scotia agency with access to the mother and services to be provided to the mother and the children; the agency misled both the mother and the court by failing to disclose crucial information about the father's common law partner and the circumstances of the children once they were placed with the father and this failure was both inexplicable and inexcusable; costs are the appropriate remedy against the agency. Although the mother had completed some counseling, there was a substantial risk that both children would suffer physical harm if returned to her care due to her inability to supervise and protect them adequately. The mother continued to require professional intervention.

6_2007nssc119.txt

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2007 SKCA 24 Date: 20070302 Between: Docket: 1273 Investment Dealers Association of Canada and Wade Douglas MacBain, Karl Edward Neufeld and Frederick Henry Smith Respondents and Saskatchewan Financial Services Commission Party (Pursuant to s. 11(5) of The Securities Act, 1988) and Mutual Fund Dealers Association of Canada Proposed Intervenor Before: Lane J.A. (in Chambers) Counsel: James S. Ehmann, Q.C. and Marc Kelly for the Appellant Gregory A. Thompson for the Respondents Hugh Corbett for the Proposed Intervenor Application: From: Saskatchewan Financial Services Commission Heard: March 1, 2007 Disposition: Application Allowed Written Reasons: March 2, 2007 By: The Honourable Mr. Justice Lane Lane J.A. [1] The Mutual Fund Dealers Association of Canada (“MFDA”, “applicant” or “respondent”) seeks leave to intervene in the above stated appeal. The appellant consents to the intervention while the respondents oppose the application. The central issue on the appeal is whether the appellant Investment Dealers Association of Canada ("IDA") has jurisdiction to discipline former representatives of one of its member firms for acts done by the representatives prior to their resignation or termination. There is second issue by way of cross-appeal raised by one respondent in regard to matters of delay and abuse of process. This second issue is not relevant to this application and the proposed intervenor has no interest in this second issue. [2] The application is made pursuant to Rule 17 of The Court of Appeal Rules which provides: 17(1) Any person interested in any proceeding before the court may, by leave of the court, intervene in the proceeding on the terms and conditions the court may direct. (2) Any intervenor before the court appealed from shall be served with notice of appeal and notice of cross-appeal, if any, but shall not have the status of an intervenor on appeal unless leave to intervene is first granted by the court. (3) An application to intervene shall be made to the court on notice to all parties and other interveners in the proceeding. [3] The factors to be considered in such an application have been addressed by this Court in Hoffman v. Monsanto Canada Inc.[1] and R. v. Latimer. [4] Turning to the application for leave to intervene, begin by noting that the framework of principle governing applications of this nature was set forth by Mr. Justice Sherstobitoff in R. v. Latimer (R.W.) (1995), 1995 CanLII 3921 (SK CA), 128 Sask. R. 195; 85 W.A.C. 195 (C.A.) at pp. 196-97: In considering an application to intervene, appellate courts will consider: (1) whether the intervention will unduly delay the proceedings; (2) possible prejudice to the parties if intervention be granted; (3) whether the intervention will widen the lis between the parties; (4) the extent to which the position of the intervener is already represented and protected by one of the parties; (5) whether the intervention will transform the court into political arena. As matter or discretion, the court is not bound by any of these factors in determining an application for intervention but must balance these factors against the convenience, efficiency and social purpose of moving the case forward with only the persons directly involved in the lis. [3] Other criteria have been identified as referred to in para. of the Monsanto case but they are not applicable in the application before me. The parties have addressed their respective positions in reference to the factors set out in Latimer and Monsanto. It is common ground the issues of delay, possible prejudice, and the transformation of the court into political arena are not factors that need be considered in this application. The parties argued only the issue of whether the intervenor is already represented and protected by one of the parties (the appellant) and this is the factor argued before me. [4] The intervenor, in support of its application, filed material stating it is non-profit corporation and its members are mutual fund dealers. Its stated purpose is to regulate the mutual fund distribution industry and its members contractually bind themselves to submit to regulation by the Association. It is, as is the Investment Dealers Association, what is referred to in the industry as self-regulatory organization (“SRO”). It contends its purpose in bringing the application is to bring to the Court's attention “some of the broader policy and contextual considerations that have informed the development of the MFDA, and SRO’s in general...”.[4] It wishes to argue that it would be contrary to the advancement of the primary goals of security regulations investor protection, the promotion of fair and efficient capital markets and the harmonization of securities regulation across Canada to sustain the decision of the Saskatchewan Financial Services Commission (“SFSC”) which decision gave rise to the present appeal. [5] The intervenor does not wish to make representation on what it calls the legal or technical issue—that being the correct interpretation of the IDA rules and regulations. Nor does it wish to make representations on the policy arguments regarding the implications of the decision. [6] The intervenor applies to make representation on what it calls the structural arguments. These being the “broader policy and contextual considerations that have informed the development of the MFDA, and SRO’s in general…”[5] the need for its specialized expertise and the importance of avoiding fragmented regulatory system where current approved members are subject to the regulation by the respective SRO and former approved members are subject to the SFSC. It says the MFDA is in unique position because it is fairly new organization (created in 2001), and as such it is more clear as to how and why it was created as an SRO. The IDA, in contrast, developed differently and evolved over considerable period of time (since 1916) and different considerations influenced its development. [7] The intervenor concedes its arguments are not determinative of the issue on appeal but will be helpful to the Court in its deliberations. [8] The respondent to this application in turn argues the position of the IDA adequately represents the position of the applicant. It argues that if there are other policy considerations, the SFSC, which is party to the appeal, can make representations to assist the Court. In response to this latter argument the MFDA says the Commission is joined only because of statutory requirement and the Commission may choose to make no representations at the appeal. The respondent also argues the applicant should make first application to the SFSC rather than directly to the Court. Finally, it contends this is purely provincial matter which involves interpretation of provincial bylaws and the bylaws of the applicant may be different. If the applicant wishes to give any assistance to the appellant it is free to do so. [9] The mere fact the proposed intervenor has additional arguments to make is not determinative of the issue.[6] However, I see no prejudice to the respondent if the applicant’s proposed arguments are presented to the Court on the appeal. The applicant’s arguments should simply put the regulatory scheme in context and may assist the Court in its deliberations. The applicant’s arguments are confined to a relatively narrow issue. I am therefore prepared to allow the application for intervention with some strict conditions. [10] The issue of delay was not addressed and did not seem to be of concern but the appeal is scheduled to be heard on March 12, 2007 and the applicant does not want the appeal delayed. In order to accommodate this narrow timeframe, the applicant must have served and filed its factum on or before March 6, 2007. The respondent may file a reply if it chooses to do so on or before March 8, 2007. The parties may file and serve their material by fax in order to expedite matters. The applicant’s material shall not exceed 12 pages. The intervenor may make oral argument only if requested to do so by the Court. The matter of costs is left to the panel hearing the appeal. DATED at the City of Regina, in the Province of Saskatchewan, this 2nd day of March, A.D. 2007. [1] 2006 SKCA 132 (CanLII); (2006), 289 Sask. R. 32. [2] (1995), 1995 CanLII 3921 (SK CA), 128 Sask. R. 195. [3] Supra, note 1. [4] MFDA Memorandum of Argument at p. 10. [6] Hoffman, supra, note 1.

The applicant seeks leave to intervene in this appeal. The application is made pursuant to Rule 17 of The Court of Appeal Rules. HELD: The application for intervention is allowed on condition that it meet the filing deadline, that its material not exceed 12 pages and that it may make oral argument only if requested to do so by the Court. 1) The intervenor is a non-profit corporation and its members are mutual fund dealers. Its stated purpose is to regulate the mutual fund distribution industry and its members contractually bind themselves to submit to regulation by the Association. It contends its purpose in bringing the application is to bring to the Court's attention 'some of the broader policy and contextual considerations that have informed the development of the Mutual Fund Dealers Association (MFDA) and the self-regulatory organizations (SROs) generally. 2) There is no prejudice to the respondent if the applicant's proposed arguments are presented to the Court on the appeal. The applicant's arguments should simply put the regulatory scheme in context and may assist the Court in its deliberations. The applicant's arguments are confined to a relatively narrow issue.

2_2007skca24.txt

J. 2003 SKQB 58 Q.B.G. A.D. 2002 No. 23 J.C. R. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF REGINA BETWEEN: VICTOR DANIELS, STELLA MARJORIE SEVEREIGHT and RUSSELL LAMBERT SINCLAIR PLAINTIFFS (APPLICANTS) and ATTORNEY GENERAL OF CANADA DEFENDANT (RESPONDENT) Fran Huck and for the plaintiffs (applicants) Clint G. Docken Mark R. Kindrachuk and for the defendant (respondent) Elaine Lee JUDGMENT McLELLAN J. February 4, 2003 [1] The plaintiffs apply for certification of an action under The Class Actions Act, S.S. 2001, c. C-12.01 (the “CAA”) on behalf of the following classes as set forth in paragraph 5 of the statement of claim: (a) Veterans Resident Class Any Indian person who, as defined by the Indian Act, R.S.C. 1985, c. I-5 at the time of their discharge was not informed, nor was offered some or any of the veterans benefits that they were entitled to by reason of their service in World War I, World War II or the Korean War and/or their dependants who received some or all of the veteran benefits. (b) Veteran Non-Resident Class (c) Dependent Resident Class (d) Dependant Non-Resident Class [2] The plaintiff, Victor Daniels (“Daniels”), an Indian as defined under the Indian Act, enlisted in the Canadian Army on October 3, 1950 and served in the Korean War. He was discharged from the army on November 3, 1953. In paragraphs and 10 of the statement of claim, Daniels makes the following allegations: 9. At the time of his discharge in November, 1953, the Plaintiff, VICTOR DANIELS, was not informed of nor was he offered any benefits that he was entitled to by reason of his service either under the Indian Act or any other relevant Act or Statute in force under the laws of Canada including the Veterans Affairs Act, The War Veterans Allowance Act, The Pension Act and The Canadian Soldier Veterans Settlement Act or other applicable legislation. 10. The Plaintiff, VICTOR DANIELS, alleges that he was entitled to the full benefits available from the Crown payable to discharged veterans and that veterans who were Indians did not receive any or any full benefits for their service either in World War II or in the Korean War as did non-aboriginal veterans. [3] The plaintiff, Russell Lambert Sinclair (“Sinclair”), is resident of Alberta who claims individually and as representative subclass plaintiff who is non-resident of Saskatchewan on behalf of Indian war veterans residing outside the Province of Saskatchewan. [4] Sinclair enlisted in the Canadian Armed Forces in February, 1951 and was discharged in March 1972. He served in the Korean War between 1951 and 1953. In paragraphs 12 and 13 of the statement of claim Sinclair makes the following allegations: 12. At the time of his discharge in March of 1972, the Plaintiff, RUSSELL LAMBERT SINCLAIR, was not informed of nor was he offered any benefits that he was entitled to by reason of his service either under the Indian Act or any other relevant Act or Statute in force under the laws of Canada including the Veterans Affairs Act, The War Veterans Allowance Act, The Pension Act and The Canadian Soldier Veterans Settlement Act or other applicable legislation. 13. The Plaintiff, RUSSELL LAMBERT SINCLAIR, alleges that he was entitled to the full benefits available from the Crown payable to discharged veterans and further that veterans who were Indians and resided outside the Province of Saskatchewan did not receive any or any full benefits for their service either in World War II or in the Korean War as did non-aboriginal veterans. [5] The plaintiff, Stella Marjorie Severeight (“Severeight”) claims she was dependant of an Indian veteran of World War II and she sues both individually and on behalf of all dependants that did not receive benefits to which they were lawfully entitled to from the Crown as dependants of Indian war veterans. NATURE OF CLAIM [6] The plaintiffs claim damages for loss of benefits and base their claims on systemic negligence, breach of trust, breach of fiduciary duty, and unjust enrichment. [7] The plaintiffs claim: (a) That they were treated differently than non-native war veterans by requiring any benefits they were entitled to receive to be administered by officials of the Department of Indian Affairs or through Indian agents assigned to the reserves of returning war veterans; (b) That the officials and Indian agents were negligent in carrying out their duties to inform the plaintiffs of their rights to receive full and complete benefits and that Indian agents in some cases misappropriated benefit funds that were properly payable to the plaintiffs. The benefits which the plaintiffs say were not paid to Indian war veterans and their dependants, include, inter alia; (a) dependant’s allowances; (b) veteran loans and grants; and (c) educational and other benefits; (c) That the Crown is vicariously liable for the wrongful and negligent acts of the agents and employees; (d) That the Crown breached its fiduciary duty and trust obligations that it owed to the plaintiffs and other Indians who served in the Armed Forces of Canada by systematically discriminating against Indian war veterans and their dependants by improperly administering benefits and in failing to properly carry out the obligation placed on the Crown to protect the rights of Indian war veterans and their dependants by reason of the relationship and duties owed to Indians pursuant to the Indian Act; (e) That the Crown has been unjustly enriched by the improper withholding of benefits due to the plaintiffs since the date of their retirement or, alternatively from 1953, the date of passage of the Crown Liability Act, S.C. 1952‑53, c. 30 and further that by reason of the unjust enrichment and resulting constructive trust, the defendant ought to make full restitution. [8] Under the CAA “class” is defined as two or more persons with common issues respecting cause of action or potential cause of action. Common issues are defined as: (a) common but not necessarily identical issues of fact; or (b) common but not necessarily identical issues of law that arise from common but not necessarily identical facts. [9] Section provides that an action shall be certified as class action if the Court is satisfied that: (a) the pleadings disclose clause of action; (b) there is an identifiable class; (c) the claims of the class member raise common issues, whether or not the common issues predominate over other issues affecting individual members; (d) class action would be the preferable procedure for the resolution of the common issues; and (e) there is person willing to be appointed as representative plaintiff who: (i) would fairly and adequately represents the interests of the class; (ii) has produced plan for the class action that sets out workable method of advancing the action on behalf of the class and of notifying class members of the action; and (iii) does not have, on the common issues, an interest that is in conflict with the interests of the other class members. [10] Certain matters are not bar to certification. Section of the CAA states: The court shall not refuse to certify an action as class action by reason only of one or more of the following: (a) the relief claimed includes claim for damages that would require individual assessment after determination of the common issues; (b) the relief claimed relates to separate contracts involving different class members; (c) different remedies are sought for different class members; (d) the number of class members or the identity of each class member is not ascertained or may not be ascertainable; (e) the class includes subclass whose members have claims that raise common issues not shared by all the class members. POSITION OF THE DEFENDANT [11] The Crown opposes the certification application on the following grounds: (a) The applicants have failed to discharge the onus on them to demonstrate that the pleadings disclose cause of action: (i) All claims brought pursuant to the Crown Liability and Proceedings Act, R.S.C. 1985, c. C‑50, as am. based on acts or omissions occurring prior to 1953 are statute barred by virtue of s. 24 of the Crown Liability and Proceedings Act or by predecessor legislation to the same effect and therefore cannot constitute cause of action; (ii) After 1953, the only liability of the Crown is vicarious, arising from the alleged actions or omissions of Crown servants and agents. There are no pleadings to support the existence of any vicarious liability; (iii) All of the claims are out of time and statute barred by virtue of The Limitation of Actions Act, R.S.S. 1978, c. L-15, as am., the Crown Liability Act, the Crown Liability and Proceedings Act, or by predecessor legislation to the same effect; (iv) Claims potentially originating from the alleged actions or omissions of any person now deceased are additionally barred by The Trustee Act, R.S.S. 1978, c. T‑23, as am., or its predecessors, and/or by The Survival of Actions Act, S.S. 1990‑91, c. S‑66.1, as am.; (v) The claims in negligence do not disclose any cause of action against the Crown or its agents; (vi) The claims of discrimination have no legal foundation either pleaded, or in existence at the time of the causes of action are claimed to have arisen, and do not disclose any cause of action against the Crown or its agents; (vii) The claims of breach of fiduciary duty do not disclose any cause of action against the Crown or its agents; (b) The applicants have failed to adequately describe an identifiable class of two or more persons who are appropriately represented by the proposed plaintiffs; (c) The applicants have failed to demonstrate that the claims of the class members raise common issues, the resolution of which will advance the litigation proposed; (d) The applicants have failed to demonstrate that class proceeding would be the preferable procedure for the resolution of the claimed common issues; (e) The applicants have failed to demonstrate that there are representative plaintiffs who would fairly represent the interests of the proposed class; (f) The applicants have not produced workable litigation plan, or demonstrated they have the resources to represent the class claimed; and (g) The plaintiffs have not demonstrated that the proposed plaintiffs do not have conflicts with the interests of the other class members. CAUSE OF ACTION [12] do not intend to deal with all of the submissions by the Crown that the plaintiffs’ pleadings fail to disclose cause of action. [13] Suffice it for me to say that although the onus is on the plaintiffs, on certification application, to satisfy the Court that the pleadings disclose cause of action, it is not very high onus. [14] The test to be applied in certification applications is similar to those used in applications to strike statement of claim as disclosing no cause of action. Firstly, all allegations of fact pleaded are to be accepted as true and secondly, pleadings will only be struck if it is plain and obvious that the plaintiffs cannot succeed. In my view court should be reluctant to deny plaintiff his or her day in court. [15] In Hunt v. Carey Canada Inc., 1990 CanLII 90 (SCC), [1990] S.C.R. 959, the Supreme Court of Canada pointed out: Thus, the test in Canada governing the application of provisions like Rule 19(24)(a) of the British Columbia Rules of Court is the same as the one that governs an application under R.S.C. O. 18, r. 19; assuming that the facts as stated in the statement of claim can be proved, is it “plain and obvious” that the plaintiff’s statement of claim discloses no reasonable cause of action? As in England, if there is chance that the plaintiff might succeed, then the plaintiff should not be “driven from the judgment seat.” Neither the length and complexity of the issues, the novelty of the cause of action, nor the potential for the defendant to present strong defence should prevent the plaintiff from proceeding with his or her case. Only if the action is certain to fail because it contains radical defect ranking with the others listed in Rule 19(24) of the British Columbia Rules of Court should the relevant portions of plaintiff’s statement of claim be struck out under Rule 19(24)(a) (per Wilson J. at p. 980) [16] Madam Justice Wilson continued at pp. 990-91: ... [W]here statement of claim reveals difficult and important point of law, it may well be critical that the action be allowed to proceed. Only in this way can we be sure that the common law in general, and the law of torts in particular, will continue to evolve to meet the legal challenges that arise in our modern industrial society. [17] The issue was considered in the context of certification application in Abdool v. Anaheim Management Ltd. (1995), 1995 CanLII 5597 (ON SCDC), 21 O.R. (3d) 453 (Ont. Gen. Div.). In that case Moldaver J. sitting in the Division Court stated: The principles to be applied when considering whether pleadings support legal cause of action are as follows: (a) All allegations of fact, unless patently ridiculous or incapable of proof, must be accepted as proved; (b) The defendant, in order to succeed, must show that it is plain and obvious beyond doubt that the plaintiffs could not succeed; (c) The novelty of the cause of action will not militate against the plaintiffs; and (d) The statement of claim must be read as generously as possible, with view to accommodating any inadequacies in the form of the allegations due to drafting deficiencies. (at p. 469) [18] The generous approach to be adopted on this application is specifically spelled out in s. of the CAA which provides: 7(1) The court may adjourn the application for certification to permit the parties to amend their materials or pleadings or to permit further evidence to be introduced. (2) An order certifying an action as class action is not determination of the merits of the action. [19] In Hollick v. Toronto (City), 2001 SCC 68 (CanLII), (2001), 205 D.L.R. (4th) 19, the Supreme Court pointed out, when considering the Class Proceedings Act in Ontario, that the Act should be construed generously. Chief Justice McLachlin also pointed out at pp. 28-29 that: [15] The Act reflects an increasing recognition of the important advantages that the class action offers as procedural tool. ...[C]lass actions provide three important advantages over multiplicity of individual suits. First, by aggregating similar individual actions, class actions serve judicial economy by avoiding unnecessary duplication in fact-finding and legal analysis. Second, by distributing fixed litigation costs amongst large number of class members, class actions improve access to justice by making economical the prosecution of claims that any one class member would find too costly to prosecute on his or her own. Third, class actions serve efficiency and justice by ensuring that actual and potential wrongdoers modify their behaviour to take full account of the harm they are causing, or might cause, to the public.... In my view, it is essential therefore that courts not take an overly restrictive approach to the legislation, but rather interpret the Act in way that gives full effect to the benefits foreseen by the drafters. [16] It is particularly important to keep this principal in mind at the certification stage. In its 1982 report, the Ontario Law Reform Commission proposed that new class action legislation include “preliminary merits test” as part of the certification requirements. The proposed test would have required the putative class representative to show that “there is reasonable possibility that material questions of fact and law common to the class will be resolved at trial in favour of the class”: Report on Class Actions, supra, vol. III, at p. 862. Notwithstanding the recommendation of the Ontario Law Reform Commission, Ontario decided not to adopt preliminary merits test. Instead it adopted test that merely requires that the statement of claim “disclose ... cause of action”: see Class Proceedings Act, 1992, s. 5(1)(a). Thus the certification stage is decidedly not meant to be test of the merits of the action: see Class Proceedings Act, 1992, s. 5(5) (“An order certifying class proceeding is not determination of the merits of the proceeding”); see also Caputo v. Imperial Tobacco Ltd. (1997), 1997 CanLII 12162 (ON SC), 34 O.R. (3d) 314 at p. 320, 148 D.L.R. (4th) 566 (Gen. Div.) (“any inquiry into the merits of the action will not be relevant on motion for certification”). Rather the certification stage focuses on the form of the action. The question at the certification stage is not whether the claim is likely to succeed, but whether the suit is appropriately prosecuted as class action .... [20] In very extensive and well researched brief the Crown, in addition to the arguments relating to the deficiencies in the pleadings, raised number of arguments as to why certification should be denied. [21] Among the submissions are suggestions that the plaintiffs have failed: (a) To adequately describe an identifiable class; (b) To demonstrate that the proposed claims raise common issues which will advance the litigation proposed; (c) To demonstrate there are proposed plaintiffs who would fairly and adequately represent the interests of the class; (d) To produce workable litigation; (e) To demonstrate that the proposed plaintiffs do not have any interest potentially in conflict with other class members. [22] Time does not permit me to deal with all of the submissions. The deadline for Indian War Veterans to apply for an ex gratia payment from the Crown expires on February 15, 2003. The argument on this certification application concluded on January 30. Any members of the proposed class who are eligible to make application ought to be provided with as much time as may reasonably be possible to decide whether they will make an application for the ex gratia payment or continue with litigation. The fact that do not refer to those arguments in this judgment should, in no way, be construed as suggesting that the positions taken by the Crown are without merit. find it necessary to only deal with the limitation issues raised by the Crown which, in my view, provide complete answer to the application. SHOULD LIMITATION ARGUMENTS BE DEALT WITH ON THE CERTIFICATE APPLICATION? [23] The plaintiffs suggest that the limitation arguments advanced by the defendant should not be dealt with at the certification stage but rather as the following common issues: (a) Are the claims by the class members governed by limitation periods found in The Limitation of Actions Act, R.S.S. 1978, c. L-15, as am., and/or the Crown Liability Act, S.S. 1952-53, c. 30, as am.? (b) If so, what are the applicable limitation periods and when do they commence running? [24] The plaintiffs rely on the decision of Allan J. of the British Columbia Supreme Court in Brogaard v. Canada (Attorney General), 2002 BCSC 1149 (CanLII), [2002] B.C.J. No. 1775 (QL) in support of their position. The factual underpinnings in that certification application were outlined by Allan J. as follows at paras. ¶1 ... The proposed class members are “British Columbia residents who are Same-sex Common-law Partners of Contributors who died during the Class Period”. ¶2 “Same-sex Common-law Partner” is person who was in same-sex common-law relationship with Contributor who meets the definition of “common-law partner” within the Canada Pension Plan Act, R.S.C., c. C-8 as amended (the “Act”), and includes the estate of such person who died after their Contributor partner. ¶3 “Contributor” is person who made Canada Pension Plan (“CPP”) contributions pursuant to the Act. ¶4 The proposed Class Period is between April 17, 1985 and January 1, 1998. April 17, 1985 is the date that the Canadian Charter of Rights and Freedoms (the “Charter”) came into effect. January 1, 1998 is the date that Same-sex Common-law Partners obtained the right to claim Survivors’ Pensions pursuant to legislation enacted July 31, 2000. The proposed class members claim entitlement to “Survivors’ Pensions” during the Class Period as common-law partners of Contributors. ¶5 The plaintiffs say that the defendant Crown collects CPP contributions from all working Canadians regardless of their sexual orientation, but, until July 31, 2000, it discriminated against Same-sex Common-law Partners on the basis of their sexual orientation by denying them the right to receive Survivors’ Pensions. The plaintiffs assert that by doing so, the Crown has breached its fiduciary duty to the proposed class members and has been unjustly enriched. The plaintiffs also claim that the Crown has breached s. 15(1) of the Charter .... [25] Crown counsel correctly point out that the issue before Allan J. was essentially Charter challenge to legislation enacted on July 31, 2000, attacking provision which made an amendment retroactive only to January 1, 1998. The plaintiffs were persons whose same sex partner had died before January 1, 1998, and after the enactment of the Charter in 1985. [26] In Brogaard, supra, there were number of limitations issues, including the constitutionality of various limitations periods contained within the challenged statute itself. Allan J. points out at paras. 110 and 111: ¶110 The Crown also alleges that the plaintiffs are statute-barred from receiving the Survivors’ Pensions that they seek. In my view, there are number of limitations issues, some of which are common and others that will be individual to the class members. ¶111 With respect to the Charter issues, the Crown submits that because other limitations in the Act are not challenged (specifically, ss. 60(2) and 70(1) and (2)), the resolution of the proposed common issues relating to the Charter will not advance the plaintiffs’ claims in any meaningful way. The plaintiffs challenge the applicability of those limitations to the relief they seek. Moreover, they may decide to amend their statement of claim to plead that those sections are also unconstitutional. [Emphasis added] [27] In his opinion “only if the class members succeed in this litigation and reach the bureaucratic stage of applying for individual Survivors’ Pensions, will the question of individual issues arise.” [28] In my view the circumstances of this case are different. There is no suggestion that Indian War Veterans were denied the “right” to apply for veteran’s benefits. The issue in this case is their allegation that they were not properly informed of their right to apply. [29] Another case relied on by the plaintiffs is Harrington v. Dow Corning Corp., 2000 BCCA 605 (CanLII), [2000] 11 W.W.R. 201 (B.C.C.A.). In that case the court pointed out that: ... The possibility that some claims may be barred by limitations period or that others may require the consideration of negligence by the plaintiffs or third parties, is not reason to refuse certification of the common issue. It is equally possible that the determination of the common issue will reduce the number of active claimants as well as the size of some claims. (at p. 226, para. 64). [30] It is obvious that in both cases there would certainly be number of proposed plaintiffs whose claims were within the relevant time limits in British Columbia. [31] On the other hand, if the claims of all the plaintiffs in proposed class action are statute barred, that issue ought to be decided at the very outset of certification application. It would make no sense if it were otherwise. [32] The Ontario Court of Appeal came to that conclusion in Stone v. Wellington (County) Board of Education (1999), 1999 CanLII 1886 (ON CA), 29 C.P.C. (4th) 320. In that case the plaintiff commenced an action pursuant to the Class Proceedings Act in that Province alleging that she and other members of the proposed class suffered serious personal injuries from exposure to toxic emissions from hazardous waste allegedly lying below the City of Guelph. McKenzie J. dismissed the action by reason of limitation period in the Public Authorities Protection Act. [33] The plaintiff argued in the Court of Appeal that an action brought pursuant to the Class Proceedings Act could not be dismissed solely on grounds personal to the plaintiff. The court dismissed the appeal holding that: 10 Where representative plaintiff, for reasons personal to that plaintiff, is definitively shown as having no claim because of the expiry of limitation period, he or she cannot be said to be member of the proposed class. The continuation of the action in those circumstances would be inconsistent with the clear legislative requirement that the representative plaintiff be anchored in the proceeding as class member, not simply nominee with no stake in the potential outcome. 11 For both these reasons we conclude that there is no bar to the bringing of these motions, even at the pre-certification stage of the proceedings. [Emphasis added) [Stone v. Wellington (County) Board of Education, supra, paras. 10-11]. [34] In Burke v. American Heyer-Schulte Corp., [1994] O.J. No. 141 (QL) (Ont. Gen. Div.), (1994), 25 C.P.C. (3d) 177, Montgomery J. also dismissed class action which he concluded was statute-barred. The headnote in that case reads as follows: The defendants moved for summary dismissal of the class action based on limitation defence. The plaintiff alleged that she suffered damages arising from silicone breast implants designed, manufactured and marketed by the defendants. She had the implants inserted in 1975. By 1976, she was suffering tenderness, hardening of the breasts, lumps, inflammation, fatigue, numbness, cysts, headaches, swelling in her fingers, and arthritis. The statement of claim, framed in negligence, misrepresentation and breach of warranties, was issued on September 3, 1993. HELD: The action was dismissed as statute-barred. In both tort and contract, the limitation period in Ontario is six years. The lengthy delay between the plaintiff’s awareness of the symptoms in 1976 and her suit in 1993 could not simply be due to lack of medical-legal report. There was nothing before the court to indicate that she had such report today. All the elements necessary for cause of action were manifest in 1976. [[1994] O.J. No. 141 (QL)]. LIMITATION ARGUMENT [35] The Crown argues that if any claim by the plaintiffs existed, it cannot be brought 30-60 years after the claimed entitlement to benefits arose—that all claims are statute-barred and have been so for decades. [36] The relevant sections of the Crown Liability and Proceedings Act (“CLPA”) are as follows: 3. The Crown is liable for damages for which, if it were person, it would be liable ... (b) in any other province [other than Quebec], in respect of (i) tort committed by servant of the Crown, or (ii) breach of duty attaching to the ownership, occupation, possession or control of property. 10. No proceedings lie against the Crown by virtue of subparagraph 3(a)(i) or (b)(i) in respect of any act or omission of servant of the Crown unless the act or omission would, apart from the provisions of the Act, have given rise to cause of action for liability against that servant or the servant’s personal representative or succession. 24. In any proceedings against the Crown, the Crown may raise (a) any defence that would be available if the proceedings were suit or an action between persons in competent court; and (b) any defence that would be available if the proceedings were by way of statement of claim in the Federal Court. 32. Except as otherwise provided in this Act or in any other Act of Parliament, the laws relating to prescription and the limitation of actions in force in province between subject and subject apply to any proceedings by or against the Crown in respect of any cause of action arising in that province, and proceedings by or against the Crown in respect of cause of action arising otherwise than in province shall be taken within six years after the cause of action arose. corresponding section is found in the Federal Court legislation. [37] Section 32 was first enacted in the Crown Liability Act in slightly different form. The section clearly incorporates, by reference, the Saskatchewan Limitation of Actions Act (the “LAA”) with respect to proceedings by or against the Federal Crown. The relevant sections of the LAA are the following: 3(1) The following actions shall be commenced within and not after the times respectively hereinafter mentioned: ... (h) actions grounded on accident, mistake or other equitable ground of relief not hereinbefore specifically dealt with, within six years from the discovery of the cause of action; ... (j) any other action not in this Act or any other Act specifically provided for, within six years after the cause of action arose. (2) Nothing in this section extends to an action where the time for bringing the action is by statute specially limited. [38] In two very recent decisions Mr. Justice Ball dealt with limitation periods as they apply to the Crown. Firstly, in Kaiswatum v. Attorney General of Canada and Les Oblats De Marie Immaculee Du Manitoba, 2003 SKQB 46 (CanLII), the plaintiff claimed he was physically assaulted and that he suffered loss of his traditional language and culture from 1944 until 1952 when attending residential school. He claimed the physical assaults were perpetrated by employees and staff at the residential school. The plaintiff claimed that his damages were caused by the negligence, breach of trust and breach of fiduciary duty of the Crown. [39] Secondly, in [P.G.] v. Attorney General of Canada and William Brittain and Douglas Ross, 2003 SKQB 41 (CanLII), the plaintiff claimed that he was sexually assaulted by two employees of the residential school he attended between 1974 and 1977. The plaintiff claimed the Crown was vicariously liable for the conduct of the two employees. In the alternative the plaintiff claimed damages caused by the negligence, breach of trust, and breach of fiduciary duty of the Crown. [40] In this application the Crown advances the following arguments with respect to limitation periods: 1) All claims brought pursuant to the Crown Liability and Proceedings Act based on acts or omissions occurring prior to 1953 are statute barred by virtue of s. 24 of the Crown Liability and Proceedings Act or by predecessor legislation to the same effect and therefore can not constitute cause of action; 2) After 1953, the only liability of the Crown is vicarious, arising from the alleged actions or omissions of Crown servants and agents. There are no pleadings to support the existence of any vicarious liability; 3) All of the claims are out of time and statute barred by virtue of The Limitation of Actions Act, the Crown Liability Act, the Crown Liability and Proceedings Act, as amended, or by predecessor legislation to the same effect; 4) Claims potentially originating from the alleged actions or omissions of any person now deceased are additionally barred by The Trustee Act, as amended, or its predecessors, and/or by The Survival of Actions Act, as amended. [41] In Kaiswatum, supra, Ball J. rejected the argument that Crown immunity extended to all claims prior to 1953. He reviewed the history of Crown immunity at paras. [25] Before May 14, 1953, the Crown was subject to claims for negligence pursuant to s. 19(c) of the Exchequer Court Act, which provided: 19. The Exchequer Court shall also have exclusive original jurisdiction to hear and determine the following matters:— (c) Every claim against the Crown arising out of any death or injury to the person or to property resulting from the negligence of any officer or servant of the Crown while acting within the scope of his duties or employment. [26] This liability for the negligence of the Crown’s officers or servants was expanded to include intentional torts by s. 3(1) of the Crown Liability Act which provided: 3.(1) The Crown is liable in tort for the damages for which, if it were private person of full age and capacity, it would be liable (a) in respect of tort committed by servant of the Crown, or (b) in respect of breach of duty attaching to the ownership, occupation, possession or control of property. [27] The Crown’s liability for intentional torts was confined to acts occurring after the proclamation of the Crown Liability Act on May 14, 1953 by virtue of s. 24(1), which states: 24.(1) No proceedings shall be taken against the Crown under this Act in respect of any act, omission, transaction, matter or thing occurring or existing before the day on which this Act was assented to. [28] Peter W. Hogg and Patrick J. Monahan in Liability of the Crown, 3d ed. (Toronto: Carswell, 2000) review the history of Crown liability for intentional torts at c. 6.1, pp. 108-110: (a) Crown Immunity The history of proceedings against the Crown was briefly traced in chapter 1. In the nineteenth century, the petition of right, which had become the principal means of suing the Crown, was held not to be remedy in tort. The reasoning in those early tort cases—that “The King can do no wrong”—we can now see to be misconceived, but the cases became firmly established as the law. Since no remedy other than the petition of right was available to sue the Crown in tort, the Crown became immune. (b) Early statutory reform ... Until the 1950s, Quebec was the only Canadian jurisdiction in which the Crown was generally liable in tort. However, the Federal Exchequer Court Act did impose an important measure of liability on the Crown in right of Canada. In 1887, provision was included which conferred jurisdiction on the Exchequer Court over claims against the Crown for the negligence of Crown servants, but only if the negligence occurred “on public work”. This provision, although in terms only conferring jurisdiction on the Exchequer Court, was interpreted as imposing liability on the Crown for the negligence of Crown servants on public work. Inevitably, however, the meaning of the “public work” limitation provoked litigation, and in 1938 the limitation was removed. From then until the broader reform of 1951, the Crown in right of Canada was liable for “the negligence of any officer or servant of the Crown while acting within the scope of his duties or employment”. This imposed an extensive area of liability; but it excluded torts other than negligence, and even in the case of negligence its scope was incomplete. [29] The “broader reform of 1951” to which the authors refer led to the enactment of the Crown Liability Act which was proclaimed on May 14, 1953. That legislation imposed liability on the Crown in respect of all torts committed by its servants. The Act has been renamed the Crown Liability and Proceedings Act [S.C. 1990, c. 8, s. 20] and substantially amended, but s. 3, the provision imposing tortious liability, remains the same. [30] In 1952, even as the Crown Liability Act was being considered by Parliament, the Exchequer Court held that the Crown was immune from tortious claims not expressly permitted by s. 19(c) of the Exchequer Court Act. In Magda v. R., [1953] Ex. C.R. 22, President Thorson stated at pp. 29-30: The only matter that is before the Court is the bare question of law, namely, whether the suppliant has any legal claim against the Crown even if he should be able to prove that the allegations in his petition of right are true and establish that he was unlawfully imprisoned and interned and that the acts of which he complains were wrongful. The answer to this question must, in the present state of the law, be in the negative. Consequently, must hold that even if the allegations in the petition of right are true and even if the suppliant was unlawfully imprisoned and unlawfully interned and even if the acts of which he complains were wrongful he is not entitled to any relief as against the Crown and his claim for damages must be wholly denied. The reason for this is that in the present state of the law no petition of right lies against the Crown in right of Canada for any tort, or “faute”, to use the language of Article 1053 of the Civil Code of Quebec, committed by an officer or servant of the Crown while acting within the scope of his duty or employment except for such tort or segment of “faute” as will give rise to claim expressly permitted by statute, as under section 19(c) of the Exchequer Court Act, R.S.C. 1927, chap. 34, and that the allegations in this petition are not allegations of acts of negligence within the meaning of that section. And further on at p. 30: ... measure of reform that will remove this defect in the law is before the present session of Parliament but it cannot affect the present case. [31] In 1993, s. 24(1) of the Crown Liability Act was interpreted as continuing Crown immunity for intentional torts committed by an officer or servant of the Crown before 1953. (See Mayrhofer v. Canada (T.D.), 1993 CanLII 2919 (FC), [1993] F.C. 157 (F.C.T.D.), per Teitelbaum J. at pp. 170-171. [32] More recently, the Ontario Superior Court of Justice reviewed the history of that court’s jurisdiction over claims against the Federal Crown for matters predating May 14, 1953. In M.C.C. v. Canada (Attorney General), [2001] O.J. No. 4163 (QL), Haines J. stated at paras. 14-16: Conduct Prior to 1953 ¶14 The 1953 Crown Liability Act gave provincial courts jurisdiction to deal with claims under s. 3(1) but it also included provision that limited the Crown's liability to acts that occurred after the proclamation of the Act. Subsection 24(1) reads: No proceedings shall be taken against the Crown under this Act in respect of any act, omission, transaction, matter or thing occurring or existing before the day on which this Act was assented to. ¶15 The defendants submit that this provision bars the taking of proceedings against the Crown or her agents for anything that occurred or existed before May 14, 1953, the date the Act came into force. They also contend that the Crown Liability and Proceedings Act is the only vehicle available for bringing proceedings against the Attorney General of Canada in provincial court: ss. 21 and 23. The defendants, therefore argue that insofar as the plaintiffs purport to bring this action against the Crown pursuant to the Crown Liability and Proceedings Act and against the other defendants as Crown agents, they have failed to plead cause of action that this court has jurisdiction to entertain with respect to anything that occurred before May 14, 1953. agree with this submission. ¶16 It seems to me that the language of s. 24(1) is clear and its meaning unambiguous. It may be that the plaintiffs have cause of action they can pursue under the Exchequer Court Act or its successor, the Federal Court Act, R.S.C., 1985 c. F-7, as amended, but, in my view, it is plain and obvious that any claims arising from acts or omissions that predate May 14, 1953 cannot succeed in this court under the Crown Liability and Proceedings Act. [33] The law is clear that the plaintiff cannot pursue claim against the Federal Crown for the intentional tort of trespass, assault and battery of its officers and servants occurring prior to May 14, 1953. Although Haines J. in M.C.C. v. Canada (Attorney General), supra, decided that provincial court has no jurisdiction to entertain any claim against the Federal Crown arising from acts or omissions that predate May 14, 1953, my decision is based on the narrower ground that this Court has no jurisdiction to entertain claims arising from the intentional torts of officers and servants of the Crown occurring before the proclamation of the Crown Liability Act on May 14, 1953. [34] limit my conclusion for two reasons. First and foremost, the Attorney General makes no application to strike the plaintiff’s claim in negligence (or any other claim) on the ground that it must be brought in another court. Second, the plaintiff’s claims based on breach of trust and breach of fiduciary duty are claims for equitable relief. The ability to obtain equitable relief against the Crown by means of an ordinary action against the Attorney General was upheld in Dyson v. Attorney-General, [1911] K.B. 410 (C.A.) in which the English Court of Appeal decided that the Court of Exchequer’s power to give equitable relief could be exercised by all divisions of the High Court. Obtaining declaration against the Crown in an action in which the Attorney General is named as the defendant became known as the Dyson procedure—a procedure that was and is available in Canada in every jurisdiction except New Brunswick and Nova Scotia. (See Hogg and Monahan, Liability of the Crown, c. 1.3(b), p. and c. 2.3(d), pp. 27-28 and authorities cited therein. See also Canex Placer Ltd. v. Attorney General of British Columbia (1975), 1975 CanLII 944 (BC CA), 58 D.L.R. (3d) 241 (B.C.C.A.) and Borowski v. Canada (Minister of Justice), 1980 CanLII 2238 (SK QB), [1980] W.W.R. 283 (Sask. Q.B.) per Hughes J. ). [Emphasis added] would add that the plaintiffs’ claim for unjust enrichment is also claim for equitable relief. [42] agree with Ball J. that prior to May 14, 1953, no action may be brought against the Crown for intentional torts such as trespass and assault and battery. The claims by the plaintiff in this case are not claims for intentional torts. In the main they are claims for equitable relief. [43] The Crown argued that the Dyson procedure was not applicable by reason of the fact that the plaintiffs are claiming damages and the only remedy available in Dyson, supra, is declaration. [44] Firstly, can find nothing in the CLPA which precludes plaintiff from obtaining equitable relief against the Crown. declaration is defined by Peter W. Hogg ad Patrick J. Monahan in Liability of the Crown, 3d ed. (Toronto: Carswell, 2000), c. 2.3, p. 26: declaration is judgment that declares the law applicable to the parties but does not include any coercive order. Breach of declaration is not contempt of Court and does not attract any other penalty. This deficiency in the remedy is sometimes cured by accompanying declaration with coercive relief such as damages or an injunction or specific performance, but this is not necessary. The Court has the power to make declaration “whether or not any consequential relief is or could be claimed”. [45] If the trial judge were to decide that the Crown breached fiduciary duty or was guilty of breach of trust, or was unjustly enriched, with respect to the claims of the plaintiffs and that the plaintiffs suffered damages, it is inconceivable that the Crown would ignore the declaratory judgment. [46] That point is made clear in Hogg and Monahan in Liability of the Crown, c. 2.3, p. 27 where the learned authors point out: (b) Crown liability Declaration is remedy that is available against the Crown. The absence of coercive decree avoids the problems of commanding the Crown and enforcement against the Crown, which led the Courts to create Crown immunity from injunction, specific performance, mandamus and discovery. And yet the absence of coercive decree is seldom disadvantage when the Crown is the defendant, because public officials can usually be relied upon to obey the law once it has been declared by Court. [Emphasis added] [47] In its amended statement of defence the Crown alleges that the claim of the plaintiffs is barred by s. 269 of the National Defence Act, R.S.C. 1985, c. N-5. [48] The limitation period referred to in s. 269 would only provide limitation argument to the Crown if the allegations of negligence, breach of trust and breach of fiduciary duty in the statement of claim were confined to alleged acts or omissions of military personnel. The statement of claim contains allegations against the Department of Indian Affairs and Indian agents, the Department of Veterans Affairs and the Director of the Veterans Land Act. At best, it is possible that s. 269 may provide complete answer with respect to few Crown servants or agents who might otherwise be found guilty of negligence in this action. It does not bar claims made directly against the Crown for breach of trust and breach of fiduciary duty. [49] The Crown also argues: (a) That pursuant to s. 59 of The Trustee Act, R.S.S. 1978, c. T-23, as am., and its predecessor legislation in force in Saskatchewan until June 22, 1990, person who claims to have been the victim of tortious conduct by deceased person, has maximum of one year from the date of death to maintain an action against the executor or administrator of the estate; (b) For any benefit due before 1990, no action lies more than one year after the date of death of the employee who is alleged to have breached any duty owed; (c) Liability of an employee or agent is the only foundation for claimed liability of the Crown; (d) If an action cannot be brought against an individual employee or agent, it cannot be brought against the Crown. [50] The above argument is based on the combined effects of ss. 10 and 24 of the CLPA and s. 59 of The Trustee Act. Section 59 of The Trustee Act provides as follows: 59. If deceased person committed wrong to another in respect of his person or of his real or personal property, except in cases of libel and slander, the person so wronged may maintain an action against the executors or administrators of the person who committed the wrong, but such action shall be brought within one year after the decease. [51] The argument was effectively dealt with by Ball J. in Kaiswatum, supra, in the following paragraphs found on pp. 18 and 19: [38] Section 10 of the Crown Liability and Proceedings Act has generally been regarded as applicable to actions against the Crown based upon vicarious, not direct, liability. In order for liability to fall on the Crown, plaintiff must show that Crown servant or servants, acting within the scope of employment, breached duty that was owed to the plaintiff. The plaintiff must additionally establish that the breach caused the plaintiff’s injury of sort that would attract personal liability against private person. (See Air Canada v. Canada (Minister of Transport), 1999 CanLII 7953 (FC), [1999] 165 F.T.R. 60 at para. 38 (F.C.T.D.); Olympia Janitorial Supplies v. Canada (Minister of Public Works), [1(997] F.C. 131 at para. 22 (F.C.T.D.), per Wetston J. (See also P. Lordon, Crown Law (Toronto: Butterworths, 1991) at pp. 327, 335 and 340). Once the plaintiff has satisfied the requirements of s. 10, the Crown’s vicarious liability follows. [39] have already decided that this Court has no jurisdiction to entertain claim against the Federal Crown based on its vicarious liability for assaults said to have occurred before May 14, 1953. It is therefore unnecessary for me to decide whether the same claim, to the extent that it may be based on the intentional tort of the now deceased Sister Greyeyes, is also barred by the combination of legislation relied upon by the Attorney General. Nevertheless, it seems apparent that s. 59 of The Trustee Act does not bar any aspect of the plaintiff’s claim described in s. 3(3.1) of the LAA for the same reason s. 2(1) of the POPA does not do so: the time limitation periods are abrogated by s. 3(3.2) of the LAA (see para. 22 above). Since there is no limitation period barring the cause of action against Sister Greyeyes or her estate, there can be no provincial limitation period available to the Federal Crown under s. 24 of the Crown Liability and Proceedings Act. [41] The plaintiff’s claims of negligence, breach of trust and breach of fiduciary duty are claims of direct liability alleging the breach of duty owed to the plaintiff by the Federal Crown independently from any duty owed to the plaintiff by Sister Greyeyes. Claims based on the direct liability of the Crown are not affected by time limitation periods applicable to Sister Greyeyes or her estate. [52] There is another short answer to the argument, namely, there is no evidence to suggest all Crown employees who administered the benefits claimed by the plaintiffs are deceased, and if they are, when they died. [53] In paragraph 22 of the amended statement of claim, the plaintiffs allege: ... [T]hat the Crown cannot limits [sic] its constitutional responsibility to Indians by limiting their right to sue the Crown by involving Provincial Limitation Acts that prevent actions from being sustained against the Crown by Indians as it has exclusive jurisdiction over Indians pursuant to the Constitution Act, 1867 30 and 31, Volume C. (U.K. sec. 91(24), Constitution Act, 1982, and the Canadian Charter of Rights and Freedoms. find no merit in that argument. [54] agree with the Crown that this argument was disposed of conclusively by the Supreme Court of Canada in Wewaykum Indian Band v. Canada, 2002 SCC 79 (CanLII), [2002] S.C.J. No. 79 (QL), at para. ¶116 Parliament is entitled to adopt, in the exercise of its exclusive legislative power, the legislation of another jurisdictional body, as it may from time to time exist: Coughlin v. Ontario Highway Transport Board, 1968 CanLII (SCC), [1968] S.C.R. 569; Ontario (Attorney General) v. Scott, 1955 CanLII 16 (SCC), [1956] S.C.R. 137. This is precisely what Parliament did when it enacted what is now s. 39(1) of the Federal Court Act. [55] also agree with the Crown that Wewaykum, supra, deals with the plaintiff’s argument that alleged misconduct of the kind at issue in this case gave rise to “continuing breach” which escapes statutory limitations. Binnie J. observes in Wewaykum at para. 135: ¶135 Acceptance of such position would, of course, defeat the legislative purpose of limitation periods. For fiduciary, in particular, there would be no repose. In my view such conclusion is not compatible with the intent of the legislation.... [56] To conclude the limitation argument the equitable claims of the proposed plaintiffs under s. 3(1)(h) of the LAA are statute barred after six years from the discovery of the cause of action. All other claims are barred under s. 3(j) within six years after the cause of action arose unless they are saved by the common law doctrine of discoverability. DISCOVERABILITY [57] In [P.G.], supra, Ball J. reviewed the decisions relied on by the plaintiff and the Crown in support of their respective arguments as to whether or not the doctrine of discoverability applies to the claims advanced by the plaintiffs. [58] Ball J. came to the conclusion that all of the limitation periods in The Limitation of Actions Act were subject to discoverability. His reasons are as follows: [20] Discoverability is common law rule of interpretation applied by courts in construing statutory limitation provisions. Briefly, the principle is that where limitation period begins to run from the accrual of cause of action or the occurrence of some component of cause of action, the time will not begin to run until the plaintiff has discovered, or should with reasonable diligence have discovered, the wrongful nature of the defendant’s acts and the nexus between those acts and his injuries. [21] In [R.J.G.], Barclay J. stated at para. 10 that none of the provisions of the LAA appear to codify the common law discoverability doctrine: [10] It is critical to underscore that there appears to be no “ultimate limitation period” or “longstop provision” in the Act. Furthermore, the Act does not appear to codify the common law discoverability doctrine in any of its provisions. This is significant in that they provide salient contrast with other jurisdictions and lend support to the conclusion that the common law doctrine of discoverability applies in this case. [22] And at para. [17] Some provinces, notably, Manitoba and British Columbia, have incorporated discoverability into certain sections of their limitation legislation. The Saskatchewan legislation does not appear to codify the doctrine. Of course, this does not mean that the common law doctrine does not apply to the interpretation of the Act’s provisions. The Supreme Court has held that very strong legislative language would be required to displace the operation of the common law rule of discoverability.... [23] And again at para. [21] It is clear that s. 3.1 [sic] does not codify the rule of discoverability, but rather removes the limitation periods with respect to specific sexual abuse claims. Therefore, in my view, with respect to all the other sections of the Act, discoverability would apply. This conclusion is supported in recent decision by the British Columbia Supreme Court. In B. (K.L.) v. British Columbia, 2001 BCCA 221 (CanLII), [2001] W.W.R. 47 at 66, MacKenzie J.A. of the British Columbia Court of Appeal said that in case where there is claim for physical abuse which cannot fall into the exemption for sexual abuse, discoverability still applies. At para. 11, Barclay J. referred to series of decisions of the Supreme Court of Canada as follows: .. As LeDain J. held on behalf of the Supreme Court of Canada in Central Trust Co. v. Rafuse, 1986 CanLII 29 (SCC), [1986] S.C.R. 147 at 224, discoverability is “general rule” that cause of action arises for the purposes of limitation period when the material facts on which it is based have been discovered or ought reasonably to have been discovered by the plaintiff by the exercise of reasonable diligence. [12] The Supreme Court of Canada has subsequently held that the discoverability rule is an interpretive tool that ought to be applied every time limitation provision is in issue: Peixeiro v. Haberman, 1997 CanLII 325 (SCC), [1997] S.C.R. 549 at para. 38. The court in that case held that very clear legislative language indeed would be required to “displace the general rule of discoverability”. Marceau J. of the Alberta Court of Queen’s Bench stated in Brown (Next Friend of) v. University of Alberta Hospital, 1997 CanLII 14750 (AB QB), [1997] W.W.R. 645 at para. 68, that “[i]n my view, the Supreme Court has plainly said that they will apply the discoverability rule to all statutes of limitation ....” [13] The general rule that time begins to run when the material facts of the cause of action have been (or ought to have been) discovered was extended by the Supreme Court in M.(K.) v. M.(H.), 1992 CanLII 31 (SCC), [1992] S.C.R. at 24. As result of the decision in that case, plaintiff now must not only know the material facts but must realize the nexus between the harm and its likely cause. As the court stated, the cause of action does not accrue “until the plaintiff is reasonably capable of discovering the wrongful nature of the defendant’s acts and the nexus between those acts and her injuries.” [14] Further expanding the scope of the discoverability doctrine was the 1999 decision of the Supreme Court of Canada in Novak v. Bond (1999), 1999 CanLII 685 (SCC), 172 D.L.R. (4th) 385 (S.C.C.). In that case, the Court held that in applying the discoverability rule, time does not begin to run until reasonable person would conclude that someone in the plaintiff’s shoes could reasonably bring an action, “[i]n light of his or her particular circumstances ...” (headnote at p. 386). Although the Supreme Court in Novak was particularly concerned with the interpretation of statutory discoverability provision in the British Columbia legislation, the reasoning in Novak has since been extended to the common law rule of discoverability. Indeed, the recent decision of Zarzeczny J. in P.R.A. v. Orange Benevolent Society, 2002 SKQB 211 (CanLII), [2002] S.J. No. 307 suggests that it applies specifically in Saskatchewan. [25] In Plotnikoff, supra, Kyle J. decided that the common law discoverability principle is incorporated into the LAA by s. 3(1)(h), which applies to actions grounded on accident, mistake or other equitable grounds of relief, and that this indicated legislative intention to exclude the principle for other claims, including those in negligence. Beginning at para. 7, Kyle J. stated: [7] The plaintiff in seeking to support its claims for negligence, breach of trust and breach of fiduciary duty, argues that the discoverability rule has broader application than that which is found in paragraph 3.1(h) of the Act which says: (h) actions grounded on accident, mistake or other equitable ground of relief not hereinbefore specifically dealt with, within six years from the discovery of the cause of action; [8] This section of the Act recognizes the existence of the discovery rule and limits its application to equitable claims as therein described. The clear intent of the legislation is to place time limits upon all causes of action and to limit the discovery rule to equitable grounds of relief.... [9] It is argued in support of the discoverability rule that precedents based on the limitations of action legislation in British Columbia should be followed. note, however, that the case of Novak v. Bond, 1999 CanLII 685 (SCC), [1999] S.C.R. 808 related to and should be confined to the unique provision of the British Columbia act. It would be unwise to import that precedent into Saskatchewan where the law is in no way similar. [10] note too that several cases which tended to broaden the discovery rule pre-dated the statutory amendments such as ss. 3(3.1) of the Act and had the effect of preserving causes of action for sexual abuse. Legislative action has now made the discovery rule unnecessary in such cases. [11] Accordingly, the reference to negligence in paragraphs 15, 16, 17 and 23 will be struck by reason of negligence actions being statute barred. [26] The above excerpts illustrate why the Court came to very different conclusions in [R.J.G.]. and Plotnikoff. [27] First, in Plotnikoff, the Court decided that s. 3(1)(h) of the LAA is codification which confines discoverability to equitable claims. In [R.J.G.], the Court did not refer to s. 3(1)(h) but decided that all limitation periods are to be interpreted having regard to discoverability. [28] Second, in [R.J.G.] the Court relied upon number of decisions of the Supreme Court of Canada confirming that as general rule the discoverability principle ought to be applied when limitation provision is in issue, so that time begins to run when the plaintiff is reasonably capable of discovering the wrongful nature of the defendant’s acts and the nexus between those acts and the plaintiff’s injuries. Those decisions include Novak v. Bond (1999), 1999 CanLII 685 (SCC), 172 D.L.R. (4th) 385, Peixeiro v. Haberman, 1997 CanLII 325 (SCC), [1997] S.C.R. 549 at para. 38, M.(K.) v. M.(H.), 1992 CanLII 31 (SCC), [1992] S.C.R. at 24 and Central Trust Co. v. Rafuse, 1986 CanLII 29 (SCC), [1986] S.C.R. 147 at 224. In Plotnikoff the Court referred only to Novak v. Bond, supra, which it distinguished on the basis that the case related to and should be confined to unique British Columbia legislation. [29] Third, in Plotnikoff the Court reasoned that the enactment of s. 3(3.1) of the LAA “... had the effect of preserving causes of action for sexual abuse ... [making] the discovery rule unnecessary in such cases.” In [R.J.G.], the Court suggested that while s. 3(3.1) may have made the discovery rule irrelevant in the limited circumstances referred to therein, it did not change the application of the doctrine as it had previously existed for other claims. [30] While the current law is not settled on the point, have decided to follow the decision of this Court in [R.J.G.], supra. Sections 3(1)(d) and 3(1)(h) of the LAA have existed in their current forms since at least 1932 (see S.S. 1932, c. 18, s. 3). They are indistinguishable from much of the counterpart legislation in other jurisdictions considered by the Supreme Court of Canada in the decisions referred to above. All of those judgments were rendered after the enactment of ss. 3(1)(d) and 3(1)(h). Accordingly do not view the reference to discoverability in s. 3(1)(h) as codification which eliminates discoverability as consideration in all other claims. Although the enactment of s. 3(3.1) of the LAA in 1993 made issues of discoverability irrelevant for claims of trespass in limited circumstances, if those issues were previously relevant to other claims then in my view s. 3(3.1) did not serve to make them irrelevant. [31] Although the plaintiff’s claim in negligence may well be barred by the two year limitation period prescribed by s. 3(1)(d)(i) of the LAA, find that discoverability may be relevant to determining when that limitation period began to run. In the absence of agreement on the facts, there will be requirement for factual determination at trial with respect to when or over what period of time the plaintiff achieved substantial awareness of the wrongfulness of the actions sued upon and their consequential effects upon him. [59] agree with Mr. Justice Ball. [60] The causes of action proposed by the plaintiffs can only survive by application of the doctrine of discoverability. That gives rise to the critical question on this application—is class action the preferable procedure to determine issues of discoverability? [61] The decision in Brogaard, supra, is clearly distinguishable. The issue in that case was, in essence, question of law as to whether the plaintiffs would have the right to apply for survivor benefits. It was not dependant on the individual state of knowledge or circumstance of each plaintiff. [62] In McKay v. CDI Career Development Institutes Ltd. (1999), 1999 CanLII 5599 (BC SC), 30 C.P.C. (4th) 101, Blair J. of the British Columbia Supreme Court dismissed an application for certification when he concluded that the causes of action, the damages alleged and the issue proposed by the representative plaintiff as being common were dependant upon the class members individually establishing their claims against the defendant. Blair J. pointed out the difficulties in proceeding by way of class action in circumstances such as exist in this case. He stated at para. 47, p. 115: 47 further find that the individuality of the claims pose substantial difficulties in proceeding with certification as class action and conclude that these difficulties outweigh those likely to be experienced if relief were sought by other alternative means. In Mouhteros v. DeVry Canada Inc., supra [(1998), 1998 CanLII 14686 (ON SC), 41 O.R. (3d) 63 (Gen. Div.)],Winkler J. stated at para. 31: The presence of individual issues will not be fatal to certification. Indeed, virtually every class action contains individual issues to some extent. In the instant case, however, what common issues there may be are completely subsumed by the plethora of individual issues, which would necessitate individual trials for virtually each class member. Each student’s experience is idiosyncratic, and liability would be subject to numerous variables for each class member. Such class action would be completely unmanageable. He later continued at para. 33: In my view, certification in this case will result in multitude of individual trials, which will completely overwhelm any advantage to be derived from trial of the few common issues. 48 In Sutherland v. Canada (Attorney General) (1997), 15 C.P.C. (4th) 329 (B.C.S.C.), Smith J. dealt with class certification application by persons affected by the operation of third runway at Vancouver airport. Mr. Justice Smith held there were no common issues because of the variables impacting on the various members of the proposed class, stating at p. 341: Moreover, they [the issues] are intrinsically individualistic and would inevitably reduce to discrete adjudications for each plaintiff. Little or no benefit would accrue to class members from common trial of any of these issues and, in the circumstances, class proceeding would not be fair and efficient method for resolving them. 49 In Tiemstra v. Insurance Corp. of British Columbia (1996), 1996 CanLII 2819 (BC SC), 22 B.C.L.R. (3d) 49 (B.C.S.C.) Chief Justice Esson (as he then was) denied an application for certification of class proceeding for individuals whose no fault claims were rejected under the defendant’s policy known as “no crash-no cash”. At p. 61, the Chief Justice concluded: On the other hand, class actions have the potential for becoming monsters of complexity and cost. In this case, am persuaded that the gloomy picture painted by I.C.B.C. is much closer to reality than the rosy one painted by the plaintiff. am therefore persuaded that class proceeding would not be the preferable procedure for the fair and efficient resolution of these claims. find that the conclusion of Chief Justice Esson is applicable to Mr. McKay’s application and that, even were there common issues for consideration, the certification of this action would lead to series of individual trials as each member of the class sought to establish their action and damages against CDI. The complexity and costs would be substantial and the organization of such proceeding would be exceedingly difficult. [63] case even more directly on point is M.C.C. v. Canada (Attorney General), [2001] O.J. No. 4163 (QL) decision of Haines J. of the Ontario Superior Court. In that case the plaintiffs were former students and the families of former students of Mohawk Institute Residential School located in Brantford, Ontario. The claims which the plaintiffs sought to have certified as class proceeding ranged from non-sexual assault to breaches of aboriginal and treaty rights. [64] In dealing with the limitation and laches arguments advanced by the Crown, Haines J. made the following comments: ¶74 The limitations and laches defences also make these claims difficult, if not impossible to deal with in common. This action was commenced long past the proscription dates that would apply to the claims arising from the allegations of negligence, assault and battery. To the extent any such claims may be saved by the discoverability rule, there will have to be an independent inquiry conducted of each member of the class to determine if they took action within reasonable time once they were aware of the harm and its likely cause. Similarly, with respect to the claims for breach of fiduciary duty and aboriginal rights for which no limitation periods exist, the doctrines of laches and fraudulent concealment will have to be addressed and an inquiry of each claimant would be required to determine if they acquiesced or took action within reasonable time after discovering the cause of action that was fraudulently concealed. (p. para. 74) [65] The comments of Winkler J. in Mouhteros v. DeVry Canada Inc. (1998), 1998 CanLII 14686 (ON SC), 41 O.R. (3d) 63 (Gen. Div.) and Haines J. in M.C.C. v. Canada (Attorney General), supra, are equally applicable to this case. It is not possible to determine issues of discoverability in any global fashion. It will be necessary to have an inquiry into the state of mind of each individual plaintiff over a period of 40 years. As Winkler J. pointed out in Mouhteros, such a class action would be completely unmanageable and certification will result in a multitude of individual trials which would completely override any advantage that might be derived from a trial of a few potential common issues. [66] Furthermore, leaving aside the limitation problems, individual determinations will be required of each individual plaintiff in order to ascertain whether that plaintiff has a cause of action. [67] For example, finding that the Crown had fiduciary duty to properly inform every Indian war veteran as to the benefits they were entitled to receive would not amount to finding that each such war veteran had cause of action. A determination would still be required as to whether there had been a breach of the duty to properly inform every proposed plaintiff. An individual inquiry would be required as to what information each Indian veteran received, whether he understood the information and whether he made an informed decision. Similarly, a finding that there was a trust relationship between the veterans and the Crown as to the administration of the benefits would not determine whether there was a breach of any such relationship without an inquiry into the facts and circumstances of each individual veteran. [68] Again, those determinations cannot be made in manner that would apply generally to the members of the class. They are fundamental to the existence of each class member’s right of action and must be made on a case by case basis. The individual findings that would be necessitated in this case go far beyond the matters enumerated in s. of the CAA, supra, p. 6, as not being bars to certification. [69] In Abdool v. Anaheim Management Ltd., supra, O’Brien J. set forth what he considered to be the main objects of class proceedings legislation at p. 461: It seems clear the three main objects of the class proceeding legislation are: (i) judicial economy, or the efficient handling of potentially complex cases of mass wrongs; (ii) improved access to the courts for those whose actions might not otherwise be asserted. This involved claims which might have merit but legal costs of proceeding were disproportionate to the amount of each claim and hence many plaintiffs would be unable to pursue their legal remedies; (iii) modification of behaviour of actual or potential wrongdoers who might otherwise be tempted to ignore public obligations. [70] fail to see how those objectives will be achieved by certifying this action as class proceeding. [71] Counsel for the plaintiffs indicated in argument that in their estimation, the damages sought by individual plaintiffs range from approximately $280,000.00 to $368,000.00. Those are significant claims which can otherwise be asserted. [72] The refusal to certify this action will not, of course, prevent individual plaintiffs from proceeding with their respective claims if so advised. In other words, they are not “driven from the judgment seat”. [73] In conclusion, a class action is not the preferable procedure in the circumstances of this case. The issues of discoverability relating to each individual plaintiff overwhelms any common issues. [74] The application is therefore dismissed. Crown counsel advised that the Crown is not seeking an order for costs.

Canadian veterans of the Korean War or World War II applied for certification of an action under the Class Actions Act. The plaintiffs claimed they and their dependents were treated differently than non-native war veterans by requiring benefits to be administered by the Department of Indian Affairs or through Indian agents and claimed damages for loss of benefits based on systemic negligence, breach of trust, breach of fiduciary duty and unjust enrichment. They alleged officials and Indian agents were negligent in carrying out their duties to inform the plaintiffs of their right to receive full and complete benefits and in some case agents misappropriated benefits. HELD: The application was dismissed. A class action is not the preferable procedure in the circumstances. The issue of discoverability relating to each plaintiff overwhelms any common issues. It is not possible to determine issues of discoverability in any global fashion. It will be necessary to have an inquiry into the state of mind of each individual plaintiff over a period of 40 years. Such a class action would be completely unmanageable and certification would result in a multitude of individual trials, which would completely override any advantage that might be derived from a trial of a few potential common issues. A finding that there was a trust relationship between veterans and the Crown as to the administration of benefits would not determine whether there was a breach of any such relationship without an inquiry into the facts and circumstances of each veteran on a case by case basis. Aside from limitation problems, individual determinations will be required in order to ascertain whether the individual has a cause of action including for breach of a fiduciary duty, if one existed, to properly inform each proposed plaintiff, what information each received, whether he understood the information and made an informed decision. The Crown did not seek costs.

c_2003skqb58.txt

Morgan, IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2011 SKPC 080 Date: May 17, 2011 Information: 24412696 Location: Melfort Between: Her Majesty the Queen Appearing: Nicole Leinenweber For the Crown Roseanne Newman For the Accused RULING ON S. 752.1 ASSESSMENT APPLICATION L. DYCK, [1] On January 26, 2011, Brian Ben was found guilty on charge of assaulting peace officer with weapon, contrary to s. 270.01(1) of the Criminal Code. [2] The Crown has applied, pursuant to s. 752.1(1) of the Code, for an order remanding Mr. Ben for an assessment performed by an expert for use as evidence in an application to have Mr. Ben declared a dangerous offender. Defence counsel submits the order should not be made as the predicate offence is not a serious personal injury offence and it is not within the realm of possibility that Mr. Ben could be found to be a dangerous offender. Is the Predicate Offence “Serious Personal Injury Offence”? [3] Section s. 752.1(1) of Code states as follows: 752.1 (1) On application by the prosecutor, if the court is of the opinion that there are reasonable grounds to believe that an offender who is convicted of serious personal injury offence or an offence referred to in paragraph 753.1(2)(a) might be found to be dangerous offender under section 753 or long-term offender under section 753.1, the court shall, by order in writing, before sentence is imposed, remand the offender, for period not exceeding 60 days, to the custody of person designated by the court who can perform an assessment or have an assessment performed by experts for use as evidence in an application under section 753 or 753.1. [4] In order for the assessment order to be made, the Court must be satisfied that the offence is “serious personal injury offence”, which is defined in section 752 of the Code, the relevant portion of which reads as follows: 752. In this Part, “serious personal injury offence” means (a) an indictable offence ... involving (i) the use or attempted use of violence against another person, or (ii) conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage on another person, and for which the offender may be sentenced to imprisonment for ten years or more ... [5] Mr. Ben has been found guilty of assaulting peace officer while using weapon. The Crown proceeded by indictment and therefore this offence carries maximum penalty of “a term of not more than 10 years”. [6] The facts as found after trial were that Cpl. Hodge had received information that Mr. Ben, who had an outstanding warrant, was at particular residence. Cpl. Hodge went to that location, and saw Mr. Ben at the front of the house. Mr. Ben began to run away from the officer. The officer gave chase. [7] The officer yelled at the accused to stop and Mr. Ben finally did, about 25 feet away from Cpl. Hodge. Mr. Ben turned toward the officer, with his hands raised and his fists clenched. Mr. Ben appeared to be in combative or assaultive stance. [8] The officer drew his taser and yelled for Mr. Ben to get down on the ground. The accused began walking toward Cpl. Hodge and was closing the distance between them. When Mr. Ben was distance of about eight feet away from the officer, the officer fired his taser. This had only momentary effect on the accused. Mr. Ben was trying to break free of the taser wires and Cpl. Hodge was attempting to load cartridge on his taser. [9] Mr. Ben picked up large tree branch, which was about seven feet long, and about three-quarters to two inches in diameter, and began swinging it at the officer. The branch was stick that had been made by the accused to be used to hold up clothesline when clothes were on it. As the branch went by, Cpl. Hodge dropped his taser, backed away, and drew his sidearm. Given the distance between Cpl. Hodge and Mr. Ben, and the length of the stick, the stick would have come very close to Cpl. Hodge when the accused was swinging it. Cpl. Hodge feared for his life at that time. [10] Cpl. Hodge told Mr. Ben to put down the weapon. The accused complied, then turned around and ran in the same direction he had originally been running. The officer pursued Mr. Ben briefly, then stopped and called for back-up. [11] In his victim impact statement, dated March 15, 2011, filed as Exhibit P10 in this hearing, Cpl. Hodge stated “I have never feared for my own life more than on that day” and “there is not day that has passed since then that do not think about my encounter with Mr. Ben”. He also noted that “when my wife heard about this incident she was also effected [sic], as everyday go to work she worries about whether will come home safe”. [12] In R. v. Goforth, 2005 SKCA 12 (CanLII), Justice Cameron discussed the definition of “violence” with respect to s. 752 of the Code, and stated at paragraph 22 that “to speak of the use of violence against another person, as in paragraph 752(a), is to speak of using physical force against another with intent to hurt, injure or kill another”. Later at paragraph 82, it was noted that the definition of “serious personal injury offence” as found within paragraph 752(a) of the Code does not imply the use or attempted use of “serious” violence or conduct “seriously” endangering or likely to “seriously” endanger the life or safety of another person. [13] The decision of R. v. Wright, 2007 SKQB 350 (CanLII), dealt with whether charge of possession of loaded prohibited firearm under s. 95(1) of the Code was serious personal injury offence in the context of an application for an assessment under s. 752.1(1) of the Code. The accused had entered into federal half-way house with sawed off rifle. Mr. Wright was in his room with female commissionaire for period of 25 minutes. At no time did he point the gun at the commissionaire, nor did he use any force or threaten her. Mr. Wright had consumed cocaine on the day of the offence. [14] At paragraphs 10-11 of Wright, Justice Gunn stated that the fact Mr. Wright had loaded restricted weapon in the circumstances described satisfied her “that this was conduct endangering or likely to endanger the life or safety of another person”. She indicated it “was also conduct which was likely to inflict severe psychological damage even if it did not actually inflict severe psychological damage in these circumstances”. [15] In R. v. Roy, 2008 SKCA 41 (CanLII), the Court looked at whether the sentencing judge had erred in law in failing to find that Mr. Roy had committed serious personal injury offence within the meaning of s. 752 of the Code, again in the context of s. 752.1(1) Code application for assessment. At paragraph 14, the Court referred to paragraph 29 of the written decision of the sentencing judge: .. The Court must also be satisfied that the predicate or index offence is serious personal injury offence. According to Constable Doetzel the accused was approximately eight feet away when he was cornered by both officers. There was no attempt to try and strike either officer. Brandishing the bat at Constable Kinzel is technically an assault and the accused has acknowledged that by pleading guilty. Both officers had their batons out and would assume that each was equipped with standard issue pepper spray and revolver. No attempt was made by the accused to lunge at either officer. It is certainly possible that the situation could have escalated and the accused could have attacked either or both officers. He did not do this. have difficulty accepting that standing eight feet away and holding the bat over his head could, in all the circumstances, “constitute the use or attempted use of violence”. also do not accept that the accused engaged in conduct endangering or likely to endanger the life or safety of either officer. have already dismissed the severe psychological component for lack of evidence. Section 752(b) also does not apply. Accordingly am unable to find that the predicate or index offence is serious personal injury offence which is prerequisite to ordering an assessment. [Emphasis added] [16] In confirming the ruling of the sentencing judge, Justice Jackson, at paragraph 30, stated: do not think there can be any question that the brandishing of the bat, if we call it that, cannot be “conduct endangering or likely to endanger the life or safety of another person.” While brandishing weapon like gun may constitute endangerment, the judge’s conclusion that brandishing bat, in the face of unknown intent and at distance of eight feet could not, in and of itself, endanger or likely endanger the life or safety of someone, is reasonable conclusion. [17] R. v. Lebar, 2010 ONCA 220 (CanLII), is decision which addresses whether the offence of robbery was “serious personal injury offence” thus making Mr. Lebar ineligible for conditional sentence. At paragraph 50, Justice Epstein noted that “finding that violence was used remains matter of factual determination for the trial judge. Whether the criminal conduct amounted to the use or attempted use of violence is matter relating to the circumstances under which the crime was committed.” Further, at paragraph 51, the Court held that it “was reasonable for the trial judge to find that holding knife with five-inch blade to person’s neck, for the purpose of requiring her to yield to demand for money, is use of violence”. [18] In R. v. Otter, 2010 ABPC 218 (CanLII), Judge Brown had occasion to consider whether, on the facts before her, the robbery was “serious personal injury offence”, thus making Mr. Otter ineligible for conditional sentence order. In that case, the accused had entered convenience store, stated “you should open your till; I’m robbing you”, and short struggle ensued. The store clerk wrestled Mr. Otter to the ground where he was kept until police arrived. [19] At paragraph 25 of her decision, Judge Brown referred to paragraph 16 of the Alberta Court of Appeal decision of R. v. Ponticorvo, 2009 ABCA 117 (CanLII), which noted “We are not saying that every threat with weapon involves the use or attempted use of violence. For instance, it may be that the act of brandishing weapon at person from distance, with no immediate danger to the victim, does not fall within the phrase, violence or attempted use of violence.” Ultimately, Judge Brown found that, given the brief nature of the interaction between Mr. Otter and the store clerk, plus the fact the store clerk was unharmed and appeared unperturbed during the events, the accused did not use or attempt to use violence against the clerk. [20] Paragraph 16 of Ponticorvo also discusses the agreed statement of facts in that decision, which were that Mr. Ponticorvo “swung knife three times, at police officer who was in close proximity, forcing him to back away down some stairs”. The assault ended because Mr. Ponticorvo was shot by another officer, “which disabled him from pursuing his goal”. The Court held that in “the circumstances of this case, the assault with weapon, involved the use of violence or attempted use of violence” and was “therefore serious personal injury offence”. [21] find that the facts in the decisions of Roy and Otter are distinguishable from those found in this case. In this case, as opposed to Roy, the accused picked up the branch with the intention of using it against the officer. Mr. Ben then swung the weapon at Cpl. Hodge, coming so close to the officer that it caused him to back away and pull his sidearm. The weapon was of such a size that, as I noted when giving the decision after trial, “there is no doubt that if struck in the head with this object, it could cause serious damage”. Also, as opposed to Otter, the events were of longer duration, and the victim was affected by the actions of the accused. [22] In convicting Mr. Ben, stated “I reject the defence suggestion that this is low-level assault. This was very frightening situation for any peace officer to be in: facing an adult male carrying weapon and using it in an intimidating way”. [23] I find this offence is a “serious personal injury offence” as defined by s. 752. Mr. Ben’s actions involved the use of violence. In addition, Mr. Ben’s conduct endangered or was likely to endanger the life or safety of Cpl. Hodge, and his conduct inflicted, or was likely to inflict, severe psychological damage on the officer. Is it within the realm of possibility that Mr. Ben could be found to be dangerous offender? [24] Section 753(1) of the Code sets out the factors for the Court to consider in finding an accused to be dangerous offender: 753. (1) On application made under this Part after an assessment report is filed under subsection 752.1(2), the court shall find the offender to be dangerous offender if it is satisfied (a) that the offence for which the offender has been convicted is serious personal injury offence described in paragraph (a) of the definition of that expression in section 752 and the offender constitutes threat to the life, safety or physical or mental well-being of other persons on the basis of evidence establishing (i) pattern of repetitive behaviour by the offender, of which the offence for which he or she has been convicted forms part, showing failure to restrain his or her behaviour and likelihood of causing death or injury to other persons, or inflicting severe psychological damage on other persons, through failure in the future to restrain his or her behaviour, (ii) pattern of persistent aggressive behaviour by the offender, of which the offence for which he or she has been convicted forms part, showing substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences to other persons of his or her behaviour, or (iii) any behaviour by the offender, associated with the offence for which he or she has been convicted, that is of such brutal nature as to compel the conclusion that the offender’s behaviour in the future is unlikely to be inhibited by normal standards of behavioural restraint... [25] The Crown is relying predominately on s. 753(1)(a)(i) and (ii) in this instance. [26] Justice Cameron in R. v. Fulton, 2006 SKCA 115 (CanLII), at paragraph 21 speaks of what the Court must consider at this stage of the proceedings and the test to be applied: ...section 752.1 does not call upon the court to consider whether the offender will probably be found, or is likely to be found, dangerous or long-term offender. It does no more than call upon the court to consider whether there exist reasonable grounds to believe the offender might be found to be dangerous or long-term offender; and it does so for no other purpose than that of deciding whether to order an assessment. The word “might” speaks to possibilities: is the prospect of the offender being found to be dangerous or long-term offender within the realm of possibility or beyond it?... [27] In R. v. Peters, 2011 SKQB (CanLII), at paragraph 17, Justice Popescul also discussed the test to be applied: It is evident from the precise wording of s. 752.1(1), and jurisprudence that has interpreted this section, that the threshold is low. This Court must consider the totality of the record of evidence and the other information presented in support of the application in order to decide whether there are reasonable grounds to believe the offender might, not will, be found dangerous or long-term offender. This would appear to be burden far less than the criminal burden of proof and even less than the civil burden of proof. In order to require any more at this stage of the proceedings would run the risk that the Court is being asked to make findings on incomplete and imprecise information and without the benefit of the assessment proposed under s. 752.1. Consequently, my task is to consider the prospect of whether the offender being found to be dangerous or long-term offender is “within the realm of possibility or beyond it”. [28] Mr. Ben’s criminal record is significant. In summary, it begins in 1976 and has entries from as recently as January 26, 2011. There are 58 Criminal Code convictions on it. Fifteen of those are for violent offences, six of which relate to peace officers. He was sentenced to 15 and years on these violent offences. In addition, he has violated his mandatory supervision orders on three separate occasions and been recommitted to the Penitentiary and breached conditional sentence order once, resulting in termination of the conditional sentence order. [29] The crimes of violence for which Mr. Ben has been convicted have involved the use of weapon on more than one occasion: the robbery with violence in 1979 involved the use of both bottle and screwdriver, the manslaughter in 1992 involved the use of 4, and the present case involved branch. [30] Alcohol addiction has been problem for Mr. Ben for his entire adult life. He commenced drinking when he was approximately 15 years old. He was admitted to the Slim Thorpe Recovery Centre in Lloydminster, for alcohol counselling when he was 16 years old. His counsellor stated “Brian is aware of what happens to him when he drinks and he wants to change the things he has been doing in the future. He sees his drinking as serious problem in his life and wants to quit” (Exhibit P4, “Documents re: Slim Thorpe Recovery attendance in 1977”). [31] At page of the Pre-Sentence Report dated October 10, 1991 (Exhibit P3), the probation officer noted: Brian’s major problem appears to be alcohol. For the first time in his life, Brian sees his abuse as the first stumbling block he must overcome. He has taken serious look at his use and abuse and appears committed to learning “new way”. Brian’s motivation to quit drinking is heightened by his desire to return to school. As well, his wife and child play major influence. [32] In the Agreed Statement of Facts (Exhibit P8) with respect to the manslaughter conviction, it is noted that, on the date of the incident of March 21, 1992, “Brian Ben was very intoxicated at the time of the initial offence”. [33] Mr. Ben’s Institutional Summary (Exhibit P9) relating to his 1992 conviction for manslaughter indicates that: Mr. Ben was released to Statutory Release on March 21, 1997. His release was suspended on September 26, 1997 after Loon Lake RCMP picked up Ben after he was found consuming alcohol in beverage room.. After review it was determined that Ben would benefit more in the community than to remain in the institution. In order to help maintain sobriety, he was accepted to the Loon Lake Alcohol/Drug Treatment Centre. The suspension was cancelled and Ben was again released with the condition to attend the Treatment Centre. Mr. Ben was discharged from the Treatment Centre on December 18, 1997. Unfortunately, Mr. Ben was found to be extremely intoxicated day later on December 19, 1997. [34] The Institutional Summary goes on to say that Mr. Ben’s “Statutory Release was revoked on February 18, 1998. The National Parole Board felt that substance abuse is his primary criminogenic risk factor and any return to its use makes his manageability and risk undue.” [35] Finally, the Institutional Summary states that “Mr. Ben was again released on Statutory Release on July 21, 1999. Due to substance abuse being his primary criminogenic risk factor, the National Parol Board felt that special condition to abstain from all intoxicants was necessary. He was released to Pelican Narrows, SK. little more than three months later, Warrants of Apprehension and Suspension were issued due to Mr. Ben consuming alcohol and traveling [sic] outside of his travel area”. [36] transcript of the sentencing hearing relating to the June 23, 2004, convictions for Theft Under and Uttering Threats was filed (Exhibit P7). The accused, upon being arrested for vehicle theft, stated “that he had gun with bullet in it for the officer’s head”. Defence counsel noted that Mr. Ben had been drinking and doesn’t remember lot of what took place. At page of the transcript, Judge Fraser stated “The primary goal in this sentencing is individual deterrence, in my opinion. The RCM Police and any police officer is entitled to the full protection of the court as best can do that, and that expression is to make sure that Brian Ben does not circulate in our society for awhile.” Judge Fraser’s last comment to Mr. Ben was “Only you can take control of your life, sir.” [37] Similarly, in the incident before me, Mr. Ben admitted that he had been drinking wine and whiskey for “a couple of hours” before the police officer arrived and when asked if he would say he was pretty intoxicated, he said “Cut, yeah”. He admitted that his memory was pretty shaky due to alcohol consumption. (Trial Transcript, p. 71) [38] must decide whether there is evidence of “pattern” of behaviour in Mr. Ben’s actions to meet the requirements of s. 753(1)(a)(ii) and (ii). In R. v. Casemore, 2009 SKQB 306 (CanLII), at paragraph 9, Justice Ottenbreit discussed what is meant by “pattern”: “pattern” does not need to equate to similar fact evidence; general similarity is sufficient. There need not be lengthy history of violence or aggression for pattern to be found, so long as there are sufficient elements of similarity in the offender’s behaviour. The pattern must contain an element that the dangerous behaviour was not restrained in the past, and there must be likelihood that the same behaviour in the future will not be restrained and will cause death, injury or severe psychological damage. Or, alternatively, the pattern must contain aggressive behaviour that demonstrates substantial degree of indifference to the reasonably foreseeable consequences to the victims of the offences. [39] Judge Giesbrecht, in R. v. Steppan, 2010 MBPC (CanLII), discussed what was meant by “pattern” at paragraph 102: In order to be found dangerous offender there must be “pattern” of repetitive or persistent behaviour by the offender under s. 753(1)(a)(i) or (ii). In determining whether the offender’s behaviour constitutes relevant pattern the sentencing judge may have regard to past criminal conduct by the offender which involves some degree of violence or endangerment, the criminal record of the accused and psychiatric reports relating to past conduct and future risk assessment. There need not be lengthy history of violence or aggression for pattern to be found. [40] I find that given the number and nature of violent offences on Mr. Ben’s record, and that many of those violent offences involve peace officers and alcohol use, a pattern of behaviour has been established. [41] Under s. 753(1)(a)(i) of the Code, the Crown need not prove that the offender will commit acts which will cause injury to other persons in the future, but only that there is likelihood that the offender will cause such injury in the future (Steppan, para. 108). The best prediction of future behaviour is past behaviour. In looking at Mr. Ben’s past actions, find there is likelihood that Mr. Ben will cause injury in the future. [42] Under s. 753(1)(a)(ii) of the Code, the Crown must prove substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences to other persons of his behaviour. Again, in looking at Mr. Ben’s past actions, and most notably the facts in this case, it would appear that Mr. Ben does demonstrate such indifference. [43] The Court of Appeal at paragraph 15 in Roy made reference to the fact that the sentencing judge had found that: there were no reasonable grounds to believe that Mr. Roy might be found to be either dangerous offender or long-term offender in any event. He arrived at this view largely on the basis that he did not believe sentence of two years or more would be appropriate for the predicate offence, thus —in his view— ruling out the possibility of long-term offender designation, and therefore, also ruling out the possibility of dangerous offender designation. [44] As previously noted, the Court of Appeal upheld the sentencing judge on the point of whether the offence was “serious personal injury offence” and as result, at paragraph 41, Justice Jackson said “.. do not need to consider whether the trial judge erred in his interpretation of s. 752.1 and his reliance upon two year threshold before ordering an assessment.” [45] As the matter of penalty may be relevant, both counsel made submissions before me on the appropriate sentence in this case. The Crown referred to the decision of R. v. Kolarava, 2007 MBPC 66 (CanLII), in which Judge Preston, at paragraph 41 discussed an unreported decision with respect to assault peace officer: An unreported, but trenchant, decision of my colleague Sidney Lerner, PJ, R. v. McGinnis, delivered December 4, 2006, is illustrative of the paramount sentencing principles for an assault against peace officer. In this case, the offender had huge animosity towards the police and, in fact, kicked and slapped the police. He had 67 prior convictions, four of them assaulting peace officers. Judge Lerner highlighted the principles of specific deterrence, general deterrence and denunciation. Mr. McGinnis was sentenced to three years in jail. [46] The Crown noted that the charge under s. 270 of the Code, Assault Peace Officer, carries maximum of five years, while the relatively new offence of s. 270.1 of the Code, Assault Peace Officer with Weapon, has maximum of ten years. She suggested that given the prior record of the accused and the number of convictions with respect to peace officers, penitentiary sentence is warranted. [47] Defence counsel referenced paragraph 39 of the Kolarava decision where Judge Preston reviewed the following sentencing decisions: In the Rudderham decision, drunken young man with lengthy record for violence broke police officer’s nose. He was sentenced to two years in jail. In the Jodouin case, police officer’s leg was broken during the assault. Mr. Jodouin was incarcerated for two years. In the Brooks judgment, the Court sentenced Mr. Brooks to four-year jail sentence for severe and sadistic attack on police officer. Mr. Brooks had lengthy and related criminal record. In the Pederson case, the offender was 32 years old, had 50 prior offences, 13 of them violent, and was on parole for robbery at the time he assaulted police officer. He was sentenced to one year in jail. [48] Defence counsel submitted that the cases in which an offender was sentenced to term of two years are ones that involve serious violence. She suggested that an appropriate sentence would be that of six months in custody. [49] I find that given the serious nature of this offence, which carries a maximum penalty of 10 years, and taking into account Mr. Ben’s previous record, a sentence of two years or more is possible. [50] Mr. Ben is 50 years old and has lengthy criminal record, containing numerous convictions for violent offences, some of which involve the use of weapon. He has committed serious offences against peace officers in the past on seven occasions, including the present matter. He has an ongoing, unresolved alcohol addiction, which appears to be contributing factor to his reoffending. [51] For all these reasons, I find that it is not beyond the realm of possibility that Mr. Ben could be found to be a dangerous offender. I order that an assessment be conducted, as contemplated by s. 752.1 of the Code, for use as evidence in an application under s. 753 or s. 753.1. L. D. Dyck,

The accused was found guilty on a charge of assaulting a police officer contrary to s. 270.01(1) of the Criminal Code. The Crown applied under s. 752.1(1) for an order remanding the accused for an assessment by an expert for use as evidence in an application to have the accused declared a dangerous offender. The defence opposed the application on the basis that the predicate offence was not a serious personal injury offence and it was not within the realm of possibility that the accused could be found to be a dangerous offender. The accused was 50 years old. He had a criminal record commencing in 1976 which included 58 Criminal Code convictions. Fifteen of his prior convictions were for violent offences and six related to police officers. He had violated mandatory supervision orders on three separate occasions and had breached a conditional sentence order. The crimes of violence on his record involved the use of a weapon on more then one occasion. The facts of the predicate offence involved swinging a branch at a police officer. The officer had tasered the accused, but it had no effect. The accused grabbed a branch and swung it in sufficient proximity to cause the officer to back up, drop his taser and draw his sidearm. The officer provided a victim impact statement outlining the fear he experienced and the psychological impact the offence had on himself and his family. HELD: The offence is a serious personal injury offence as defined in s. 752. The accused picked up the branch with the intention of using it against the officer and it was of sufficient size that if the accused had struck the officer it would have caused serious damage. The accused's actions were found to have endangered or been likely to endanger the officer's life or safety and to have inflicted or been likely to inflict severe psychological damage. Given the number and nature of violent offences on the accused's record, the fact that many of the offences involve violence against police officers and the accused's prolonged issues with alcohol, a pattern of behaviour has been established. The best predictor of future behaviour is past behaviour and there is likelihood that the accused will cause injury in the future. The accused has demonstrated indifference to the reasonably foreseeable consequences to other persons of his behaviour. Given the serious nature of the offence and the accused's prior record for similar offences, a sentence of two years or more is possible. It is not beyond the realm of possibility that the accused could be found to be a dangerous offender. The assessment under s. 752.1 was ordered.

2_2011skpc80.txt

nan Date:20000419 C.A. No. 159139 NOVA SCOTIA COURT OF APPEAL [Cite as: Walsh v. Bona, 2000 NSCA 53] Glube, C.J.N.S.; Roscoe and Flinn, JJ.A. BETWEEN: SUSAN WALSH Katherine A. Briand for the appellant and Respondent in person Respondent Edward A. Gores and for the Third Party (AG of NS) nan THE ATTORNEY GENERAL OF CANADA Appeal heard: and THE ATTORNEY GENERAL OF February 7, 2000 NOVA SCOTIA Judgment delivered: Third Parties April 19, 2000 nan THE COURT: Appeal allowed; s. 2(g) of the Matrimonial Property Act, R.S.N.S. 1989, c. 275 declared to be unconstitutional and of no force or effect — declaration suspended for twelve (12) months per reasons for judgment of Flinn, J.A.; Glube, C.J.N.S. and Roscoe, J.A. concurring. FLINN, J.A.: [1] The appellant, Susan Walsh and the respondent, Wayne Bona, while not married, lived together in “a “common law relationship” (as they both described the relationship in their respective affidavits) for approximately ten years. Two children were born out of this relationship, in 1988 and 1990 respectively. The appellant and the respondent separated in 1995. [2] In January, 1999, the appellant commenced an application under the Matrimonial Property Act, R.S.N.S. 1989, c. 275 (MPA), seeking an equal division of the parties’ assets. In conjunction with that application, the appellant sought a declaration that the Canadian Charter of Rights and Freedoms is infringed by the definition of “spouse” in s. 2(g) of the MPA. The MPA does not apply to the appellant and the respondent because they do not come within the definition of “spouse” in s. 2(g): nan In this Act ..... (g) “spouse” means either of man and woman who (i) are married to each other, (ii) are married to each other by marriage that is voidable and has not been annulled by declaration of nullity, or (iii) have gone through form of marriage with each other, in good faith, that is void and are cohabiting or have cohabited within the preceding year, and for the purposes of an application under this Act includes widow or widower. [3] In her application, the appellant claims that s. 2(g) discriminates against her as common law spouse in violation of s. 15(1) of the Charter; and that such discrimination cannot be justified under s. of the Charter. The relief which the appellant seeks is “an order reading into the definition of spouse s. 2(g) of the MPA, the definition of common law spouse contained in the Family Maintenance Act, R.S.N.S. 1989, c. 160". The definition of “common law spouse” is contained in s. 2(m) of the Family Maintenance Act and provides as follows: nan In this Act, ..... (m) “spouse” means person married to another person and, for the purpose of this Act, includes man and woman who, not being married to each other, live together as husband and wife for one year. [4] Section 15(1) of the Charter provides as follows: (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. [5] With respect to her claim for division of the assets, including real estate, of the respondent, the appellant deposes in her affidavit, inter alia, as follows: 12. THAT am advised by my solicitor, and do verily believe, that the matrimonial property legislation in Nova Scotia does not apply to common-law relationships and as result have the legal obligation in any claim against the property of establishing not only that have claim, but the extent of that claim. 13. THAT am advised by my solicitor, and do verily believe, that if were married to the Defendant the Matrimonial Property Act would require the Defendant to establish that was not entitled to an equal division of all assets accumulated prior to and during the marriage. 14. THAT verily believe the Matrimonial Property Act is unconstitutional in that it discriminates against me on the basis of marital status and deprives me of rights that would otherwise be entitled to in regards to the distribution of property once spousal relationship has failed. This is even more so where the pre-existing spousal relationship was in all ways traditional and fairly long term relationship. [6] The matter came on for hearing before Justice Haliburton of the Supreme Court on May 14th, 1999. In addition to the respondent, the appellant gave notice of the application to both the federal and the provincial Crown. The federal Crown did not appear on the application. The provincial Crown appeared and made representations. The respondent was not represented by counsel at the hearing. [7] There was dispute between the appellant and the respondent on certain factual matters set out in their respective affidavits. There was dispute as to the length of the relationship (10 years versus years). There was dispute as to the actual contribution which the appellant made by way of employment (or otherwise), to the household; and there was dispute with respect to the purchase and use of certain assets. These factual disputes were not resolved. For the purpose of the constitutional challenge, the Chambers judge assumed the facts to be as follows (and these assumptions are not challenged on this appeal): Ms. Walsh and Mr. Bona established common law relationship which extended over period of some ten years, ending in 1995. The relationship began when both were resident in the Halifax/Dartmouth region. Two children have been born of the relationship: Edwin Frederick Bona, born December 27th, 1988, and Patrick Arthur Bona, born September 11th, 1990. During or about the month of December, 1988, Mr. Bona gained employment in Richmond County. The parties moved to River Bourgeois where they took up occupancy in residence owned by the two of them as joint tenants. After the separation of the parties in 1995, Mr. Bona continued to live in this home, assuming the debts and expenses connected therewith. Mr. Bona received in 1983 by way of gift from his father approximately 20 acres of land with cottage. The cottage itself was sold for price of $20,000 after the separation with $10,000 in proceeds being used to pay off matrimonial debts. The remaining recreational/woodland of approximately 13 acres remains property registered in the name of Mr. Bona alone. Based on the Affidavits of the two parties, the assets and liabilities at the time of separation may be: Residence $45,000 Cottage 20,000 Woodlot 6,500 Jeep 4,500 Household goods furnishings (nominal) Husband’s pension and RRSP 40,000 $116,000 $116,000 Less matrimonial debts of approximately $50,000 50,000 $66,000 By way of other proceedings, the Applicant has claimed payments for maintenance support for herself and the children from the Respondent. [8] On July 20th, 1999, Justice Haliburton filed written decision in which he concluded: 1. that marital status is not an analogous ground upon which to base claim of discrimination under s. 15(1) of the Charter; 2. alternatively, the exclusion of definition of common law spouse from the provisions of s. 2(g) of the MPA does not constitute discrimination under s. 15(1) of the Charter; and 3. alternatively, that if s. 2(g) of the MPA is found to be discriminatory, then it is saved by s. of the Charter. [9] The appellant appeals Justice Haliburton’s decision. [10] The respondent was present during the hearing of this appeal but made no representations. Representations were made by counsel for the appellant and counsel for the provincial Crown. [11] The appellant’s position on this appeal is that the Chambers judge erred in law in each of his three conclusions. The Crown concedes, on this appeal, that since the MPA applies only to married persons and not to cohabitees living in conjugal relationship, that there is differential treatment for the purpose of s. 15(1) of the Charter. The Crown also concedes that marital status is an analogous ground of discrimination. The Crown submits, however, that the differential treatment which arises, here, is not discrimination under the Charter; and, if it is discrimination, then it is saved by s. of the Charter. SECTION 15(1) ANALYSIS: [12] In the recent decision of the Supreme Court of Canada in Law v. Minister of Human Resources, 1999 CanLII 675 (SCC), [1999] S.C.R. 497, Justice Iacobucci, for the Court, summarizes the Court’s approach to the interpretation of s. 15(1) Charter issues, and provides set of guidelines for courts that are called upon to analyze discrimination claim under the Charter. In Law the Court was dealing with the constitutionality of certain provisions of the Canada Pension Plan which draw distinctions on the basis of age with regard to entitlement to survivors’ pensions. Justice Iacobucci reviewed the approach to s. 15(1) analysis in the Court’s seminal case of Andrews v. Law Society of B.C., 1989 CanLII (SCC), [1989] S.C.R. 143, following which he analyzed the Court’s development of the Andrews approach in subsequent decisions of Miron v. Trudel, 1995 CanLII 97 (SCC), [1995] S.C.R 418 and Egan v. Canada, 1995 CanLII 98 (SCC), [1995] S.C.R. 513. Justice Iacobucci then provides the following summary at pp. 548-549: Accordingly, court that is called upon to determine discrimination claim under s. 15(1) should make the following three broad inquiries: (A) Does the impugned law (a) draw formal distinction between the claimant and others on the basis of one or more personal characteristics, or (b) fail to take into account the claimant’s already disadvantaged position within Canadian society resulting in substantively differential treatment between the claimant and others on the basis of one or more personal characteristics? (B) Is the claimant subject to differential treatment based on one or more enumerated and analogous grounds? and (C) Does the differential treatment discriminate, by imposing burden upon or withholding benefit from the claimant in manner which reflects the stereotypical application of presumed group or personal characteristics, or which otherwise has the effect of perpetuating or promoting the view that the individual is less capable or worthy of recognition or value as human being or as member of Canadian society, equally deserving of concern, respect, and consideration? An Overview of the MPA: [13] In the Final Report on Reform of the Law Dealing with Matrimonial Property in Nova Scotia (Halifax: Law Reform Commission of Nova Scotia, March 1997) at p. 5, the Commission said the following concerning the adoption, in Nova Scotia, of the MPA in 1980: The Matrimonial Property Act was adopted in Nova Scotia in 1980 as part of general law reform movement in all the common law provinces which attempted to address dissatisfaction with the existing law regarding division of property on the ending of marriage. Prior to these reforms the law had been based on concept known as “separate property”. This was concept developed in the late nineteenth century which provided that upon marriage termination, whether by death or divorce, each spouse could retain only that property to which they could show legal title. In other words, there was no such thing as “family property” or “matrimonial assets”. This meant that in Nova Scotia until 1980, all property owned by married couple was considered to belong either to the wife exclusively or to the husband exclusively, unless they had expressly obtained legal title together as co-owners of the property. While the concept of separate property may seem unfair or archaic from contemporary perspective, it was originally adopted in 1884 in response to discontent with the common law’s approach to matrimonial property. Prior to 1884 husband was given full control over any property which his wife brought to the marriage or acquired during the marriage by any means. Separate property responded to the need of married women to be recognized as full legal persons distinct from their husbands. Changes in the law of matrimonial property did not, however, affect the right of wife to seek maintenance (also called support, or alimony) from her husband after divorce or separation. Both before and after the adoption of the Married Women’s Property Act, R.S.N.S. 1884, c. 94; now R.S.N.S. 1989, c. 272 in Nova Scotia in 1884, husband remained under an obligation to support his wife, an obligation which was in principle lifelong. For several decades after its adoption, separate property worked reasonably well in large majority of cases. Questions of title to property between husband and wife are usually irrelevant while the parties are living in harmony. It is only when death, separation or divorce intervenes that questions of title become important. Even death of spouse will not usually give rise to questions about title to property, as long as adequate provision has been made for the surviving spouse by will or by the law of intestate succession. In cases of separation or divorce, however, wives in particular were disadvantaged by the system of separate property. They had claim to maintenance from their husbands (or ex-husbands), but no claim to any property to which he had sole title, even if that property had been acquired over the course of long marriage and by their joint efforts. However, the low divorce rates which existed in Canada before the adoption of the federal Divorce Act, S.C. 1967-68, c. 24 in 1968, meant that the potential unfairness of the separate property system for divorced women did not come to public attention until the 1970s. Even then, judges were sometimes able to alleviate the harshness of separate property by ordering the ex-husband to pay larger amount for lump-sum maintenance, as provided for under the Divorce Act. Rising divorce rates, increasing economic prosperity, and growing dissatisfaction with the traditional roles assigned to married women all led to intense scrutiny in the 1960s and 1970s of family law in general and of the law of matrimonial property in particular. This scrutiny was given particular momentum by the decision of the Supreme Court of Canada in Murdoch v. Murdoch, 1973 CanLII 193 (SCC), [1975] S.C.R. 423. In that case, an Alberta rancher sought during the course of divorce proceeding to have her interest in land legally recognized. Although the land had been effectively acquired through the joint efforts of both her and her husband during 25-year marriage, title to the land was held solely in her husband’s name. The Supreme Court of Canada concluded that she had no legal right to any share of it on marriage breakdown. The injustice of this state of affairs led provincial and territorial governments to consider legislative reform of matrimonial property law. Murdoch was important in that it pointed to the need to rethink not just the law of matrimonial property, but also the law regarding support obligations within the family (family maintenance), and the law dealing with the rights of surviving spouses against the estates of their deceased spouses (the law of succession). There was also need to ensure that the family law of the various provinces and territories was in harmony with the federal Divorce Act of 1968. This Act, in addition to making divorce somewhat easier to obtain, also made it available on the same basis across Canada for the first time. The dramatic increase in the divorce rate after 1968 was undoubtedly the principal factor motivating the need to find “orderly and equitable” ways to settle ex-spouses’ financial affairs. The concept of separate property, which assumed each spouse to be equally positioned to earn an income and acquire property, had been revealed as inadequate at both practical and psychological level. Practically speaking, the prevalence of the male-provider/female-dependent model in the postwar period meant that the assumption of an equal opportunity to earn income was meaningless. The separate property model also seemed to be based on model of emotionless and rational calculation which was psychologically at odds with the acceptance of romantic love as the basis of marriage. Some provinces responded to the need for change by enacting omnibus family law reform legislation which covered both matrimonial property and family maintenance. Nova Scotia passed two acts, the Family Maintenance Act, R.S.N.S. 1989, c. 160 and the Matrimonial Property Act on the same date, June 5, 1980, and they came into effect on the same day, October 1, 1980. The Nova Scotia Matrimonial Property Act changed the existing law in two main ways: (1) by creating “pool” of assets owned by either spouse, known as “matrimonial assets”, which could be divided, regardless of legal title, in equal shares between the spouses upon marriage breakdown, divorce or the death of spouse; and (2) by giving each spouse an equal right of possession in the matrimonial home, without regard to which spouse has the title in law; and providing that no sale or mortgage of the matrimonial home can occur without the consent of both spouses. The right to equal division is presumption only, in that the Act also allows judges to make an unequal division in some cases, for example where the length of the marriage might indicate that an equal division would result in unfairness. The right to equal division arises only at the end of marriage. Before then, each spouse retains title to whatever property is in their name, and they may freely dispose of it without the consent of the other spouse. The only exceptions to this are the right to equal possession of the matrimonial home, and to veto any sale or mortgage of it. These rights arise at the moment of marriage and continue during the marriage. Does the MPA draw formal distinction between the appellant and others on the basis of one or more personal characteristics? [14] As to the first of the three broad inquiries which the Court must make in analyzing a claim for discrimination under s. 15(1) of the Charter (see Law), the MPA denies a person in a common law relationship benefits which are granted to a similar person in a marriage relationship. This denial of equal benefit, on the basis of marital status, personal characteristic, is therefore established. Counsel for the Crown agrees that there is differential treatment for the purpose of s. 15(1) of the Charter. Is the appellant subject to differential treatment on the basis of one or more of the enumerated and analogous grounds? [15] As to the second broad inquiry, marital status is not one of the enumerated grounds upon which claim for discrimination under s. 15(1) can be made. Is it an analogous ground? The Crown concedes that it is an analogous ground on the basis of the majority decision in Miron v. Trudel, 1995 CanLII 97 (SCC), [1995] S.C.R. 418. [16] In Miron, Justice McLachlin (as she then was), said the following at p. 497: What then of the analogous ground proposed in this case marital status? The question is whether the characteristic of being unmarried of not having contracted marriage in manner recognized by the state constitutes ground of discrimination within the ambit of s. 15(1). In my view, it does. [17] Justice McLachlin set out her reasons for coming to this conclusion as follows at p. 497-499: First, discrimination on the basis of marital status touches the essential dignity and worth of the individual in the same way as other recognized grounds of discrimination violative of fundamental human rights norms. Specifically, it touches the individual's freedom to live life with the mate of one's choice in the fashion of one's choice. This is matter of defining importance to individuals. It is not matter which should be excluded from Charter consideration on the ground that its recognition would trivialize the equality guarantee. Second, marital status possesses characteristics often associated with recognized grounds of discrimination under s. 15(1) of the Charter. Persons involved in an unmarried relationship constitute an historically disadvantaged group. There is ample evidence that unmarried partners have often suffered social disadvantage and prejudice. Historically in our society, the unmarried partner has been regarded as less worthy than the married partner. The disadvantages inflicted on the unmarried partner have ranged from social ostracism through denial of status and benefits. In recent years, the disadvantage experienced by persons living in illegitimate relationships has greatly diminished. Those living together out of wedlock no longer are made to carry the scarlet letter. Nevertheless, the historical disadvantage associated with this group cannot be denied. third characteristic sometimes associated with analogous grounds ‑‑ distinctions founded on personal, immutable characteristics ‑‑ is present, albeit in attenuated form. In theory, the individual is free to choose whether to marry or not to marry. In practice, however, the reality may be otherwise. The sanction of the union by the state through civil marriage cannot always be obtained. The law; the reluctance of one's partner to marry; financial, religious or social constraints ‑‑ these factors and others commonly function to prevent partners who otherwise operate as family unit from formally marrying. In short, marital status often lies beyond the individual's effective control. In this respect, marital status is not unlike citizenship, recognized as an analogous ground in Andrews: the individual exercises limited but not exclusive control over the designation. Comparing discrimination on the basis of marital status with the grounds enumerated in s. 15(1), discrimination on the ground of marital status may be seen as akin to discrimination on the ground of religion, to the extent that it finds its roots and expression in moral disapproval of all sexual unions except those sanctioned by the church and state. Of late, legislators and jurists throughout our country have recognized that distinguishing between cohabiting couples on the basis of whether they are legally married or not fails to accord with current social values or realities. As the amicus curiae has pointed out, 63 Ontario statutes currently make no distinction between married partners and unmarried partners who have cohabited in conjugal relationship. For example, the right to spousal maintenance is not conditioned on marriage: see Part III, Family Law Act, R.S.O. 1990, c. F.3, which establishes right to spousal support for those who have cohabited continuously for period of not less than three years or who have cohabited in relationship of some permanence and who have child. Other provinces have adopted similar benefit thresholds. In the judicial domain, judges have recognized the right of unmarried spouses to share in family property through the doctrine of unjust enrichment: Pettkus v. Becker, 1980 CanLII 22 (SCC), [1980] S.C.R. 834; Peter v. Beblow, 1993 CanLII 126 (SCC), [1993] S.C.R. 980. All this suggests recognition of the fact that it is often wrong to deny equal benefit of the law because person is not married. These considerations, taken together, suggest that denial of equality on the basis of marital status constitutes discrimination within the ambit of s. 15(1) of the Charter. If the evil to which s. 15(1) is addressed is the violation of human dignity and freedom by imposing limitations or disadvantages on the basis of the stereotypical application of presumed group characteristics, rather than on the basis of individual capacity, worth or circumstance, then marital status should be considered an analogous ground. ..... [18] It is clear, therefore, that marital status is an analogous ground upon which a claim for discrimination may be made under s. 15(1) of the Charter, and the Chambers judge erred in concluding otherwise. Does the differential treatment of the appellant by the provisions of the MPA discriminate in the substantive sense intended by s. 15(1) of the Charter? Does it violate the purpose of s. 15(1)? [19] Shortly after the Supreme Court’s decision in Law, the Court dealt with another equality rights issue in the case of M. v. H., 1999 CanLII 686 (SCC), [1999] S.C.R. 3. The issue in M. v. H. concerned the definition of “spouse” in the Ontario Family Law Act. That definition excluded person in same sex relationship. As result, the claimant could not obtain support order against her former partner on the breakdown of their same sex relationship. Eight judges, of the nine member Court, concluded that the applicant’s s. 15(1) Charter rights were infringed, and that the infringement was not saved by s. 1. Justice Cory and Justice Iacobucci, jointly, wrote the majority decision for themselves and four other members of the Court. [20] Referring to the Court’s decision in Law, Justice Cory said the following concerning the analysis to be made at this stage of the inquiry into the discrimination claim at pp. 53-54: 5. The Existence of Discrimination in Purposive Sense The determination of whether differential treatment imposed by legislation on an enumerated or analogous ground is discriminatory within the meaning of s. 15(1) of the Charter is to be undertaken in purposive and contextual manner. The relevant inquiry is whether the differential treatment imposes burden upon or withholds benefit from the claimant in manner that reflects the stereotypical application of presumed group or personal characteristics, or which otherwise has the effect of perpetuating or promoting the view that the individual is less capable or worthy of recognition or value as human being or as member of Canadian society, equally deserving of concern, respect, and consideration: Law, supra, at para. .... The question is whether this denial of benefit violates the purpose of s. 15(1). [21] As to the purpose of s. 15(1), Justice Iacobucci said the following in Law at p. 529: ..... It may be said that the purpose of s. 15(1) is to prevent the violation of essential human dignity and freedom through the imposition of disadvantage, stereotyping, or political or social prejudice, and to promote society in which all persons enjoy equal recognition at law as human beings or as members of Canadian society, equally capable and equally deserving of concern, respect and consideration. Legislation which effects differential treatment between individuals or groups will violate this fundamental purpose where those who are subject to differential treatment fall within one or more enumerated or analogous grounds, and where the differential treatment reflects the stereotypical application of presumed group or personal characteristics, or otherwise has the effect of perpetuating or promoting the view that the individual is less capable, or less worthy of recognition or value as human being or as member of Canadian society. Alternatively, differential treatment will not likely constitute discrimination within the purpose of s. 15(1) where it does not violate the human dignity or freedom of person or group in this way, and in particular where the differential treatment also assists in ameliorating the position of the disadvantaged within Canadian society. [22] How does the Supreme Court interpret the phrase “human dignity” when considering that the purpose of s. 15(1) is to prevent the violation of essential human dignity and freedom? Again, in Law, Justice Iacobucci said the following at p. 530: What is human dignity? There can be different conceptions of what human dignity means. For the purpose of analysis under s. 15(1) of the Charter, however, the jurisprudence of this Court reflects specific, albeit non-exhaustive, definition. As noted by Lamer C.J. in Rodriguez v. British Columbia (Attorney General), 1993 CanLII 75 (SCC), [1993] S.C.R. 519, at p. 554, the equality guarantee in s. 15(1) is concerned with the realization of personal autonomy and self-determination. Human dignity means that an individual or group feels self-respect and self-worth. It is concerned with physical and psychological integrity and empowerment. Human dignity is harmed by unfair treatment premised upon personal traits or circumstances which do not relate to individual needs, capacities, or merits. It is enhanced by laws which are sensitive to the needs, capacities, and merits of different individuals, taking into account the context underlying their differences. Human dignity is harmed when individuals and groups are marginalized, ignored, or devalued, and is enhanced when laws recognize the full place of all individuals and groups within Canadian society. Human dignity within the meaning of the equality guarantee does not relate to the status or position of an individual in society per se, but rather concerns the manner in which person legitimately feels when confronted with particular law. Does the law treat him or her unfairly, taking into account all of the circumstances regarding the individuals affected and excluded by the law? [23] Further, whether the MPA (the legislation which imposes differential treatment) has the effect of demeaning the appellant’s human dignity, involves an inquiry which is both objective and subjective. It involves the evaluation of reasonable person in circumstances similar to those of the appellant. Justice Iacobucci said the following concerning this perspective, in Law, at p. 532 33: ..... As applied in practice in several of this Court’s equality decisions, and as neatly discussed by L’Heureux-Dubé J. in Egan, supra, at para. 56, the focus of the discrimination inquiry is both subjective and objective: subjective in so far as the right to equal treatment is an individual right, asserted by specific claimant with particular traits and circumstances; and objective in so far as it is possible to determine whether the individual claimant’s equality rights have been infringed only by considering the larger context of the legislation in question, and society’s past and present treatment of the claimant and of other persons or groups with similar characteristics or circumstances. The objective component means that it is not sufficient, in order to ground s. 15(1) claim, for claimant simply to assert, without more, that his or her dignity has been adversely affected by law. As stated by L’Heureux-Dubé J. in Egan, supra, at para. 56, the relevant point of view is that of the reasonable person, dispassionate and fully apprised of the circumstances, possessed of similar attributes to, and under similar circumstances as, the claimant. Although stress that the inquiry into whether legislation demeans the claimant’s dignity must be undertaken from the perspective of the claimant and from no other perspective, court must be satisfied that the claimant’s assertion that differential treatment imposed by legislation demeans his or her dignity is supported by an objective assessment of the situation. All of that individual’s or that group’s traits, history, and circumstances must be considered in evaluating whether reasonable person in circumstances similar to those of the claimant would find that the legislation which imposes differential treatment has the effect of demeaning his or her dignity. (emphasis added) [24] In order to demonstrate that the impugned legislation violates his or her human dignity, there are various factors which may be referred to by claimant. In Law, Justice Iacobucci referred to four such “contextual factors”: 1. Pre-existing disadvantage the existence of pre-existing disadvantage, stereotyping, prejudice or vulnerability experienced by the individual or group at issue; 2. Relationship between grounds and the claimant’s characteristics or circumstances the correspondence, or lack of it, between the ground on which the discrimination claim is based, and the actual need, capacity or circumstances of the claimant or others; 3. Ameliorative purpose or effects the existence of an ameliorative purpose or effect may help to establish that human dignity is not violated where the person or group that is excluded is more advantaged with respect to the circumstances addressed by the legislation. Underinclusive ameliorative legislation that excludes from its scope the members of an historically disadvantaged group will rarely escape the charge of discrimination; and 4. Nature of the interest affected the discriminatory character of differential treatment cannot be fully appreciated without considering whether the distinction in question restricts access to fundamental social institution or affects basic aspect of full membership in Canadian society, or constitutes complete non-recognition of particular group. [25] It is important to note, here, that these contextual factors are only guidelines to assist the Court in the ultimate determination which has to be made; namely, whether the impugned legislation violates the purpose of s. 15(1). Justice Iacobucci made it quite clear, in Law, that this ultimate determination should not be made by way of “fixed and limited formula”. He said at p. 547, in Law: .....As stated above, these guidelines should not be seen as strict test, but rather should be understood as points of reference for court that is called upon to decide whether claimant’s right to equality without discrimination under the Charter has been infringed. [26] Justice Iacobucci also made it clear that the four contextual factors to which he made reference were only four of variety of factors to which claimant may refer: ..... there are undoubtedly others, and not all four factors will necessarily be relevant in each case. He said further at p. 545: ..... it should be clear that in some cases it will be relatively easy for claimant to establish s. 15(1) infringement, while in other cases it will be more difficult to locate violation of the purpose of the equality guarantee. In more straightforward cases, it will be clear to the court on the basis of judicial notice and logical reasoning that an impugned law interferes with human dignity and thus constitutes discrimination within the meaning of the Charter. Often, but not always, this will be the case where law draws formal distinction in treatment on the basis of enumerated or analogous grounds, because the use of these grounds frequently does not correlate with the need, capacity, or merit. It may be sufficient for the court simply to take judicial notice of pre-existing disadvantage experienced by the claimant or by the group of which the claimant is member in order for such s. 15(1) claim to be made out. In other cases, it will be necessary to refer to one or more other contextual factors. In every case, though, court’s central concern will be with whether violation of human dignity has been established, in light of the historical, social, political, and legal context of the claim. (emphasis added) [27] This analysis of Justice Iacobucci’s decision in Law, clearly demonstrates the error of one of the positions which the Crown has taken on this appeal. In its factum, dealing with the third step in s. 15(1) analysis, and after referring to the four contextual factors mentioned by Justice Iacobucci in Law, as “four key areas that should be considered under this third step”, the Crown then states: This framework is significant as it restricts the instances in which law may be found discriminatory. No section analysis is required if the impugned law operates in accordance with the above contextual factors. [28] This is not correct reading of the decision of the Supreme Court in Law. The Court’s main concern, according to Law, is whether violation of human dignity has been established in light of the historical, social, political and legal context of the discrimination claim. The contextual factors, as have mentioned, which are not all necessarily relevant in every case, are only guidelines to assist the Court in making the ultimate determination. [29] Justice Iacobucci confirmed, for example, in Law, as was enunciated initially in Andrews,(supra) that it would be rare case where differential treatment on one of the enumerated or analogous grounds in s. 15(1) is not discriminatory. [30] In finding no violation of s. 15(1) of the Charter, in Law, Justice Iacobucci said the following at p. 562: In these circumstances, recalling the purposes of s. 15(1), am at loss to locate any violation of human dignity. The impugned distinctions in the present case do not stigmatize young persons, nor can they be said to perpetuate the view that surviving spouses under age 45 are less deserving of concern, respect or consideration than any others. Nor do they withhold government benefit on the basis of stereotypical assumptions about the demographic group of which the appellant happens to be member. must conclude that, when considered in the social, political, and legal context of the claim, the age distinctions in s. 44(1)(d) and 58 of the CPP are not discriminatory. And further: conclude, then, that this is one of the rare cases contemplated in Andrews, supra, in which differential treatment based on one or more of the enumerated or analogous grounds in s. 15(1) is not discriminatory. [31] The decision in Law was followed by the majority judgment in M. v. H., (supra). The conclusion of the majority in M. v. H., on this third step of the s. 15(1) analysis, was in the words of Justice Cory at p. 58: ..... the human dignity of individuals in same sex relationships is violated by the impugned legislation. In light of this, conclude that the definition of “spouse” in s. 29 of the F.L.A. violates s. 15(1). The appellant’s claim of discrimination: [32] will now deal with the claim of discrimination which the appellant advances in this case. [33] The appellant has had long standing relationship with the respondent. They have lived together for approximately 10 years. Two children have been born of this relationship. The appellant and the respondent own their own home. Other assets have been acquired during their relationship. This relationship has all the hallmarks of marriage, with the exception that the appellant and the respondent have not gone through formal marriage ceremony. [34] Upon separation, the appellant has the right, under the provisions of the Family Maintenance Act, R.S.N.S. 1989, c. 160 to make application for: 1. custody of the children; 2. spousal and child support; and 3. limited rights to “occupation” of the family home. note that when the jurisdiction under the Family Maintenance Act was vested in the Family Court of Nova Scotia, this provision was held to be ultra vires of the Family Court (see Rudderham v. Rudderham (1988), 85 N.S.R. (2d) 267 (C.A.)). assume, without deciding, that to the extent that the jurisdiction over the Family Maintenance Act is now exercised by the Supreme Court of Nova Scotia (Family Division), such provision is enforceable by that Court. [35] The appellant is denied, however, the benefits of the MPA. Those benefits include the presumption that the married spouse is entitled to an equal division of the assets accumulated during the marriage. The other married spouse has the onus of rebutting that presumption. The appellant, on the other hand, as an unmarried cohabitee, has only available to her the common law remedies of resulting trust and unjust enrichment, about which will say more later in these reasons. The benefits under the MPA also include the ability of the married spouse to apply for exclusive possession of the matrimonial home. The appellant’s rights, on the other hand, are, at best, restricted to limited right of “occupation” of the family home. [36] The only reason the appellant is denied the benefits of the MPA is because she is not married. [37] recognize that the appellant and the respondent could have entered into cohabitation agreement under which the appellant, on the termination of the relationship, would receive the same, or similar, benefits as are provided for in the MPA. However, married couple has the ability to do that as well. The problem is that, in each case, it requires the agreement of two persons. Such an agreement is not something over which the appellant, or the married spouse, has sole control. The legislature obviously recognized that fact, in enacting the MPA, but only to the extent of making provision for the married spouse. [38] As an unmarried spouse, the appellant loses the benefit of the presumptions contained in the MPA in the event that no cohabitation agreement is reached. If married couple either does not think about an agreement or thinks an agreement is unnecessary, or is unable to reach consensus in pre-nuptial agreement, the MPA, as the default position, will apply in the event of separation. The common law couple on the other hand is denied the benefit of the Act as the default position, if they for whatever reason do not enter into an agreement. [39] The existence of marriage contract between married spouses is however not necessarily determinative of the final division of their property. It is among the numerous factors the court must consider on an application pursuant to the Act for division of matrimonial assets. [40] In Clarke v. Clarke, 1990 CanLII 86 (SCC), [1990] S.C.R. 795 the Supreme Court of Canada dealt with the question of whether certain pension benefits were matrimonial property under the provisions of the MPA. Justice Wilson, writing for the court, said the following about the purpose of the MPA at p. 807: Thus the Act supports the equality of both parties to marriage and recognizes the joint contribution of the spouses, be it financial or otherwise, to that enterprise. The Act goes further and asserts that, due to this joint contribution, both parties are entitled to share equally in the benefits that flow from the union -the assets of the marriage. The Act is accordingly remedial in nature. It was designed to alleviate the inequities of the past when the contribution made by women to the economic survival and growth of the family was not recognized. In interpreting the provisions of the Act the purpose of the legislation must be kept in mind and the Act given broad and liberal construction which will give effect to that purpose. (My emphasis) [41] Essentially, the appellant contends that the MPA does not recognize the contribution which she has made to the economic survival and growth of her family. That, she claims, is discrimination under s. 15(1) of the Charter. [42] The appellant’s claim must be looked at objectively, and from her perspective. Does the denial of the benefit of the provisions of the MPA to the appellant violate the purpose of s. 15(1)? In light of the historical, social, political and legal context of the appellant’s claim, does the MPA have the effect of demeaning the appellant’s human dignity, and does it thereby constitute discrimination within the meaning of s. 15(1) of the Charter? [43] Of the contextual factors referred to in Law (as points of reference for the Court in determining whether the MPA violates the purpose of s. 15(1)), the most relevant factors in this case are pre-existing disadvantage, and the nature of the interest which is affected. [44] Justice Iacobucci explained the significance of pre-existing disadvantage, in Law, as follows at p. 534: As has been consistently recognized throughout this Court’s jurisprudence, probably the most compelling factor favouring conclusion that differential treatment imposed by legislation is truly discriminatory will be, where it exists, pre-existing disadvantage, vulnerability, stereotyping, or prejudice experienced by the individual or group: see, e.g., Andrews, supra, at pp. 151-53, per Wilson J., p. 183, per McIntyre J., pp. 195-97, per La Forest J.; Turpin, supra, at pp. 1331-33; Swain, supra, at pp. 992, per Lamer C.J.; Miron, supra, at paras. 147-48, per McLachlin J.; Eaton, supra, at para. 66. These factors are relevant because, to the extent that the claimant is already subject to unfair circumstances or treatment in society by virtue of personal characteristics or circumstances, persons like him or her have often not been given equal concern, respect, and consideration. It is logical to conclude that, in most cases, further differential treatment will contribute to the perpetuation or promotion of their unfair social characterization, and will have more severe impact upon them, since they are already vulnerable. [45] And further at p. 535: ..... emphasize, then, that any demonstration by claimant that legislative provision or other state action has the effect of perpetuating or promoting the view that the individual is less capable, or less worthy of recognition or value as human being or as member of Canadian society (whether or not it involves demonstration that the provision or other state action corroborates or exacerbates an existing prejudicial stereotype), will suffice to establish an infringement of s. 15(1). (emphasis added) [46] In paragraph 17 of these reasons have quoted at length from the decision of Justice McLachlin in Miron, the substance of which will highlight here. Persons involved in an unmarried relationship constitute historically disadvantaged group. Justice McLachlin says that there is ample evidence that unmarried partners have often suffered social disadvantage and prejudice. Historically, in our society, the unmarried partner has been regarded as less worthy than the married partner. Disadvantages have ranged from social ostracism through denial of status and benefits. In theory, Justice McLachlin says, the individual is free to choose whether to marry or not; however, the reality may be otherwise. She compares discrimination, on the basis of marital status, to discrimination on the ground of religion to the extent that it finds its roots in moral disapproval of all sexual unions except those sanctioned by the church and state. Justice McLachlin then notes that there is some recognition that distinguishing between cohabiting couples, on the basis of whether they are married or not, fails to accord with current social values or reality. Some benefits have been accorded to unmarried partners who have cohabited in conjugal relationship (child and spousal support the right to claim on the basis of unjust enrichment and resulting trust). This, she suggests, is recognition of the fact that it is often wrong to deny equal benefit of the law because person is not married. will refer, later in these reasons, to some of the Nova Scotia Statutes which make such provision. [47] The Crown submits, in this case: 1. the marital spouse is not “entitled” to 50% of the matrimonial assets under the MPA. The marital spouse has only presumption of entitlement. It cannot be said to be the denial of an equal benefit under the law simply because the appellant cannot avail herself of presumption that she is entitled to 50% of the assets on the break-up of her relationship with the respondent; and 2. unlike Miron, where there was no other avenue open to the unmarried spouse to obtain the insurance benefits which were the subject of that action, the appellant has available to her the common law rights to claim benefits using the concepts of unjust enrichment and constructive trust. Also, unlike Miron, the appellant has the ability to contract into joint property regime (with respect to this latter point, have already dealt with that issue previously in these reasons); and 3. the presumption of entitlement in the MPA does not deal with the merit or worth of the relationship itself (i.e., whether it was long, short, loving or abusive), but with respect to the disposition of property acquired by married persons. That, counsel submits, does not go to human dignity. [48] With respect to the Crown’s first point, as Justice Cory noted in M. v. H., the Crown’s analysis takes too narrow view of “benefit” under the law, and it is view that the Court should not adopt. Justice Cory said at p. 53: ..... The type of benefit salient to the s. 15(1) analysis cannot encompass only the conferral of an economic benefit. It must also include access to process that could confer an economic or other benefit: Egan, supra, at paras. 158-59; Vriend v. Alberta, 1998 CanLII 816 (SCC), [1998] S.C.R. 493, at para. [49] With respect to the second point, the fact that the appellant might be able to avail herself of the equitable remedies of unjust enrichment and resulting trust, can hardly be equated with the presumptive rights that married person enjoys under the MPA. Pursuing such equitable remedies is difficult, time consuming, costly and uncertain (see, for example, Peter v. Beblow, 1993 CanLII 126 (SCC), [1993] S.C.R. 980). If the appellant must resort to these equitable remedies, she has the burden of proof on several issues. She must prove that she made contribution related to the acquisition of property, the value of that contribution, and that there was reasonable expectation of receiving compensation. Another difficulty, associated with such equitable remedies, is that it may not be easy to marshal the necessary evidence in the context of spousal relationship. [50] As to the third point, as the Nova Scotia Law Reform Commission noted in its Report (supra), the MPA, and similar statutes in other parts of this country, were enacted following the decision of the Supreme Court of Canada in Murdoch v. Murdoch, 1973 CanLII 193 (SCC), [1975] S.C.R. 423. The Supreme Court decided that, although certain land had been effectively acquired through the joint efforts of both the wife and her husband during their 25 year marriage, because title to the land was held solely in the husband’s name, the wife had no legal right to any share of it on the marriage breakdown. The affront to the appellant’s human dignity which is caused by the MPA is the fact that the MPA recognizes that legally married spouse contributes to the marriage relationship, financially, and in other ways (e.g., raising family). The MPA also recognizes that these contributions allow married couple to accumulate matrimonial assets (see Clarke v. Clarke, supra). The appellant enjoys no such recognition. She must resort to the equitable principles of resulting trust and unjust enrichment, and have already referred to the difficulties associated with those remedies. Further, in constructive trust action, the factors which are considered by the Court under s. 13 of the MPA (in determining whether to make an unequal division of assets) are not, generally, applicable. Further, on this third point, the appellant may have, at best, limited rights to occupation of her family home; whereas the married spouse may apply for exclusive possession of the matrimonial home under the MPA. further benefit to the married spouse, under the MPA which an unmarried spouse does not enjoy is protection from disposition of the matrimonial home. The appellant’s dignity is violated because her relationship with the respondent is considered less worthy of recognition than the relationship of married couple; and, as result, she is denied access to the benefits of the MPA. [51] The MPA perpetuates the view that unmarried partners are less worthy of recognition, or value, as human beings or as members of Canadian society, equally deserving of concern, respect and consideration. That is sufficient to establish an infringement of s. 15(1) (see Law). [52] This is not one of the rare cases contemplated in Andrews, in which differential treatment based on an analogous ground in s. 15(1) of the Charter, is not discriminatory (see Miron, per McLachlin, J. at p. 752). [53] In my opinion, reasonable person in circumstances similar to those of the appellant would find that the MPA, which imposes differential treatment, has the effect of demeaning the appellant’s human dignity. As result, there is violation of s. 15(1) of the Charter. SECTION ANALYSIS: [54] It is now necessary to consider, notwithstanding that the MPA is discriminatory, whether the Charter infringement is “demonstrably justified in free and democratic society”, and thereby saved by s. of the Charter. [55] In Vriend v. Alberta, 1998 CanLII 816 (SCC), [1998] S.C.R. 493 at p. 554, Justice Iacobucci said the following concerning the framework of s. analysis: ..... The analytical framework for determining whether statutory provision is reasonable limit on Charter right or freedom has been set out many times since it was first established in R. v. Oakes, 1986 CanLII 46 (SCC), [1986] S.C.R. 103. It was recently restated in Egan v. Canada, 1995 CanLII 98 (SCC), [1995] S.C.R. 513 at para. 182, which was quoted with approval in Eldridge v. British Columbia (Attorney General), 1997 CanLII 327 (SCC), [1997] S.C.R. 624 at para. 84: limitation to constitutional guarantee will be sustained once two conditions are met. First, the objective of the legislation must be pressing and substantial. Second, the means chosen to attain this legislative end must be reasonable and demonstrably justifiable in free and democratic society. In order to satisfy the second requirement, three criteria must be satisfied: (1) the rights violation must be rationally connected to the aim of the legislation; (2) the impugned provision must minimally impair the Charter guarantee; and (3) there must be proportionality between the effect of the measure and its objective so that the attainment of the legislative goal is not outweighed by the abridgement of the right. In all s. cases the burden of proof is with the government to show on balance of probabilities that the violation is justifiable. Pressing and Substantial Objective: [56] Where, as here, law has been found to violate the Charter owing to under inclusion, the legislation as whole, the impugned provisions, and the omission itself, are all properly considered in determining whether the objective is pressing and substantial (see Vriend per Iacobucci, J. at p. 555; and M. v. H. per Iacobucci and Cory, JJ. at p. 62-63). [57] The preamble to the MPA is as follows: WHEREAS it is desirable to encourage and strengthen the role of the family in society; AND WHEREAS for that purpose it is necessary to recognize the contribution made to marriage by each spouse; AND WHEREAS in support of such recognition it is necessary to provide in law for the orderly and equitable settlement of the affairs of the spouses upon the termination of marriage relationship; AND WHEREAS it is necessary to provide for mutual obligations in family relationships including the responsibility of parents for their children; AND WHEREAS it is desirable to recognize that childcare, household management and financial support are the joint responsibilities of the spouses and that there is joint contribution by the spouses, financial and otherwise, that entitles each spouse equally to the matrimonial assets. [58] The Crown tendered no evidence to discharge its onus under s. 1; and, as result, the Court is left with only the Crown’s submissions in its factum and during the course of oral argument in support of justification. Before dealing with the Crown’s submissions there are two points which should be noted, with respect to this case on the general subject of justification under s. 1: a. this is not case where including those in common law relationship within the provisions of the MPA would have financial impact on government; and b. there is no suggestion that including those in common law relationship within the provisions of the MPA would have any negative impact on married persons. [59] The Crown submits that the purpose of the MPA is to strengthen the role of the family in society; and that the “promotion of marriage” is also purpose of the legislation. [60] In considering the objective of the MPA as whole, the preamble is somewhat misleading. The functional objective of the legislation is, clearly, to provide for an orderly and equitable settlement of the economic affairs of married persons on the breakdown of the marriage relationship. As the Law Reform Commission of Nova Scotia, in its Final Report at p. 15, suggests: it creates mechanism which provides for the equal sharing of matrimonial assets on the termination of marriage. With the exception of the provisions relating to the home, the Act applies only at the end of marriage, whether by death, divorce, annulment or final separation. It does not purport to tell people how they should arrange their affairs during their marriage, only what will happen to their property at the end. [61] In the sense that the legislation recognizes that the contribution of spouses to marriage, regardless of their form, are equal and should be shared equally it could be said to be an objective of the legislation to strengthen the role of the family in society. However, since the functional purpose of the legislation is to make provision for the resolution of property disputes upon termination of the marriage, it can hardly be said to be an objective of this legislation to promote marriage. However, even if it could be said that the objective of the legislation was to support the institution of marriage over, for example, common law relationships, such an objective has been called into question as discriminatory objective which could not be justified under s. 1, in light of the decision of the Supreme Court of Canada in Miron (see: Constitution Law of Canada, Peter W. Hogg, looseleaf edition, vol. 2, s. 52.17). [62] Nevertheless, as the Law Reform Commission of Nova Scotia noted in its Final Report, by deeming contributions to marriage relationship to be equal, regardless of their form, the legislation effected an important change in the law which had traditionally ignored, or undervalued, unpaid work in the home. Or, as Justice Wilson said in Clarke, the legislation recognized “the contribution made by women to the economic survival and growth of the family”. To that extent, the objective of the legislation is pressing and substantial. [63] In determining whether the objective of the legislation is pressing and substantial must also consider the impugned provision and the omission itself; that is, the omission, of those in common law relationship, from the definition of “spouse”. Is there any clear objective of this legislation for which the exclusion of those in common law relationship is pressing and substantial? What objective of this legislation makes it pressing and substantial that it is to apply for the benefit of those in marriage relationship (no matter how short the duration of the marriage); and yet it does not apply for the benefit of those in long standing common law relationship such as that of the appellant and the respondent? [64] The Crown submits that the two forms of relationship (i.e., marriage on the one hand, and the common law relationship of the appellant and the respondent on the other hand) are clearly different and deserve different treatment. In support of that proposition, the Crown cites C. Davies, “Cohabitation Outside of Marriage: The Path to Reform” in M.E. Hughes, E.D. Pask, eds., National Themes in Family Law (Toronto: Carswell, 1988) 195; and C. Davies, “Matrimonial Property Legislation: Justifiably Restrictive or Offensively Narrow?” (National Judicial Institute, Family Law Seminar, February 9-11, 2000) [unpublished]. The thesis of the author is that the distribution provisions of statutes like the MPA, should not be extended to people who cohabit outside of marriage. There are, of course, others who take the opposite position (see W.H. Holland, “Intimate relationships in the new millennium: the assimilation of marriage and cohabitation?” Can. J. Fam. L. [forthcoming in 2000] and W. Holland, “Marriage and Cohabitation Has the Time Come to Bridge the Gap?” (L.S.U.C. Special Lectures in Family Law, 1993). The Ontario Law Reform Commission’s Report on The Rights and Responsibilities of Cohabitants Under the Family Law Act (Toronto: 1993) strongly recommends the inclusion of those in common law relationship within the provisions of the Ontario Family Law Act. That Commission recommends that the definition of “spouse” in s. 1(1) of the Ontario Family Law Act should be amended to include either man and woman who are not married to each other and have cohabited, (a) continuously for period of not less than three years (or some other period of time prescribed by statute), or (b) in relationship of some permanence if they are parents of child. [65] Similarly, the Law Reform Commission of Nova Scotia recommends such changes. It proposes new Domestic Property Division Act which defines “domestic relationship” as meaning relationship where two adults have cohabited for at least one year in personal relationship in which one provides personal or financial commitment and support of domestic nature for the benefit of the other. [66] Further, in response to the Crown’s submission that marriage and common law relationships are different, and, therefore, deserve to be treated differently, there is strong dicta from the Supreme Court of Canada on the subject of whether these two relationships are different when considering the division of property and assets. In Pettkus v. Becker, 1980 CanLII 22 (SCC), [1980] S.C.R. 834, the Court considered the applicability of constructive and resulting trusts to common law relationship. Dickson, J. (as he then was) noted that courts in other jurisdictions have not regarded the absence of marital bond as any problem in applying the doctrine of unjust enrichment to common law relationships. He said the following at p. 850: see no basis for any distinction, in dividing property and assets, between marital relationships and those more informal relationships which subsist for lengthy period. This was not an economic partnership nor mere business relationship, nor casual encounter. Mr. Pettkus and Miss Becker lived as man and wife for almost twenty years. Their lives and their economic well-being were fully integrated. [67] More recently, in Peter v. Beblow, (supra), one of the issues was whether the provision of domestic services during 12 years of cohabitation in common law relationship is sufficient to establish the proprietary link which is required before the remedy of constructive trust can be applied to redress the unjust enrichment of one of the parties in the relationship. [68] In the course of referring to the submission of counsel that the British Columbia Legislature had chosen to exclude unmarried couples from the right to claim an interest in the matrimonial assets under the Family Law Act of British Columbia, McLachlin, J. (as she then was), referred to that exclusion as an “injustice”. [69] She said the following at p. 994: Finally, come to the argument that, because the legislature has chosen to exclude unmarried couples from the right to claim an interest in the matrimonial assets on the basis of contribution to the relationship, the court should not use the equitable doctrine of unjust enrichment to remedy the situation. Again, the argument seems flawed. It is precisely where an injustice arises without legal remedy that equity finds role. [70] The Crown also suggests that marital relationships are more stable than common law relationships, providing another basis which justifies making distinction between the two relationships. The Crown provides no evidence in support of that submission. However, even assuming marriage relationships to be more stable, stability is hardly justification for providing that only married persons should have the benefits of legislation the functional purpose of which is to provide for an orderly and equitable settlement of the economic affairs of married persons on the breakdown of their marriage. Further, Statistics Canada indicates that substantial changes are taking place in both marriage relationships and common law relationships, and there is narrowing of the gap between the two. [71] On October 14, 1997, Statistics Canada released its data, from the 1996 Census, on the subject of Marital status, common-law unions and families. Included in that Report is the following: Marriage fragile bond for more people Marriage appears to be fragile bond for more and more individuals. One result was the continuation of the upward trend over the last 25 years in the number of one-parent families. At the time of the 1996 Census, there were over 1.6 million people who reported that they were divorced, 28% increase from 1991. Women accounted for more than half of divorced individuals in 1996, since women do not remarry as often as men. In 1996, 695,675 individuals reported that they were separated, up 15% from 1991. Again, more than half were women. And also: Families: growth strongest among common-law couple families Of all family structures, growth was strongest among common-law couple families. In 1996, 920,635 such families were counted, up 28% from 1991. (The Census defines common-law partners as two persons of opposite sex who are not legally married to each other, but live together as husband and wife in the same dwelling.) In 1996, one couple in seven in Canada was living common-law, compared to about one in nine in 1991. The marital status of individuals in common-law unions remained almost the same between 1991 and 1996: nearly two-thirds of them were single, while over quarter were divorced. Almost half of the common-law couple families included children, whether born to the current union or brought to the family from previous unions. Common-law families were by far most frequent in Quebec, which had 400,265, or 43% of all such families in Canada. One couple in four (24%) in Quebec lived common law. Between 1991 and 1996, the number of common-law families grew fastest in New Brunswick and the Northwest Territories. Increases were also above the national average of 28% in Newfoundland, Prince Edward Island and Quebec, and in the Yukon. And further: Substantially more children in common-law couple families In 1996, 735,565 children were living in common-law couple families, substantial 52% increase from 1991. Nationally, 14% of all children under the age of six were living in common-law couple families. In Quebec, by comparison, 31% of all children in this age group were in common-law couple families. Every province and territory recorded substantial increases among children living with common-law couples. In Quebec, 343,050 children lived in families of common-law couples in 1996, up 69% from 1991, the biggest increase among the provinces. In Ontario, there were 164,550 children living in common-law couple families, up 45% from five years earlier. [72] With specific reference to Nova Scotia, Statistics Canada’s report indicates that, as proportion to all families in Nova Scotia in 1996, approximately 10% were common law families. [73] The Crown also submits that any interference with the present distinction which is made between married couples and those in common law relationship, would interfere with the right to individual autonomy of those who do not wish to marry. In my view, providing those in common law relationship with the ability to contract out of the MPA is of far less consequence than denying all others in common law relationship the benefits of the MPA. [74] The Legislature of Nova Scotia has seen fit, in some of its legislation, to treat common law relationships in the same way as marriages. Common law spouses under these statutes are allowed to make the same claims, or seek the same benefits, as those who are (or were) married. In some of these statutes common law spouses are included within an expanded definition of spouse (see: Family Maintenance Act, R.S.N.S. 1989 as am. by S.N.S. 1997, c. 3, s. 1, and Pension Benefits Act, R.S.N.S. 1989, c. 340 as am. by S.N.S. 1992, c. 27; 1993, c. 35). In others there is separate definition setting out who is spouse (including common law spouse), (see: Workers’ Compensation Act, S.N.S. 1994-95 and Compensation for Victims of Crime Act, R.S.N.S. 1989, c. 83). As well, there are statutes that have separate provisions pertaining to those in common law relationships (see: Fatal Injuries Act, R.S.N.S. 1989, c. 163). [75] The Legislature has also provided, in the Human Rights Act, R.S. 1989, c. 214, that it is unlawful to discriminate against an individual or class of individuals on account of marital status, in respect of the provision of or access to services or facilities; accommodation; purchase or sale of property; employment; volunteer public service; publication broadcast or advertisement; and membership in professional association, business or trade association, employer’s organization or employees’ organization. [76] The Crown has not provided any satisfactory explanation as to why it is pressing and substantial to exclude persons in common law relationship from the provisions of the MPA while, at the same time, including them, on the same basis as married persons, in other provincial legislation. [77] Finally, the Crown submits in its factum: ..... an extension of property rights in the face of uncertainty in relationships between persons gives rise to great deal of uncertainty in the law, particularly with respect to conveyancing and estate matters. An extension of proprietary interests, particularly in the sphere of real estate, to include cohabitants under the Act may well do considerable harm to the interests of outsiders who will be affected and who have no notice of the state of the internal affairs cohabitants...... [78] In my view, this is practical problem which can be overcome by carefully drafted legislation prepared after consultation with members of the legal profession. Further, whatever that practical problem is, it is not so insurmountable as to justify what has been determined in these reasons to be violation of .15(1) of the Charter. As an aside, whatever the practical problem, it did not prevent the Legislature of the Northwest Territories from providing regime for both those in marriage relationship and those in defined common law relationship to have the same rights with respect to property and assets in its new Family Law Act. This Statute was adopted by Nunavut (see Family Law Act (Nunavut) S.N.W.T. 1997, c. 18, as duplicated for Nunavut pursuant to the Nunavut Act, S.C. 1993, c. 28, s. 29; as am. S.C. 1998, c. 15, s. 4.) [79] In view of all of the above, the Crown has not demonstrated that the exclusion, from the provisions of the MPA, of those in common law relationship, is “pressing and substantial”. That being the case, the Crown has failed to discharge its onus of proving that the discrimination in this case is demonstrably justified in a free and democratic society. [80] The remedy which the appellant seeks is an order reading into the definition of “spouse” in s. 2(g) of the MPA the definition of common law spouse contained in the Nova Scotia Family Maintenance Act. The definition of common law spouse as contained in s. 2(m) of the Family Maintenance Act provides as follows: nan In this Act, ..... (m) “spouse” means person married to another person and, for the purpose of this Act, includes man and woman who, not being married to each other, live together as husband and wife for one year. [81] agree with the submission of the Crown that such is not an appropriate remedy in the circumstances of this case. [82] The Supreme Court of Canada held in Schachter v. Canada, 1992 CanLII 74 (SCC), [1992] S.C.R. 679 that severance and reading in will only be warranted in the clearest of cases and the courts should be careful to ensure that the severance/reading in would not constitute an unacceptable intrusion into the legislative domain. [83] The Crown makes the following submissions in its factum with which agree: The Act [MPA] includes provisions which act as preconditions to applications that presume the existence of legal marriage. Section 12 sets out when an application for division of matrimonial assets may be made only after petition for divorce is filed, an application is filed for declaration of nullity, after separation or death of spouse. These preconditions presuppose the existence of legal marriage and are not available to unmarried cohabitants. Unless these preconditions are struck, or the provisions establishing entitlement to the preconditions are themselves amended to include unmarried cohabitants, merely including the phrase “common law spouse” in the word “spouse”, as requested by the Appellant, has no practical effect since unmarried spouses cannot meet the existing preconditions. There is no universally accepted definition of common law spouse: Rossu v. Taylor (1998), 1998 ABCA 193 (CanLII), 39 R.F.L. (4th) 242]. Even the [Final Report of the Law Reform Commission of Nova Scotia] advocates remedy significantly different than that claimed by the Appellant. It is not appropriate to pick and choose from any one of possibly ninety pieces of legislation which provide for recognition of differing forms of relationships to become the basis of reading in: see for example, Fatal Injuries Act, R.S.N.S. 1989, c. 163, s. 13; Compensation for Victims of Crime Act, R.S.N.S. 1989, c. 83, s. 2(2); Family Maintenance Act, R.S.N.S. 1989, c. 160, s. 2(m); Insurance Act, R.S.N.S. 1989, c. 231; Medical Professional Corporation Act, S.N.S. 1995-96, c. 11, s. 2(h); Municipal Conflict of Interest Act, R.S.N.S. 1989, c. 299, s. 2(i); Occupational Therapists Act, S.N.S. 1998, c. 21, s. 2(y); Pension Benefits Act, R.S.N.S. 1989, c. 340, s. 2(aj); Public Service Superannuation Act, R.S.N.S. 1989, c. 377, s. 2(k); Workers’ Compensation Act, S.N.S. 1994-95, c. 10, s. 1(ab). The legislation provides for different meanings for the phrases and one cannot simply cut and paste from one to another. ..... The government ought to have the opportunity to design new legislative scheme that conforms with Charter requirements, rather than having the Court amend some parts and the legislature other parts, with the result that the whole would be less than ideal. [84] In my opinion, it is for the Legislature, not the Court, to define with precision common law relationships which are to be included within the provisions of the MPA so as to comply with the constitution. Obviously, it is not required that the MPA apply to any transitory relationship. However, whether the recommendations of the Law Reform Commission of Nova Scotia (supra), some refinement of those recommendations, or completely different scheme is adopted, is matter which is best decided by the Legislature. Likewise, it is the Legislature’s role to deal with such other refinements to the MPA which are occasioned by the inclusion of parties in common law relationship, including whatever transitional provisions are deemed necessary. [85] I would, therefore, allow this appeal. I would declare s. 2(g) of the MPA to be of no force or effect. However, I would temporarily suspend the effect of that declaration for a period of twelve (12) months to enable the Legislature to devise new criteria for eligibility under the MPA, including whatever transitional provisions may be deemed necessary, and to pass new legislation that meets the constitutional requirements of s. 15(1) of the Charter, as set out in these reasons for judgment. [86] As counsel agreed, there will be no order as to costs. [87] In the course of preparing these reasons for judgment have given consideration to the question of what, if any, individual remedy may be available, and appropriate, to the appellant given the circumstances which result to her from these reasons for judgment. This particular issue was not addressed by counsel at the hearing of this appeal. [88] If counsel for the appellant wishes to make submission to the panel on this issue (what, if any, individual remedy may be available and appropriate to the appellant given the reasons for judgment on this appeal) the panel is prepared to receive that submission and hear counsel on the matter. [89] The submission on behalf of the appellant is to be filed with the Court, with counsel for the Crown and with the respondent Mr. Bona, on or before May 8th, 2000. Any responses by the Crown and the respondent Mr. Bona are to be filed with the Court, and counsel for the other parties, on or before May 23rd, 2000. The Registrar will then contact counsel and make arrangements for date on which the parties can be heard. [90] If counsel for the appellant does not wish to make submission on this issue, counsel should advise the Registrar accordingly, and the Court will issue an order giving effect to these Reasons for Judgment. Otherwise, the Order for Judgment will await the Court’s ruling on the further submissions. Flinn, J.A. Concurred in: Glube, C.J.N.S. Roscoe, J.A.

The appellant and respondent lived together in common law relationship for approximately ten years. Two children were born of the relationship; the parties owned home as well as other assets. They separated in 1995. The appellant brought an application under s. 275 of the Matrimonial Property Act seeking an equal division of assets. She also sought a declaration that the Charter is infringed by the definition of spouse in s. 2(g) of the Act, because it does not include or recognize her common law relationship. The Chambers judge dismissed the application. He found that marital status is not an analogous ground upon which to base claim of discrimination under s. 15(1) of the Charter; or, in the alternative, that s. 2(g) does not constitute discrimination under s. 15(1) of the Charter; or, in the further alternative, that if s. 2(g) is discriminatory, it is saved by s. of the Charter. Allowing the appeal, that marital status is an analogous ground, and that s. 2(g) is discriminatory under s. 15 of the Charter because it denies a person in a common law relationship benefits which are granted to a similar person in a marriage relationship. The Crown did not discharge its onus of proving that the discrimination is demonstrably justified in a free and democratic society. The court rejected the appellant's submission that common law should be read in to the Act, and instead declared s. 2(g) to be unconstitutional and of no force and effect. This declaration was suspended for 12 months to enable the legislature to devise new criteria for eligibility under the Act that do not infringe s. 15(1) of the Charter.

e_2000nsca53.txt

QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2018 SKQB 90 Date: 2018 03 16 Docket: QBG 1576 of 2017 Judicial Centre: Saskatoon BETWEEN: THE EMPIRE LIFE INSURANCE COMPANY and THE AGRICULTURAL CREDIT CORPORATION OF SASKATCHEWAN RESPONDENT Docket: QBG 1318 of 2017 Judicial Centre: Saskatoon BETWEEN: THE AGRICULTURAL CREDIT CORPORATION OF SASKATCHEWAN and EMPIRE LIFE INSURANCE COMPANY Counsel: Sharilyn C. Nagina for Empire Life Insurance Company Randall T. Klein for the Agricultural Credit Corporation of Saskatchewan DECISION AND DIRECTIONS SCHERMAN J. March 16, 2018 Introduction [1] The ultimate issue in these proceedings is who is entitled to certain insurance premium surpluses totalling $3,552,881.00 as of October 31, 2016 plus interest accrued since. These surpluses were generated between September 1, 1990 when Empire Life Insurance Company [Empire Life] issued the subject Group Life Insurance Policy No. G-6253 [Policy] to Agricultural Credit Corporation of Saskatchewan [Ag Credit] and January 1, 2015 when Ag Credit terminated the Policy. [2] Empire Life is in possession of the surpluses. It claims no interest in the funds but is concerned that the claim of Ag Credit to these funds is not clear and that the rights to refund of such surpluses may belong to individual borrowers of Ag Credit whose lives were insured over the years under the Policy and whom it views as having paid the premiums resulting in the surplus. Thus it seeks to interplead, pay the monies into court and have the Court give directions as to how the determination of ownership will be decided including what persons will be given notice of the proceedings. [3] number of preliminary issues fall to be decided under the Originating Application of Empire Life. In its application Empire Life asks the Court for various relief including:a. An interpleader order permitting it to pay the surpluses into court; b. An order releasing it from any further participation in the proceedings upon payment into court or in the alternative directing that it is entitled to payment of its current and future costs associated with the interpleader proceedings; c. An order releasing it from any liabilities arising from the accumulation and administration of the surplus or from paying it into court or as directed by the Court; and d. Directions as to what other parties are entitled to notice of their or other applications and as to how those other parties’ interests are to be represented or dealt with. [4] In its application Ag Credit takes the positions that:a. The funds paid as premiums were Crown funds and thus any surpluses are the property of the Crown and properly payable to it as the Crown’s agent;b. Since no other person has a competing interest to Ag Credit’s right and title, the interpleader order sought by Empire Life is unnecessary; c. The surpluses can and should be paid to it without the necessity of any interpleader order or any directions as to the involvement of or representation of other persons. [5] Ag Credit would have the Court determine, on this application, that it alone is entitled to payment of the funds in question. It argues that if in fact other parties do have claim to some or all of these funds, those individuals would remain entitled to advance their claims directly against it. Background Facts [6] In the course of providing loans to various agricultural producers Ag Credit (and predecessor “FarmStart”) had made arrangements with Empire Life (or predecessor insurer) to provide group life insurance for its borrowers. The purpose was to ensure that outstanding loans were paid in the event of borrowers’ deaths. While Ag Credit says it paid the total annual premiums to Empire Life with its funds and thus takes the position that the surplus is its property, the evidence available to me leads me to the conclusion that it collected, or was entitled to collect, each borrower’s respective premium amount from them either before or after paying the premiums. [7] The Empire Life form of policy in evidence before me makes it clear that Empire Life was making group life insurance available to Ag Credit clients or borrowers for amounts equal to the total of their loans and forgivable grants. Clause of the Policy stipulates that it is the clients who become insured upon making qualifying application. The borrowers are the insured parties and the beneficiary of the insurance is Ag Credit to the extent of the borrower’s indebtedness. The Policy provides in clause that: If, on the death of Client, the amount of insurance exceeds the amount owing by the Client to the Corporation, the Corporation shall pay such excess to the Client’s estate. [8] Clause 15 sets forth an annual premium per $1,000 of loan that varies with the age of the clients. The policy repeatedly speaks of the premium payable by the client or borrower. This same clause states that: The Insurance Company shall not be required to accept payment of any premium otherwise than from the Corporation. All premiums collected from the Client by the Corporation shall be promptly remitted to the Insurance Company. [9] The Empire Life policy and predecessor polices contained provisions for so-called “Experience Credits”. While the following statement is simplistic summary, it is sufficient to set the stage for the decisions made herein. Empire Life was in effect administering group life insurance program for Ag Credit, under which various permitted “charges” were made against the premiums paid, including: a. All death benefits paid; b. Charges for disability benefits provided, taxes paid in respect of premiums paid; and c. An administration fee to Empire Life and various contingency reserve charges. The excess of premiums paid over such charges were designated as “Experience Credits” and/or various categories of “Reserves” under the Policy. It is these Experience Credits and Reserves which have generated the above-noted surplus. In other words, the premiums paid have over the life of the policy generated surplus over and above the payout of benefits under the policy and the charges or costs of administering the group life insurance program. [10] The program stipulated form of application for creditor group life insurance under which each borrower made an individual application for creditor insurance under the group policy. This application form provided for an annual premium dependent on the amount of the insurance, that the insurance would terminate on the failure to pay the premium, for waiver of premium in the event of disability and for refund of unearned premiums in the event of termination by the creditor. [11] While various of the borrowers may have defaulted in payment of loan obligations and/or related insurance premiums and Ag Credit may have chosen to nonetheless pay the premiums on their behalf, the evidence available to me provides me with no details regarding the extent to which this occurred. Clause 17 of the Policy provides: The Corporation shall advise the Insurance Company in writing of any Client who has not made payments as required by the Corporation. Such loan shall remain insured provided the premiums for such loans are paid by the Corporation as due. The only logical conclusion can reach at this stage is that for the most part the individual borrowers paid the premiums applicable to them by paying those amounts to Ag Credit who in turn remitted premium payments to Empire Life. [12] The surplus of $3,552,881.00 as of October 31, 2016, plus interest accrued since, originated from accounts designated “Experience Credit Account”, “Claims Fluctuation Reserve” and “Unearned Premium Reserve”. The amounts so generated have been transferred to two separate Experience Credit Accounts totalling the above-noted surplus. [13] The Policy provisions with respect to these reserves or accounts are as follows: a. Regarding the Experience Credit Account clause 23 provides, inter alia: 23. EXPERIENCE RATING Ninety days after the end of each Policy Year the Insurance Company shall calculate the charges as set out in Section 24 of this Policy. An Experience Credit shall be calculated for each month of the policy year. On the last day of each month the Experience Credit shall be the difference between premiums paid and all charges incurred during the month. Each such premium or charge shall also include any interest earned from the date the transaction occurs to the last day of the month. Interest will be earned at rate as defined in Section 25. The Insurance Company shall establish an Experience Credit Account on behalf of the Corporation. After transferring the amounts required under Section 25 of this Policy to the Claims Fluctuation Reserve the balance, if any, shall be credited to the Experience Credit Account. Any amounts allocated to this account shall be deemed to be credited on the last day of the month. In no event will the Experience Credit Account have negative balance. The Claims Fluctuation Reserve will be debited by such an amount as necessary for the Experience Credit Account to have zero balance. Interest shall be credited to amounts left on deposit in the Experience Credit Account for each full day that such amounts remain in the account. Interest on the Claims Fluctuation Reserve and the Unearned Premium Reserve shall be earned for each day in the month. Clause 23 is silent with respect to the disbursement of funds remaining in this account at Policy Termination. b. Regarding the Claims Fluctuation Reserve Clause 25 provides: 25. CLAIMS FLUCTUATION RESERVE At the end of each month the Insurance Company shall transfer the Experience Credit to the Claims Fluctuation Reserve (hereinafter called the Reserve) along with any interest earned on the Reserve and the Unearned Premium Reserve until the Reserve attains the Maximum Amount. Upon attainment of the Maximum Amount such funds, or portions thereof, shall be credited to the Experience Credit Account. The interest rate applied in respect of any such day shall be based on 95% of the 90 Day Treasury Bill Rate in effect at the end of the previous month. The maximum amount to be held in reserve is $150,000.00 Should this policy be cancelled any credit balance in the Reserve, less any reasonable charges for expenses incurred in the cancellation, shall be refunded to the Corporation, once it has been established that all claims have been reported. The Corporation shall use such refund to reduce future premiums payable by the Client. After the Insurance Company has refunded the credit balance in the Reserve after the cancellation of this policy, no further claims are payable by the Insurance Company. c. Regarding the Unearned Premium Reserve (referenced in Clause 23) under the heading Charges at Clause 24 g. the Policy states as follows: g. The increase in the Unearned Premium Reserve for the Policy Year where the Unearned Premium Reserve is defined as the aggregate of the unearned portion of the premium remitted on behalf of each Client. The unearned portion of any Client’s premium at any point in time is the prorata share of such premium from that point in time until the next premium due date for such Client. Clause 24 g. is silent with respect to the disbursement of funds remaining in this reserve at Policy termination. [14] During the initial years of the Policy, section of the Superintendents’ Guidelines governing group insurance provided as follows: “8. In the case of contract of creditors group insurance where specific charge is levied against the debtor to pay the whole or part of the cost of the insurance: (a) experience refunds or dividends shall not be directly or indirectly paid or allowed unless the experience refund or dividend, (i) is paid to the debtor; or (ii) is applied to stabilize premiums under the contract; or (iii) is retained by the Insurer to stabilize future premiums for similar type contracts.” [15] The Superintendents’ Guidelines were replaced by the Canadian Life and Health Insurance Association Inc.’s Creditor’s Group Insurance Guideline (the “CLHIA Creditor’s Group Guideline”) in March 1993. The CLHIA Creditor’s Group Guideline (as amended in September 2003 and June 2009) do not address any restrictions with respect to the disbursement of any accumulated reserve. [16] Given the absence of clear direction in the Policy and any legislation or Superintendent of Insurance Guidelines, Ag Credit and Empire Life had extended discussions about how to deal with surplus. In November 26, 2014 letter of Ag Credit to Empire Life, Ag Credit stated inter alia, the following: ACS has now received legal opinion through an outside legal firm that the surplus belongs to those that contributed to the surplus over time less any costs incurred (ie. legal fees etc.). Two potential distribution options were identified i) pro rata option or ii) lump sum option. ACS feels that distributing under the Pro Rata Option is the fairest option as Clients who contributed higher amount of premiums would receive correspondingly greater share in the surplus. ACS has compiled the data from 1988 to present and is prepared to distribute any remaining surplus to the approximate 6,000 Clients on pro rata basis, with an individual Client’s share being based on his or her respective contribution towards the accumulation of the surplus. ACS would also be entitled to receive, on pro rata basis, any life insurance premiums that were written off as these premiums were remitted to Empire Life on the Clients behalf. [17] Subsequently Ag Credit changed its mind as to how to deal with the surplus and has assumed its present position that its clients have no interest in the surpluses and says the surpluses are the property of the Crown and should be paid directly to it. Empire Life’s position is that it holds the surpluses in trust for those entitled to the same and that there is significant uncertainty as to who is entitled to participate in the surplus. Thus it seeks to pay the monies into court and have the Court give directions as to process under which decision will be made as to who is entitled to the surpluses. Analysis of Ag Credit’s peremptory position that the surplus is the property of the Crown and thus there is no need for an interpleader. [18] am unable to conclude, at this stage of the proceedings, that Ag Credit owns the surplus and is entitled to an order that the surplus funds be paid to it. Indeed, find it somewhat disconcerting that Ag Credit would now take the position that the surplus is its property and the Court should order the funds be paid to it without consideration of the potential claims of the insured individuals. [19] In November of 2014 Ag Credit was clearly proposing to Empire Life that the surplus be distributed, on pro rata basis, to the approximate 6,000 of their clients who had paid the insurance premiums. This proposal must have been made based on then held view that the surplus belonged to those clients as opposed to Ag Credit. [20] Ag Credit has not shared with the Court the legal opinion it was relying on when it made its November 2014 proposal. do not need to know the details of such opinion to infer that it is probable that legal opinion reasoned that if the clients paid more premiums than necessary to fund the insurance they were purchasing, then in the absence of clear contractual language providing otherwise, they had claim to their overpayment of premiums or the surplus. [21] Ag Credit now attempts to finesse what is clearly an arguable case that the surplus belongs to the clients with the proposition that since the Crown in right of Saskatchewan, via its agent Ag Credit, paid the insurance premiums to Empire Life with Crown funds, that the surplus has always been and remains the property of the Crown. This proposition or argument has the following logical flaws: a. The premise that the Crown paid the insurance premiums to Empire Life is not founded in fact and to so state is distortion of the true nature and effect of what occurred. It may be literally correct to say the Crown paid the insurance premiums to Empire Life; but the monies it was paying to Empire Life were either first collected by Ag Credit from its clients (and thus what was being paid was in reality the clients’ money) or were being paid by Ag Credit for and on behalf of the clients who were obligated to reimburse Ag Credit for this payment made on their behalf; b. Ag Credit argues that it was not fiduciary to its clients and the relationship was simply one of debtor/creditor. While the overall relationship was one of debtor/creditor, it is clearly arguable that to the extent Ag Credit collected monies from the clients for the purposes of paying their insurance premiums, Ag Credit had fiduciary duty to do precisely that; c. The fact that s. 4(4) of The Agricultural Credit Corporation of Saskatchewan Act, SS 1983-84, A-8.1, provides: (4) All real or personal property and all money acquired, administered, possessed or received by the corporation is the property of the Crown and is, for all purposes, including taxation of whatever nature and description, deemed to be the property of the Crown. should not be interpreted as making monies it receives, either in trust or pursuant to specific contractual obligation, to use for the benefit of the client, property of the Crown. This section was never intended to deem property of third parties received by Ag Credit as property of the Crown, without duty to account back to the rightful owner. Such an interpretation would be contrary to the spirit and intent of the Act generally and quite simply not plausible interpretation to be given to the section given the purpose of the legislation. d. Ag Credit argues that because “public money” is defined in The Financial Administration Act 1993, SS 1993, F-13.4, as being: (p) “public money” means money: (i) belonging to the Government of Saskatchewan; or (ii) held by the Government of Saskatchewan or an employee or officer of the Government of Saskatchewan for the benefit of or in trust for any government or any person; any monies it held in trust to pay the premiums was public money and thus the resulting surplus is public money. In my opinion this definition does not assist Ag Credit’s reasoning. This definition applies within the confines of that Act. The phrase “public money” is not found within Ag Credit’s Act. The argument that since by definition any monies received by Ag Credit are “public money” within the meaning of The Financial Administration Act, 1993, they are also therefore “public money” under Ag Credit’s Act and thus Crown property for the present purposes is non-sequitur. [22] am not satisfied on any of the arguments advanced by Ag Credit that it paid the premiums with its own money and thus any overpayment of premiums or surpluses arising under the contract are its property. Ag Credit is entitled to take the position that when all factors are considered it has valid claim to the surplus by virtue of the language of the Policy. But equally am satisfied there is good arguable case that the insured clients of Ag Credit may be the persons entitled to the return of some or all of the surpluses arising under the Policy. Thus, what have categorized as Ag Credit’s peremptory reasons for claiming entitlement to the surpluses fails, the evidence before me satisfies me, consistent with the concerns of Empire Life, that the insured parties under the Policy may be the persons entitled to the return of the surplus premiums paid. [23] Counsel for Ag Credit says that should dismiss Ag Credit’s peremptory basis claims to the surplus; then the determination as to whether Ag Credit or its insured clients are entitled to the participation in the surplus is an exercise to be determined by interpretation of the language of the policies. See for example the decision in Dolansky L’Association des chirurgiens-dentistes du Québec (1994), 1994 CanLII 1311 (ON CA), 17 OR (3d) 817 (Ont CA). He acknowledges there are limited judicial decisions dealing with entitlement to surplus funds under an insurance policy and that none of the reported decisions deal directly with the issue here confronted. Since the matter appears to be primarily an interpretative exercise, it is important that the Court have the assistance of counsel advancing the arguments available to the insured clients. [24] Without limiting the scope of arguments that will ultimately be advanced by any party, I have decided, for the reasons outlined below, that I will be appointing a representative party to advance the case and interests of the insured clients class. The Interpleader Application [25] Given my conclusion that insured clients under the Policy have an arguable claim to the surpluses in question and since Ag Credit maintains its claim to these same funds, this is an appropriate case to grant interpleader relief under Rule 6‑75 of The Queen’s Bench Rules. Empire Life has satisfied me, as required by Rule 6-76, that a. It claims no interest in the subject matter in dispute, other than for charges or costs; b. It does not collude with any of the claimants. am of the opinion that Empire Life has acted in full compliance with its duty of uberrima fides in bringing the potentially valid claims of the insured clients to the attention of the Court and in resisting the claim of Ag Credit to pay the monies direct to it; and c. Empire Life is willing to pay the monies into court or as the Court directs. [26] It should also be noted that s. 254(1) of The Saskatchewan Insurance Act, RSS 1978, S-26, provides as follows: 254(1) Where the insurer admits liability for the insurance money or any part thereof, and it appears to the insurer that: (a) there are adverse claimants; or (b) the whereabouts of the person entitled is unknown; or (c) there is no person capable of giving or authorized to give valid discharge therefor who is willing to do so; the insurer may apply ex parte to the court for an order for payment of money into court, and the court may upon such notice, if any, as it deems necessary, make an order accordingly. Under this provision similarly have the power to order payment of the monies into court and make appropriate orders as to notice and procedure to deal with adverse claims. [27] Given the directions will be providing below, chose not to make an order providing interpleader relief without hearing further from both Empire Life and Ag Credit. It occurs to me that these parties may conclude that it is in the interests of all parties that the funds actually remain in the hands of Empire Life, with the potential of continuing to earn interest, rather than be placed on deposit with the Court while this matter proceeds forward to final decision. ask that these parties consult and advise me whether they are able to agree on an appropriate form of interpleader relief order. If they are not able to agree, either party may bring the matter back before me for decision. Directions as to how the Matter will Proceed [28] While interpleader relief is appropriate, the appropriate form and nature of additional relief or direction is not immediately apparent. At this stage the competing claims to surpluses are on the one hand Ag Credit and on the other hand class of some 6,000 potential claimants, none of whom have been given notice of the interpleader application or of Ag Credit’s application. In its submissions to the Court Empire Life suggests that the stakeholders that may have an interest in the surplus include, in addition to Ag Credit, the following: 55. Based on the terms of the Policy, Empire Life submits that in addition to ACCS, other stakeholders that may have an interest in the Surplus include: (a) The current Clients at the time of Policy termination; (b) Those Clients who are still alive and who paid premiums over time, which resulted in the accumulated Surplus; (c) The estates of those Clients who paid premiums over time which resulted in the accumulation of the Surplus; and (d) Those Clients who received premium holidays as result of the Surplus, having their premiums covered through the allocation of funds through the Surplus. [29] If each of the some 6,000 insured clients are found to be entitled to each receive per capita proportion of the $3,552,881.00 surplus, the individual entitlement would be in the order of $592.00. It is obvious that the costs of litigating the issue of entitlement could be significant and may well substantially reduce potential recovery. The class of some 6,000 insured persons will not necessarily have identical interests or claims. Various subordinate entitlement issues have been identified as including the following: 56. Empire Life submits that additional entitlement issues include: (a) Does the Surplus revert only to ACCS to be utilized as it deems fit, including reverting the funds to General Revenues for the Province of Saskatchewan? (b) Does the Surplus revert to Clients who paid the premiums that resulted in the Surplus? (c) If the Surplus reverts to the Clients who paid the premiums, do they receive interest on their portion of the Surplus or are they treated the same as those Clients whose payments were more current? (d) If the Surplus reverts to the Clients, is the Surplus distributed on pro-rated basis without adjustment for the time over which their contributions were held? (interest and inflation adjustment) (e) If the Surplus reverts to the Clients, do the Clients who got premium holiday share in pro-rated or other basis in the Surplus? (f) If the Surplus reverts to the Clients, is there to be differentiation between Clients who are still alive and where there is an Estate? (g) If the Surplus reverts to the Clients, should there be minimum payment threshold before Client or an Estate of Client is entitled to participate? (h) If the Surplus reverts to the Clients, does it go to current Clients as at the time of termination of the Policy, or should it be distributed on pro-rata basis to all Clients who have ever been insured under the Policy and the Original Policy? (i) Do Clients covered by certificates issued under the Original Policy benefit from any Surplus? (j) Should the distribution of the Surpluses contained in each of the reserve funds be treated the same? (k) If ACCS has advanced premiums on behalf of Clients and not been reimbursed, is ACCS entitled to reimbursement of premiums it advanced on behalf of Clients? [30] While have concluded that the insured clients’ class needs to participate in assisting the Court in determining whether Ag Credit or they as class are entitled to receive the surplus, the economic realities of the litigation necessarily involved needs to be recognized. In this respect have regard to the following: Rule 1-3 of The Queen’s Bench Rules: 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; (c) to encourage the parties to resolve the claim themselves, by agreement, with or without assistance, as early in the process as is practicable; (d) to oblige the parties to communicate honestly, openly and in timely way; and (e) to provide an effective, efficient and credible system of remedies and sanctions to enforce these rules and orders and judgments. (3) To achieve the purpose and intention of these rules, the parties shall, jointly and individually during an action: (a) identify or make an application to identify the real issues in dispute and facilitate the quickest means of resolving the claim at the least expense; (b) periodically evaluate dispute resolution process alternatives to full trial, with or without assistance from the Court; (c) refrain from filing applications or taking proceedings that do not further the purpose and intention of these rules; and (d) when using publicly funded Court resources, use them effectively. (4) Resolving claim justly in timely and cost effective way includes, so far as is practicable, conducting the proceeding in ways that are proportionate to: (a) the amount involved in the proceeding; (b) the importance of the issues in dispute; and (c) the complexity of the proceeding. Section 27 of The Queen’s Bench Act, 1998, SS 1998, Q-1.01: 27(1) Procedure in the court is to be in accordance with this Act and the rules of court. (2) Where, in particular case, procedure is not expressly provided for by this Act or the rules of court, the procedure to be followed is the procedure for similar circumstance or the procedure that judge, on an application made ex parte or on notice, directs. Rules 2-10, 2-11 and 2-13 of The Queen’s Bench Rules: 2-10(1) If numerous persons have common interest in the subject of an intended claim, one or more of those persons may make or be the subject of claim or may be authorized by the Court to defend on behalf of or for the benefit of all. (2) If certification order is obtained pursuant to The Class Actions Act, an action referred to in subrule (1) may be continued pursuant to that Act. 2-11(1) In this rule: “absent person” means person for whom representative is or may be appointed pursuant to this rule and includes an unborn person, an unascertained person, or person or member of class of persons who cannot readily be ascertained, found or served, who has present, future, contingent or unascertained interest in, or may be affected by, proceeding; («personne absente») “proceeding” means proceeding concerning: (a) the interpretation of: (i) deed, will, contract or other instrument; or (ii) an enactment, order in council or municipal bylaw or resolution; (b) the determination of question arising in the administration of an estate or trust; (c) the approval of sale, purchase, compromise or other transaction; (d) the approval of an arrangement pursuant to The Trustee Act, 2009; (e) the administration of the estate of deceased person; or (f) any other matter if the Court considers it necessary or desirable. (« instance») (2) In proceeding, the Court may appoint one or more persons to represent an absent person. (3) If an appointment is made pursuant to this rule, judgment in the proceeding is binding on an absent person represented pursuant to subrule (2), unless the Court, in the same or subsequent proceeding, orders otherwise. (4) The Court may approve settlement that it is satisfied is for the benefit of the represented or absent persons if, in proceeding: (a) settlement is proposed; and (b) either: (i) person is represented in the proceeding by person appointed pursuant to this rule who consents to the settlement; or (ii) some of the persons interested in the proceeding are not parties but to require service on them would cause undue expense and delay and there are other parties of the same interest who consent to the settlement. (5) If the settlement mentioned in subrule (4) is approved, it is binding on the absent persons but, in the same or subsequent proceeding, the Court may order that the absent person is not bound if the Court is satisfied that: (a) the order was obtained by fraud or non-disclosure of material facts; (b) the interests of the absent person were different from those represented at the hearing; or (c) for some other sufficient reason the order should be set aside. 2-13(1) The Court may order that person may, without becoming party to the proceeding, intervene in the proceeding as friend of the Court for the purpose of assisting the Court by way of argument or by presentation of evidence. (2) The Court may make an order pursuant to subrule (1) on any terms as to costs or otherwise that the Court may impose. [31] have concluded that have the jurisdiction to and should, at this point in the proceedings, appoint single representative to advance the position of the insured clients class as whole entity. The economic realities of fragmenting this class into subordinate classes or interest groups strongly militate against such course of action being pursued. If separate representation of the various permutations and combinations of potential interest groups occurred it is probable the resulting cost of so proceeding would largely consume the surplus funds. My present perspective is that the appropriate approach is for the Court to designate one person to represent the interests of the overall class of insured clients with the objective of achieving pro rata participation in the surplus. However, in so directing leave it open for an application or applications to be made in the future, on behalf of one or more subsets of the insured creditors, that they be treated as having distinct interest or claim. [32] have concluded that it is not appropriate or necessary for notice of the proceedings to be served on each of the some 6,000 insured clients at this stage of the proceeding. Rather, find this insured client class to be, within the meaning of Rule 2‑11(1) “a class of persons who cannot readily be ascertained, found or served, who has present, future, contingent or unascertained interest in” “proceeding” concerning the interpretation of contract or other instrument and such other matters in relation to the subject Policy that it is necessary or desirable representation order be made. This representative’s costs and expenses will be paid out of the surplus funds. [33] have concluded that, at least for the present, only one representative will be appointed and only that representative needs to be party to the proceedings. However, before appointing such representative am asking Empire Life and Ag Credit to arrange further hearing before me so that may have their input on whom it would be appropriate or inappropriate to designate as such representative. In addition, this hearing can also consider further specific directions that the parties may feel are appropriate or necessary. This hearing can be either in person or by telephone, should those parties agree on the latter. [34] Without limitation on their input, ask these parties to jointly consider as possible representative of the insured client class either the Superintendent of Insurance (see s. 3(1) of The Saskatchewan Insurance Act) or the lawyer who previously provided an opinion to Ag Credit that the insured clients were entitled to the surplus as appropriate representatives. While appreciate that Ag Credit may have concerns designating such lawyer as the representative, the knowledge base that this lawyer already has is significant financial incentive to appointing that individual. Empire Life’s Cost of Past and Future Involvement [35] In its application Empire Life sought: (a) Directions that Empire Life is entitled to payment of its current and future costs associated with the proceedings; (b) Releasing Empire Life from any further participation in the proceedings; and (c) Releasing Empire Life from any liabilities arising from the accumulation and administration of the surplus. [36] Given that have not yet made determination as to whether the surplus funds will be presently paid into court or potentially continue to be maintained and managed by Empire Life until the proceedings are concluded, it is premature for me to give such directions or make such orders. Given what have stated in paragraph 27 above, defer decisions on these matters until have had the input requested. Once have determined whether Empire Life will have any form of further participation in the proceedings will give directions as to the payment of its current and future costs associated with the proceedings, after hearing submissions of both parties on the matter. Further wish to hear submissions by the parties regarding whether or not it would be appropriate to make an order releasing Empire Life from any liabilities arising from the accumulation and administration of the surplus. Conclusion [37] The decisions I have made herein can be summarized as follows:a. I dismiss Ag Credit’s application for an order that the surplus funds be paid to it on the grounds I have categorized as peremptory basis claims;b. Empire Life is entitled to some form of interpleader relief in respect of the surplus funds;c. A representative will be appointed to represent the class of insured clients in the proceedings to determine whom as between Ag Credit and those clients is entitled to the surplus in question;d. In light of these decisions, I wish to hear further submissions from Ag Credit and Empire Life as to:i. Whether the surplus should be paid into court or can continue to be administered by Empire Life during the ensuing proceedings; ii. Who might be an appropriate representative to appoint for the insured clients as class; iii. What should be the entitlement of Empire Life to past and possible future costs; and iv. Whether Empire Life should, at this point, be released from any liabilities with respect to the accumulation and administration of the surplus. [38] Counsel may make arrangements for the further submissions requested through the Registrar. If either Ag Credit or Empire Life require any clarification of this decision and directions before arranging to make the further submissions, telephone conference call can be arranged through the Registrar’s office.

Civil Procedure – Queen’s Bench Rules, Rule 6-75 The applicant insurance company sought an order for interpleader pursuant to Queen’s Bench rule 6-75 regarding premium surpluses it held in the amount of $3,550,800 that were generated between 1990, when it issued a group life insurance policy to the respondent, Agricultural Credit Corporation (Ag Credit), and 2015, when Ag Credit terminated the policy. The applicant requested that the monies be paid into court and that directions be provided as to how the determination of ownership would be decided. Ag Credit took the position that the funds paid as premiums were Crown funds and thus any surpluses were the property of the Crown and properly payable to Ag Credit as its agent. It argued that the interpleader order was unnecessary. The purpose of the group life insurance was to ensure that outstanding loans made by Ag Credit to borrowers were paid in the event of the borrowers’ deaths. Individual borrowers paid the premiums applicable to them by paying those amounts to Ag Credit, who remitted the payments to the applicant. There was no clear direction regarding the surpluses in the policy or in the Superintendent of Insurance Guidelines or applicable legislation. HELD: The application was granted subject to the court hearing further submissions from both parties regarding such things as whether the surplus should be paid into court or left to be administered by the applicant during the proceedings. The court found that the insurance company was entitled to some form of interpleader relief and dismissed Ag Credit’s claim to the surplus. It ordered that a representative be appointed to represent the class of insured clients in the proceedings in order to determine who was entitled to the surplus.

7_2018skqb90.txt

R. V. HOUSTON QB08175 Date of Judgment: April 22, 2008 Number of Pages: 12 QUEEN'S BENCH FOR SASKATCHEWAN Citation: 2008 SKQB 174 Date: 2008 04 22 Docket: 1/07 Judicial Centre: Saskatoon BETWEEN: HER MAJESTY THE QUEEN and SIMON M. HOUSTON Counsel: Michael A. Segu for Her Majesty The Queen William H. Roe, Q.C. for Simon M. Houston SENTENCE LAING C.J.Q.B. April 22, 2008 [1] Mr. Houston pled guilty at the opening of trial to one count ofdistributing child pornography, in the form of written works, between the 12th ofJune and the 8th of August, 2005, contrary to s. 163.1(3) of the Criminal Code ofCanada. [2] In the time in question Mr. Houston was active on pedophile website dedicated to man-girl relationships. The Crown evidence is that he had 1,200 postings on the website in this period, which included 11 stories that are the subject of the charge, and described sexual activity between adults and either infants or preteen girls. The moderator of the website encouraged stories, and Mr. Houston also urged others to submit stories. In one posting on the website on June 18, 2005 he wrote: am getting pissed off with the apathy in this ... group. Ya post pictures galore, but NOT once have any of you ever told juicy story, voyeuristic situation, or perhaps sexual encounter with preteen girl. Just put down you were 11 when it happened, instead of 35 or 23. But let's get some entertaining stories here, guys.!! Is something wrong with your memories or writing abilities. Shyness should NOT stop with your memories or writing abilities. Shyness should NOT stop you from at least couple of short sex stories. use "FIRST LAY" or "SUBTEEN GIRL'S BIKINI BOTTOMS MISSING" as model stories. Make one up like did with the Finnish girl at the Russian nudist colony. Are your lives that fucking boring, that you cannot tell one single damned funny story about the little Missy's ya met in your whole shitten life??? [3] Most of the stories express the narrator's pleasure with the opportunity to be exposed to nude infant and/or preteen female bodies, extol their genitalia, and result in the narrator performing some form of oral sex on them. Several involve the narrator and preteens masturbating. Three stories describe the main adult character having vaginal and anal sexual intercourse with infants. In the stories the infants or young girls are sometimes portrayed as the aggressors, and always portrayed as acquiescing or enjoying the activity. [4] On July 29, 2005, Mr. Houston posted, "I am more of voyeur than actively sexual with girls." On August 4, 2005 with respect to his Tara-Kristen stories he posted: Most of my "little girl" stories are part true and part "phoney!" The sexual parts are "wishful fulfillment fantasies" of what wish had done with those two girls when had them under my roof. [5] Mr. Houston claims he did not know such stories were unlawful in Canada. The website he was accessing had section called "ask cop". On August 3, 2005 he posted: In Canada, the Criminal Code noew [sic] protects the rights of writers, and artists who write sex stories concerning preteen girls (or boys). The Robin Sharpe case in BC was decided in favor of the defendant for just thuis [sic] reason: artistic expression. On August 4, 2005 another user of the website pointed out the provisions of s. 163.1 of the Criminal Code, pointed out that the Supreme Court of Canada in the Sharpe [2001 SCC (CanLII), [2001] S.C.R. 45] case had upheld most of the law, and drew attention to the fact in December 2005 Parliament had, through amendments to the Criminal Code, limited the definition of artistic merit. Of the 11 stories submitted in evidence two were posted by Mr. Houston on August and one on August 8. He was not deterred by his new found knowledge, if indeed it was new found. [6] Mr. Houston maintains, and there is no evidence to the contrary, that he has never acted out his fantasies, and has never touched young girl in sexual manner. He has no criminal record. At the same time Mr. Houston maintained in one statement to police that pedophilia should be accepted in today's culture. He laments the fact that his type of stories are criminal in Canada which he claims not to be the case in some other countries. He advised the probation officer he feels he is being punished because he cannot express his point of view. He is not repentant, and completely lacks insight into the harm to children that results from child pornography. [7] Mr. Houston is 55 years old and has always been single. He has an advanced bachelor of arts degree which he achieved in 1975. He has never developed career but has worked at different jobs, including as private tutor of children. His last paid employment was in 2007 in retail sales. Since then he has been living with, and looking after, his ailing 83-year-old mother on an acreage site near North Battleford. [8] The probation officer wrote in the pre-sentence report: While Simon was employed as tutor in Saskatoon, he wrote an assessment on his eight (8) year old student describing her sexual aggressiveness and behavior. This was given to the parent by Simon and the "authorities" became involved. There was no legal involvement, but as result, Simon voluntarily entered Sex Offender Treatment Program in Saskatoon. Mr. Jerry Turta, Probation Officer with that program, verified his short participation in the program. He indicated Simon was very disruptive attempting to contaminate the entire group. He was asked to leave after the third (3) sessions. This writers experience with interviewing Simon, as well as facilitating Sex Offender Programs would suggest he is not an appropriate candidate for programming. Simon now states he knows his behavior was wrong, and it will not be repeated. However, he continues to watch adult pornography, seeking out the youngest looking female to fulfil his needs. Simon has no explanation for his behavior, except the attraction has always been there. Simon is prepared to participate in psycho forensic psychiatric/psychological evolution which may/may not be beneficial in attempting to understand/treat this behavior. Mr. Houston's sister, who is mental health nurse in Calgary, in letter to the court disputes the probation officer's finding that Mr. Houston is not amenable to sex offender programming. Mr. Houston's sister offers the opinion he was in the wrong group, which she states consisted of three aboriginal men considered "deniers" and who were reluctant to say anything at all. She concludes "clearly this was not an appropriate group for Simon, who feel would benefit from one- to-one sessions with therapist or psychiatrist." [9] Mr. Houston did not own computer at the time he engaged in this activity. He had enrolled at the University of Saskatchewan in 2005 in Latin course. He used the University of Saskatchewan computers to engage in the above described activity. Ironically, it was his attempt to assist authorities that brought him to the attention of the Saskatoon Police Service in this matter. He had reported to cyber-net that he thought he had seen picture of missing girl on the man-girl website he was accessing. His electronic trail in providing this information led to his arrest. When he was arrested on September 16, 2005 he provided sworn statement to police officers and admitted his activity. [10] Mr. Houston states he has not accessed the internet since he was arrested. He stated he does not own computer, he has never owned computer, and he does not intend to again access the internet. [11] The position of the Crown is that Mr. Houston's writings are hard core child pornography, which he relished distributing, and encouraged others to distribute. He submitted recent cases such as R. v. Warn, 2007 ONCJ 417 (CanLII); R. v. Treleaven, 2006 ABPC 99 (CanLII), 400 A.R. 201; R. v. Shelton, 2006 ABCA 190 (CanLII), 209 C.C.C. (3rd) 527; and R. v. Kwok, 2007 CanLII 2942 (ON SC), [2007] O.J. No. 457 (Sup. Ct. J.), which point out the menace posed by the distribution of child pornography through the internet, and which emphasize denunciation and deterrence of others to engage in such activity as the dominant principles of sentencing which he submits can only be met by term of incarceration. He points out that on November 1, 2005 Parliament amended the Criminal Code to provide one year minimum sentence for the distribution of child pornography, which became law approximately six weeks after Mr. Houston was charged in this matter. He notes that other judges have taken this amendment into account when sentencing on charges that arose shortly before the amendment came into force, and submits Parliament's wishes in this respect should be taken into account in this case as well. He submits an appropriate sentence would be two years less day imprisonment. [12] Defence counsel submitted number of reasons why conditional sentence should be imposed on Mr. Houston. Defence counsel's starting point is that written pornography of the type that Mr. Houston produced does not cause actual harm to children in its production, and for this reason should be viewed on lower scale than hard core images of children who have been sexually abused and harmed by production of the images. He submits that part of Mr. Houston's motivation in producing the stories was to provide discussion, and that he admitted in his postings that the sexual acts in his stories were fantasies and made it clear that he was not personally engaged in such activity. He submits that Mr. Houston's foray into distributing child pornography was situational, by reason of his access to computers at the University of Saskatchewan, which access he did not have, nor seek out previously. He submits Mr. Houston has learned his lesson and he should be taken at his word when he says he will not attempt access in the future. He also points out that Mr. Houston attempted to be helpful in locating missing child, which effort led to his arrest, and, states this shows good character and the fact he wants to be good citizen. He points to the factMr. Houston has abided by his release conditions over the past two and halfyears, has no previous criminal record, and is now serving the useful socialpurpose of looking after his ailing mother who lives on an isolated acreage andwho will also be punished if he is incarcerated. He refers to R. v. Cohen, 144 O.A.C. 340 (C.A.) and R. v. Kozun, 2007 MBCA 101 (C.A.) (CanLII) which upheld conditional sentences of 14 months and 18 months respectively for distribution of child pornography. Finally he notes that the pre-sentence report states "incarceration, in this instance would appear to be inappropriate". [13] In the pre-sentence report the probation officer noted the Saskatchewan Primary Risk Assessment to reoffend placed Mr. Houston in the medium risk category, which category recidivates at approximately 50 percent over three-year period, and that Mr. Houston was assessed at the 24th percentile, meaning 76 percent of the offenders were assessed as having more risk factors. The report identifies the major risk factors for Mr. Houston are "anti- social behavior, attitude, self management". It notes alcohol and drugs have never been factor in Mr. Houston's life. It states electronic monitoring would not be considered necessary and curfew would suffice. It concludes one-on-one counselling through mental health services would be reasonable term of any probation order. ANALYSIS AND DECISION [14] accept that the proliferation of child pornography has been greatly accelerated and become far more of societal problem in recent years with the arrival of the worldwide web. Pedophilia is not new condition but the material, which includes photographic images, videos, and written material, now available to persons who seek such material far exceeds anything that was historically available. The societal harm of such material is borne almost exclusively by infants and children, the most defenseless members of society, who are sexually and physically abused and bear all of the consequences of satisfying some adult's sexual desires or fantasies. As with any other product, if there are barriers put in place to restrict distribution of the product, this in turn should result in restriction of production and possession. The goal of the criminal law in this area is to discourage such distribution. For this reason denunciation and deterrence are the dominant principles of sentencing. [15] With respect to the defence submission that child pornography writings do not in their production actually harm children the way production of images do, and therefore should not be subject to the same denunciation, two comments can be made. In the absence of evidence to the contrary, it cannot be assumed that writings do not stimulate the demand for images which do directly harm children. Secondly, not all pedophiles are voyeurs only. Some will act on their desires. Anything that stimulates that desire places children at risk in the real world. [16] With respect to the circumstances of the offence, Mr. Houston, apartfrom extolling pedophilia, wrote hard core child pornography in several of hisstories, which on the scale of written child pornography places it in the upper halfof the scale. He directly encouraged others to produce similar stories, which is anaggravating factor in this offence. The fact that he disclosed his stories were largely fantasies is not mitigating factor that detracts from the effects such written pornography has, as set out above. Mr. Houston was a high profilecontributor to the website during the time he was active, and he remainsunrepentant, meaning he does not yet believe there is anything wrong with writingsuch stories, but simply agrees to stop doing so because the law requires it. [17] The range of sentence for distribution of child pornography prior to Parliament increasing the minimum sentence to one year imprisonment was three months-18 months, barring exceptional circumstances in the offence, or with respect to the offender, such as lengthy record. As noted in R. v. Shelton, supra, at para. 12, conditional sentences for distribution of child pornography were rare, particularly if the volume of material was significant. [18] Based on the circumstances of this offence, and the circumstancesof the offender, I conclude that a conditional sentence would not be a fit sentenceon the facts in this matter, although I agree Mr. Houston qualifies for the same tothe extent a fit sentence would not exceed two years, and I agree on the limitedinformation available that he would not endanger the community if one wereimposed. However, house arrest for an isolated individual such as Mr. Houstonwould not be much different from the life he presently leads, and would notrepresent sufficient denunciation. A conditional sentence also would not bestrong enough to deter others who might be inclined to engage in the activity ofdistributing child pornography. fit sentence in this matter requires period of incarceration. [19] I have taken into account the mitigating factors referred to bycounsel for the defence, such as the fact that Mr. Houston has no criminal record,and did plead guilty, albeit at the opening of trial, along with the other material Ihave referred to in the foregoing in arriving at what I consider to be theappropriate length of sentence. Mr. Houston, I sentence you to 15 monthsimprisonment, to be followed by a term of probation of three years, as well as theadditional orders I am about to make. [20] make the following orders provided for in the Criminal Code of Canada: (1) Pursuant to s. 490.012 of the Criminal Code, it is ordered you besubject to an order which will issue in Form 52 requiring you tocomply with the Sex Offender Information Registration Act, 2004,S.C. c. 10, for a period of 20 years, which is the mandatory timespecified in s. 490.012(1) for a person convicted of distributing childpornography. (2) Pursuant to s. 487.051 of the Criminal Code an order shall issue inForm 5.03 which authorizes the taking of samples from you forforensic DNA analysis. (3) consider it appropriate to make an order pursuant to s. 161(1) prohibiting you for period of 20 years from (a) attending public park or public swimming area where persons under the age of fourteen years are present or can reasonably be expected to be present, or daycare centre, schoolground, playground or community centre; (b) seeking, obtaining or continuing any employment, whether or not the employment is remunerated, or becoming or being volunteer in capacity, that involves being in position of trust or authority towards persons under the age of fourteen years; or (c) using computer system within the meaning of subsection 342.1(2) for the purpose of communicating with person under the age of fourteen years. [21] The terms of the three-year probation order are as follows: (1) Keep the peace and be of good behaviour. (2) Appear before the court when required to do so by the court. (3) Report to supervisor within two working days from the date of release from jail and thereafter continue to report as directed by the supervisor. (4) Remain in Saskatchewan unless written permission to go outside the province is provided by the court or the supervisor. (5) Notify the supervisor in advance of any change of name or address, and promptly notify the supervisor of any change of employment or occupation. (6) That you not possess or use any computer equipment or communication device capable of accessing the internet. (7) That you not reside where such computer equipment or communication device is available. (8) That you attend sex offender treatment programming as directed to do so by the supervisor. It is strongly recommended in the evidence that Mr. Houston would benefit from one-on-one individual counselling by professional person appropriately trained in sex offender treatment. Every effort should be made to facilitate such program. (9) That you not communicate with any female person under the age of 18 years unless that person is in the company of an adult who is present during the communication. [22] The foregoing is the sentence imposed on you, Mr. Houston.

Accused pleaded guilty at opening of trial to one count of distributing child pornography in the form of written works. The accused was active on a pedophile website and posted 11 stories describing sexual activity between men and infants and pre-teen girls. HELD: Accused received 15 months imprisonment followed by 3 years of probation with addition orders including providing DNA samples and being added to the Sex Offender Registry. The Court accepted that the internet has led to the accelerated proliferation of child pornography, making it an increasing social problem. The social harm of such material is borne almost exclusively by infants and children, the most defenceless members of society. For this reason, denunciation and deterrence are the dominant sentencing principles. The defence submitted that the writings do not actually harm children in their making and, therefore, should not be subject to the same denunciation as pornographic images. The Court rejected this argument because it cannot be assumed that the writings do not stimulate the demand for images and since not all pedophiles are voyeurs only some will act on their desires and anything that stimulates this desire places children at risk in the real world. Aggravating factors in this case were 1) the fact that the accused extolled pedophilia and wrote hard core child pornography and encouraged others to the same. 2) The accused was a high profile contributor to the web site and he remains unrepentant û he does not believe there is anything wrong with writing these stories and only stopped because the law requires it. A conditional sentence would not represent sufficient denunciation or deterrence. Mitigating factors in this case included a lack of criminal record, the guilty plea and the fact that the accused is looking after his elderly mother.

4_2008skqb174.txt

1989 S.H. 67788 IN THE SUPREME COURT OF NOVA SCOTIA TRIAL DIVISION BETWEEN: Jerome Hiltz and Kenneth J. McNab Defendant HEARD: Before the Honourable Chief Justice Constrance R. Glube in Halifax, Nova Scotia, December 18th, 1992 DATE: January 12th, 1993 COUNSEL: Kevin Coady, for the Plaintiff R. Malcolm MacLeod and David Blaikie, a/c, for the Defendant 1989 S.H. 67788 IN THE SUPREME COURT OF NOVA SCOTIA TRIAL DIVISION BETWEEN: Jerome Hiltz and Kenneth J. McNab C.J.T.D.: This is an action to determine the quantum of general damages as a result of a motor vehicle accident on June 28th, 1988 between a motor vehicle driven by the plaintiff, Jerome Hiltz and a motor vehicle owned and operated by the defendant, Kenneth McNab. Mr. Hiltz is claiming damages for personal injuries. Liability has been admitted by the defendant and special damages have been resolved between the parties. Mr. Hiltz, age 33, is married with three children, ages 7, and 2. He has Grade 10 education plus two years vocational school training and has been working for 15 years. For the past seven years he has worked for Autohaus Martins Inc., Volkswagen dealer located in Dartmouth, Nova Scotia. At the time of the accident, he worked as technician which involved body work including heavy frame work, panel replacement and painting. In March 1989, he became supervisor which changed his job in some respects although he still filled in as technician when someone was absent or on vacation. At discovery he said the job was lot different. At trial he said that is not the whole picture; he has paper work and involvement with customers, but he still does physical work. On the day of the accident shortly after 5:00 p.m, Mr. Hiltz was proceeding towards Halifax on the A. Murray McKay Bridge, on his way home from work. He was in line of cars and noted some difficulty further ahead. When the four cars immediately ahead of him stopped quickly, he was able to stop without any collision, however, as he was braking his car, he glanced in his rear view mirror and upon realizing that the car behind him could not stop in time, he braced himself by stretching out his left leg. The collision tapped the Hiltz motor vehicle into the car ahead resulting in minor damage to the front of his motor vehicle, namely, scrape on his bumper and crack under his signal light. The rear‑end collision resulted in his exhaust being knocked off, the splash pan rolled under, the bumper cracked and subsequently, leak was found in the gas tank. The damage totalled around $1,200.00. He claims the next time he drove the vehicle, he noted that the driver's seat was twisted, that is, the left side was bent back three or four inches. Mr. McNab testified he had started to slow down and believes his vehicle was travelling at 10 to 15 kilometres per hour when the collision occurred. Although his car suffered damage, he suffered no personal injuries and considered it simple fender bender. Mr. Hiltz banged his head in the accident which he said made his head ring, but at the time, it was his only discomfort. He and Mr. McNab both got out of their vehicles, inspected them and drove them off the bridge, stopping on the other side to exchange names. Mr. Hiltz proceeded to drive to see his brother who was welder, and they examined the car again. He then drove home without any problems. Upon arriving home, he had shower and went to sit on the couch. He became very shaky and upset and when he stood up, his left knee went numb. That evening, he went to see Dr. Michael Allen, his family doctor, who determined that nothing was broken and recommended that he take Tylenol, and use heat and cold if he continued to be bothered. Mr. Hiltz recalled remaining home from work for three or four days immediately following the accident, returning to work for three for four days, and then being off work for three or four weeks. He stated his whole body became numb, his neck was very sore, the muscles in his back were swollen, he had headaches, his left shoulder was sore, and his left hip was tingling. According to the records of his employer, Mr. Hiltz did not work the four days immediately following the accident, he returned to work on July 5th and was not off work again until July 22nd, when he was off for period of three weeks and day. Mr. Hiltz denies any prior history of pain in his hip, buttocks or groin. He described that on one occasion in the year before the accident, he got kink in his neck when he turned his head too fast; after wearing collar for day, the problem was corrected. He denied having any previous back pain, however, on June 15, 1988, Dr. Allen's reports show he was in his office complaining of muscular aches in his lower back as result of strenuous work on his lawn. Before the accident, in addition to the heavy work involved in his employment, Mr. Hiltz was generally involved in outdoor sports, including fishing, motor cycling, skidooing, hunting and playing organized baseball. Since the accident, those activities have been greatly restricted. He no longer drives motorcycle, skidoo or street bike because it causes pain in his hip and back. He cannot swing baseball bat because the motion causes pain and he has to carry lighter gun when he goes hunting. Long swims also bother him. He does more fishing now than other outdoor activities. He cannot run, do any fast activities, push car at work, or do any heavy lifting. At home, his activities are also curtailed. He finds roughhouse play with his children difficult, he cannot bathe them and he cannot do things around his home such as painting, building rock wall, making beds or taking out the garbage. He no longer helps his friends repair their homes and he no longer works on race cars. He has played golf once year and claims he "paid" for it with pain later. He has also water skied. year after the accident, he took long motor vehicle trip to Niagra Falls, but was in considerable pain throughout, and no longer takes long drives. Even one hour drive causes him problems. Following the accident, Mr. Hiltz was initially seen by Dr. Allen. He had three or four prescriptions for Tylenol 3, however now he just takes Extra Strength Tylenol. Dr. Allen arranged x‑rays and physiotherapy starting on July 22nd, 1988. He received 48 physiotherapy treatments in 1988 and 113 in 1989. These included exercises, cold and heat treatments, electrical impulses, acupuncture and manipulation. Because he was good employee, his employer allowed him to come in early and take an hour or an hour and half off for his treatments or other medical appointments. In 1990, he was placed on home exercise program. Except for the three week period in August 1988, he has not missed any work as result of his injuries. Because of continuing problems, Dr. Allen referred Mr. Hiltz to Dr. Robert K. Mahar, specialist in physical medicine and rehabilitation. The first visit was on December 19th, 1988. Up until July 1991, Mr. Hiltz had thirteen office visits with Dr. Mahar. Following one further visit in October, 1992, Dr. Mahar prepared final report for court. In December 1990 and September 1992, Mr. Hiltz was also seen on two occasions for assessment by Dr. Reginald Yabsley, an orthopaedic surgeon. These appointments were arranged by the defendant. When asked to compare his condition today to six months after the accident, Mr. Hiltz claims that sometimes it is no different; although there is improvement, he has not recovered. Strenuous work still causes pain. lie claims he has pain daily, mainly first thing in the morning and after work. When he gets up, he spends five minutes stretching and after work he lies on the floor and does stretching exercises. He is concerned that turning his neck the wrong way will cause his condition to flare up and holding his arms out for long periods, for example, to paint car, or sitting for any lengthy period causes pain in his back. Except for his left hip, the most pain is in his shoulders and neck; the muscles in his neck and upper back swell daily causing "pulling" feeling which makes him want to bend over. Initially, his left hip did not cause much problem, but then it got worse. He had sharp pains in his testicles for several months, very sore hip joint for six months, his left buttocks was very tender and he got relief by lying on his back with his feet up. Four to six months after the accident, the pain, which was initially intermittent, moved into his groin area. He believes that his personality has changed; he is moody and not the nice, outgoing guy he used to be. When he is in pain, he becomes more easily aggravated, and as result, he cannot handle his children as well. His home exercises involve lot of stretching, tightening and relaxing muscles. He performs the program diligently at home in the morning and in the evenings and sometimes during the day at work. To perform the exercises requires one or two hours day which takes prime time away from his wife and children. Tanya Hiltz, his wife, testified that before the accident, he was quite active without any physical restraints or complaints. He was involved in outdoor activities including motorcycling, baseball, downhill skiing and bowling. He was easy‑going and easy to get along with, always jumping in to help out. Since the accident, he has to try harder, he is moodier, and he turns over certain responsibilities to her, such as bathing the children, because he is not as mobile. When he comes home after work, she can tell by looking at him that he is not happy and that he is in pain. He does his exercises almost every day and she often assists him in doing them. Mrs. Hiltz started back to university in September. Although she had originally planned to wait until all the children were in school, both she and her husband believe that he cannot continue in his current work. She anticipates that there will be role change. Although she always wanted to go to college, she is now obligated to do so, acknowledging it will probably take five years or more before she is ready for employment. On January 16th, 1992, Mr. Hiltz had another motor vehicle accident. His car hit head on the side of car which cut across his path and stopped in front of him. Initially, he noticed his neck was sore and his shoulders were swollen. He claims that his back was sore for four days, but after seven to ten days, the muscle pain went back to where it was before the accident. As stated, Dr. Mahar first had contact with Mr. Hiltz at the request of his family doctor in December of 1988. There are number of letters from Dr. Mahar to Dr. Allan in 1989, 1990 and 1991. The three medical reports prepared for the court are dated October 31st, 1989, July 10th, 1991 and October 18th, 1992. Dr. Mahar described soft tissue injury which was related to the motor vehicle accident including: "Musculotendinous/ligamentous injury to anterior aspect of the left hip. Musculotendinous/ligamentous injury to left thoracic and lumbar paravertebral musculature. Musculotendinous/ligamentous injury to the left iliocostal thoraces or rhomboid muscle." He also described possible pars interarticularis defect at L5‑Sl with spina bifida occulta (developmental abnormalities) which was not related to the accident. Dr. Mahar believes the left hip injury was caused when Mr. Hiltz braced his leg with the knee extended, resulting in symptoms of tingling, discomfort, sharp pain in his knee and pain in his left hip and groin. This resulted in degree of shortening of the anterior aspect of the left hip and the groin area in the front. He found decreased range of motion in the left hip compared to the right which he attributed to soft tissue contracture or shortening because no other cause has been found. There is no bone or joint disruption. The injury to the left thoracic and lumbar relate to muscles on the left side of the mid‑back (thoracic) and low back (lumbar) which Dr. Mahar related to the motor vehicle accident. Also, on the left side further up, he described soft tissue injury extending up the side into the shoulder blades. In his opinion, there was common theme with fairly continuous pain from the low back extending up along the spine and into the left shoulder. The left low back and mid‑back and the scapula recovered at greater rate than the left hip region. He described that currently, the greatest discomfort suffered by Mr. Hiltz is in the anterior aspect of his hip. He also has pain in his buttocks and numbness, his left shoulder aches and pain goes up to his neck. He found that Mr. Hiltz was essentially unchanged from 1991, but his back and shoulder did improve between 1988 and 1990. Initially, Dr. Mahar considered the soft tissue injury suffered by Mr. Hiltz was between moderate and moderately severe, closer to moderate. In 1991, he reported significant improvement of the shoulder blade pain. Because of the continuing hip pain, he ordered CAT scan of the left hip. The 1991 report seems to indicate that things were settling down. It refers to reassessment in April 1990, when there were no significant complaints of pain in the neck or low back region, however, the left shoulder blade continued to cause trouble and there was residual left buttock pain and episodic pain in the front part of the left hip which mostly occurred when Mr. Hiltz was standing immobile. In November, 1990, he continued to have episodes of pain in the left buttock radiating down from the left hip into the left knee. The doctor felt Mr. Hiltz had developed some shortening of the soft tissues about the anterior aspect of the left hip, the left side of the low back and the thoracic musculature. The range of the left hip improved to normal with physiotherapy but it then showed mild restriction of external rotation following some months of only home exercises. As previously stated, he attributes the degree of decreased external rotation range of the left hip to the soft tissue injury. In 1991, his prognosis was that Mr. Hiltz would continue to have episodes of discomfort which might require periods of physiotherapy in the future; this could persist for several years, perhaps permanently, but Dr. Mahar had no way to corroborate or refute that impression. In his 1992 report, it was Dr. Mahar's opinion, that Mr. Hiltz has not fully recovered from any of his injuries; that he will continue to have discomfort in his hip although his neck could resolve itself. The neck, shoulder and back injuries do not indicate any accelerated risk of developing arthritis. Although the left hip causes the most concern, there is no evidence of degenerative deterioration in the hip, and Dr. Mahar agreed that Mr. Hiltz is not at any increased risk of tendency to arthritis of his hip, back and neck. The x‑rays, bone scan and two CAT scans did not demonstrate any significant bone/joint injury or inflammation which would corroborate predisposition to degenerative disease of the left hip. Relying on Mr. Hiltz's statements that the second accident was resolved in seven to ten days, he concluded that it caused no long term effects. His 1992 report concluded by saying that there was no significant risk of requiring surgery, that Mr. Hiltz is motivated, enjoys his work and would be able to continue to perform his duties on regular basis with discomfort from time to time. Except for continuing the home exercise program with physiotherapy as necessary for symptomatic relief, no further treatment or investigations were required. Although Dr. Mahar believes that Mr. Hiltz's work increases his pain and if he was doing lighter work, he would probably suffer less discomfort, the doctor has never advised him not to work. In the doctor's opinion, working is not causing any deterioration of his condition; he is not disabled from performing his job at the present time. Although Mr. Hiltz has pain at the end of each day, he gets through the day and puts up with the pain. Dr. Mahar found his activities do not result in any increased damage to Mr. Hiltz; he has no occupational limits and there is nothing he is doing which he should not be doing. In accepting that his lifestyle at home has been altered because he is unable or less able to do the things he wants to do, the doctor found these limitations consistent with the injuries he suffered. Dr. Mahar considers that Mr. Hiltz has been an excellent patient who does his home exercise program regularly and in this respect, considers him to be the most motivated person he has seen. Dr. Mahar acknowledged that what Mr. Hiltz told him about doing his exercises depends upon whether he believes Mr. Hiltz or not. On the other hand, in Dr. Mahar's opinion, the pain Mr. Hiltz says he is suffering, is consistent with his physical findings, based upon the history and the context in which Mr. Hiltz described the pain. The doctor accepts his subjective complaints and agrees it is not his job to be sceptical of his patients. In the opinion of Dr. Mahar, Mr. Hiltz does not have myofascial pain (chronic pain syndrome), but his pain is chronic; he has permanent disability relating to avocational interests such as driving his motorcycle, playing with his children and the like. He considers that the pain which Mr. Hiltz suffers is mild to moderate, closer to moderate, acknowledging that it is subjective. Dr. Yabsley examined Mr. Hiltz in December 1990 and September 1992. During the first visit, he found Mr. Hiltz had full movement of both hips without pain. He found no traumatic features, that is, nothing to demonstrate post traumatic effect. Although he is unable to explain the cause of the limited external rotation of the left hip, he believes it results from possible narrowing of the hip joint which was not the result of any trauma from this accident; he did express concern that this may result in arthritis in later years. He found it highly unlikely that Mr. Hiltz suffered any structural damage or any major soft tissue injury in the 1988 accident. He explained that this type of collision causes the head to go back and there was nothing to indicate that his hip and knee were injured at that time. He understood that the groin pain started approximately four months following the accident, and although he accepted Mr. Hiltz's statement that he has this pain, in the doctor's opinion, it could come from the back or the hip. He explained the shaking following the accident as psychological reaction. In his opinion, none of the tests taken by Mr. Hiltz over the years reveal any demonstrable physical consequences of the accident. He believed Mr. Hiltz was good patient who went back to work even though he had symptoms, but he also believed that he was capable of doing the work. He found it significant that Mr. Hiltz only has to use Extra Strength Tylenol for the continuing hip pain. In his 1990 report Dr. Yabsley referred to Mr. Hiltz taking up water skiing again, and although it was not as often nor as comfortable as it had been previously, the doctor expressed the view that water skiing is vigorous sport which normally requires good conditioning. Although the second accident in 1992 was head on collision, Dr. Yabsley found some significance in the fact that Mr. Hiltz did not go to see Dr. Mahar, that he went to work the next day, did his exercises and got over the effects of the accident quickly. As stated, Dr. Yabsley was unable to find or identify the source of the pain complained of by Mr. Hiltz. He found Mr. Hiltz was forthright and highly motivated and he accepted that he has pain, but he does not agree that it is the result of any soft tissue injury from the 1988 accident. He did not discount Dr. Mahar's conclusion, stating it is just nuance of interpretation which is at variance. Although soft tissue injury is not unusual following motor vehicle accident, generally, it stabilizes within six months to several years. In this case, Mr. Hiltz continues to complain about pain four and half years after the accident and there is nothing to explain the cause of the pain. In Dr. Yabsley's opinion, further conventional medical treatment would not bring him any relief because there is nothing demonstrable to relieve. Dr. Yabsley describes Mr. Hiltz as healthy young male with various tender points which are not ascribable to any cause, who is not at greater risk of premature arthritis as result of the 1988 accident. He found that the one objective sign (the hip rotation), is not the result of this accident. Although Dr. Mahar described the pain suffered by Mr. Hiltz as mild to moderate, in the opinion of Dr. Yabsley, moderate pain would interfere in major way with Mr. Hiltz's work or personal lifestyle, thus, he considers the pain is no more than mild. In Dr. Yabsley's opinion, any soft tissue injury has healed. The continuing pain is "pain state" without any manifestation of residual soft tissue injury. This kind of pain responds to time and he is optimistic that Mr. Hiltz will soon be comfortable. He believes Mr. Hiltz is able to continue to participate in all the activities he wants to do. The difficulties which he is suffering at this time are subjective; he is focussing on himself, he has anxiety related to the accident and after four years, the pain is part of the overall syndrome of anxiousness and concern. In the doctor's opinion, since Mr. Hiltz can do things such as water skiing, although he has pain, his body is able to do these things without suffering any injury. Although Dr. Mahar has seen Mr. Hiltz over an extended period of time, and on many occasions, he too was unable to find any physical reason for the pain which Mr. Hiltz was suffering. accept that there is pain, but further accept that there is no physical basis as result of the accident which is causing the pain. During cross‑examination, it was pointed out to Dr. Mahar that only nine months after the accident, in March of 1989, Mr. Hiltz indicated that he was taking very little pain medication, and only had one bad day week, that on one occasion in the summer of 1989 he played golf and that his hip was more normal. It appears he was doing quite bit better at that time. Dr. Mahar's later reports seem to indicate Mr. Hiltz has more rather than less pain. Dr. Mahar's comment was that he accepts what his patient says to him about pain and that the pain was consistent with his injuries. During cross‑examination, Mr. Hiltz acknowledged that over the years he has bought and sold cars and sold his motorcycles, without declaring any of this income on his income tax. Also, prior to joining his present employer, while he was on unemployment insurance benefits he worked out of his own garage for six months doing body work and painting, again without reporting the income. Although acknowledge the attempt to challenge Mr. Hiltz's credibility, this does not really assist me in any way because everyone accepts, as do I, that Mr. Hiltz still has pain. After reading through all of the material which has been presented in evidence and listening to Mr. Hiltz and the two doctors, find that this was mild to possibly moderate injury in the first instance, which allowed Mr. Hiltz to continue with physically demanding work from the time he returned to work in August through to March when he became supervisor at which time his work became somewhat easier. Except for physiotherapy and medical appointments, he did not miss any time at work. Some of his activities have indicated that he has tried to return to what he was doing previously, such as game of golf once year and water skiing. He continues to hunt, although he hunts with lighter rifle. I accept that Mr. Hiltz still feels pain, but I find that this was a mild injury which has resolved itself except for the pain. Currently the pain has become learned pain; there is anxiety with it which should decrease and hopefully disappear now that the court action has reached conclusion. His pain does not restrict him from employment, although he considers that it restricts him from his recreational activities, resulting in the loss of enjoyment of some of those activities. accept that the pain which he has occurs on fairly regular basis and that his exercises seem to be of assistance to him. accept both doctors findings that no further treatment will assist Mr. Hiltz, and that the accident has not had any long term physical effects. The fact that Mr. Hiltz is so motivated is good sign. Now that this case is drawing to conclusion, am sure that within reasonable time his strong motivation will lead him to do what his body can stand without suffering any pain; otherwise, he is going to have to live with the pain and accommodate to it. conclude that the current pain is not the result of trauma suffered in the 1988 accident. In reaching these conclusions must now turn to the award of damages. Even if agreed with the plaintiffs position that his pain is the result of the ongoing effects of injuries suffered in the accident, in my opinion, it would be inappropriate to award damages on the basis of two separate and independent injuries. In reaching any conclusion on damages it is always of some assistance to refer to cases to learn what amounts are being awarded for general damages, acknowledging that each case is factually different from the other. However, cases are only guidelines for the court. Although counsel on both sides referred me to number of cases, which read, it is unnecessary to list them. In my opinion, Mr. Hiltz is left with myofascial or chronic pain, mainly relating to his left hip. He still suffers pain which restricts some of his activities causing loss of enjoyment. He does not have pain all day every day, but he exercises care in what he is doing because he fears he will cause himself more pain. Also his personality has changed and his recreational life has been affected. Taking all these factors into consideration, I assess general damages in the amount of $25,000.00. Counsel made submissions on pre judgment interest. There was no evidence which leads to the conclusion that the plaintiff was responsible for undue delay in bringing this case to trial. There will be no reduction in the number of years for the award of interest. In choosing the appropriate interest rate, in my opinion, the award of $25,000.00 reflects an award for chronic pain syndrome as suffered by the plaintiff as of this date and not four and a half years ago when the accident occurred. (See Kirk Singh, S.T. No. 03829, unreported decision November 25, 1992, p. 24.) To award full interest would amount to double recovery which should be avoided. The interest rate must be adjusted appropriately. (See Bush Air Canada, (1992) 109 N.S.R. 2d. 91. Interest shall be at 1/2% from June 28, 1988 to the date of judgment. If costs have not been resolved, counsel may file written submissions. Constance R. Glube Halifax, Nova Scotia 1989 S.H. 67788 IN THE SUPREME COURT OF NOVA SCOTIA TRIAL DIVISION BETWEEN: Jerome Hiltz and Kenneth J. McNab Defendant DECISION OF GLUBE C.J.T.D.

The plaintiff claimed damages for injuries suffered as a result of his car being hit from behind. He had continued pain in the neck, shoulder, back and hip four and one half years after the accident. Throughout this period, the plaintiff missed only three days and then three weeks of work. The medical evidence conflicted as to whether the injuries were the cause of the continued pain. Awarding $25,000 valued at date of judgment with an adjusted interest rate. The court found the injury was mild and not the cause of the continued pain. The plaintiff was found to have chronic pain syndrome.

8_1993canlii4689.txt

PROVINCIAL COURT OF NOVA SCOTIA Citation: R. v. Eagles, 2010 NSPC 18 Date: 20100212 Docket: 1715571, 1715572 and 1715573 Registry: Dartmouth Between: Her Majesty the Queen v. Eric Eagles Revised decision: The oral decision date should read February 12, 2010. This replaces the previously distributed decision. Judge: The Honourable Judge Theodore K. Tax Heard: January 22, 2010, February 5, 2010 and February 12, 2010, in Dartmouth, Nova Scotia Oral decision: February 12, 2010 Charges: Section 17(1) and 74(1)(a) of the Occupational Health and Safety Act Counsel: Peter Craig, for the Crown Donald Murray, Q.C., for the Defence By the Court: Introduction: [1] The decision for the Court to render today is to determine fit and proper sentence for Mr. Eric Eagles. He has been found guilty of contravening two provisions of the Fall Protection and Scaffolding Regulations of the Occupational Health and Safety Act of Nova Scotia. Firstly, that he failed to ensure that a guardrail was installed at the perimeter or open side where a person was exposed to a hazard of falling contrary to Section 7(1) and 9(1)(b) of the Fall Protection and Scaffolding Regulations and Section 17(1) of the Act. Secondly, that he failed to ensure that a guardrail was constructed or installed as required by Section 9(2)(d) of the Fall Protection and Scaffolding Regulations, Section 17(1) of the Occupational Health and Safety Act and in both cases, he thereby committed an offence contrary to Section 74(1)(a) of the Occupational Health and Safety Act. [2] The facts of the case and all of the legal issues that had to be analysed and determined were set out in my written decision which was released on November 6th, 2009 and reported at 2009 NSPC 49 (CanLII). [3] Briefly stated, shortly after 8:00 a.m. on September 25th, 2006 Mr. Keith Myles began laying bricks under steel I-beam supporting the roof overhang above concrete sidewalk located at the Downsview Mall in Sackville, Nova Scotia. At that time, he was working on work platform supported by scaffolding that was approximately 13 feet above the concrete sidewalk. As he stepped out and reached to secure his block or level line, he placed one foot on the open edge of the false ceiling suspended by wires under the roof overhang. When he placed his weight on that false ceiling, it gave way and Mr. Myles fell down onto the concrete sidewalk below. He suffered serious injuries, and a short time later, he died as a result of those injuries. [4] The scaffolding had been placed up against steel I-beam, supporting the roof overhang, however, no top guardrail or mid-guardrail had been constructed or installed and attached to the scaffolding as required by Sections 7(1), 9(1)(b) and 9(2)(d) of the Fall Protection and Scaffolding Regulations. [5] These are strict liability offences and found that the prima facie case relating to two counts in the Information alleging contraventions of the Fall Protection and Scaffolding Regulations were established beyond reasonable doubt by the Crown, and that the Defence did not establish due diligence defence on balance of probabilities. [6] In finding that Mr. Eagles did not establish due diligence defence on balance of probabilities, concluded that he did not take every reasonable precaution to avoid the contraventions of the Nova Scotia Occupational Health and Safety Act as particularized in counts #1 and #2 of the Information. [7] In the written decision, found that Mr. Eagles was negligent in his inspection of the work area before work at heights commenced and for failing to properly supervise the labourer, who he had instructed to install the mid-rail. In the final analysis, Mr. Eagles had the greatest degree of control and authority and he had the ability to create and maintain safe and healthy workplace on the morning of September 25th, 2006. concluded that he failed to ensure that guardrails or other fall protection measures were installed before Mr. Myles started to lay bricks under the steel I‑beam on the open side or end of that work area. The Crown's Position on Sentencing: [8] The Crown’s position is that, by operation of the Summary Proceedings Act, all of the principles and purposes of sentencing outlined in Sections 718, 718.1 and 718.2 of the Criminal Code apply and are superimposed on the contextual principles of sentencing established in regulatory prosecutions. [9] The Crown refers to the R. v. Cotton Felts Ltd. (1982) 1982 CanLII 3695 (ON CA), C.C.C. (3rd) 287 (Ont. C.A.) in support of its position that deterrence should be the court’s primary focus. In that case, the Ontario Court of Appeal established the principle that the amount of the fine will be determined by the need to enforce regulatory compliance through deterrence. [10] However, most cases cited by the Crown involved corporate defendants, often large companies employing many employees, and those cases incorporated the Cotton Felts factors such as the size of the company and the scope of its economic activity in reaching their decisions. The Crown acknowledges that many of the factors mentioned in Cotton Felts do not apply to an individual, hourly paid defendant charged with regulatory offences, but the Crown submits that deterrence remains the overriding factor, with appropriate modifications to fit the circumstances. [11] The Crown points out that in Section 74 of the Occupational Health and Safety Act there is authority for the Court to impose fines, and under Section 75 there is authority to make orders, which have been referred to as “creative sentencing options”. [12] After referring to fatality cases, both in Nova Scotia and in other jurisdictions, the Crown recommends that the Court order fine and creative sentencing option in the total amount of $40,000 to $50,000, which amount is to be determined and allocated according to the defendant’s circumstances. In response to the Court’s inquiries, the Crown recommended some creative sentencing options for the Court to consider. The Defence Position: [13] The Defence articulates different analytical approach for the Court to adopt in coming to its decision as to fit and proper sentence. [14] The Defence submits that the Court should first conduct an analysis of the defaults committed by Mr. Eagles and then determine the moral blameworthiness of Mr. Eagles in light of that assessment, the context of the case and the purposes and principles of sentencing in Sections 718, 718.1 and 718.2 of the Criminal Code. [15] Defence counsel submits that the moral blameworthiness of Mr. Eagles, as determined by the Court in the November 6th, 2009 decision, was based upon Mr. Eagles failure to adequately supervise, his misplaced trust in an experienced worker, errors of judgment in interpreting the provisions of the Act and the Fall Protection and Scaffolding Regulations and his failure to adequately inspect the scaffolding and fall protection measures before work commenced in that “work area”, all of which amounted to negligence. [16] While the Defence submits that Mr. Eagles’ actions or his failure to take all reasonable precautions contributed to the possibility that Mr. Myles would suffer injury and that his actions and decisions contributed to Mr. Myles being exposed to the hazard of fall, those actions did not cause Mr. Myles to fall off the work platform to the ground. He points to Judge Anne Derrick’s decision in R. v. Nova Scotia Power Inc. 2008 Carswell N.S. 667 at paras 40 and 43 to support his submissions for this important distinction. [17] Defence counsel also submits that the Court should have regard to the role that any other contributing negligence may have played in the accident, which resulted in Mr. Myles’ death. He maintains that Mr. Eagles’ defaults were not conscious or planned and when those factors are taken into account with general sentencing principles, but especially where an individual foreman or supervisor was found guilty, the appropriate range of fine and creative sentencing options is significantly lower than the range recommended by the Crown. [18] Defence Counsel maintains that global fine in the amount of $1,000 to $2,000 would be appropriate in all of the circumstances of this case. In addition, after being provided some time by the Court to consider the issue of creative sentencing options, the Defence proposed creative sentencing option as part of their sentencing submissions. Applicable Sentencing Principles: [19] By virtue of the provisions of the Summary Proceedings Act, RSNS 1989, c. 450 s. 7(1) as amended, the sentencing considerations outlined in the Criminal Code of Canada, R.S.C. 1985, Chap. C-46, Sections 718, 718.1 and 718.2 are also applicable to sentencing in cases such as the one before this Court. [20] In addition, according to Mr. Norman Keith’s Canadian Health and Safety Law: Comprehensive Guide to the Statutes, Policies and Case Law, looseleaf (Aurora: Canadian Law Book, 2009), at pages 10-63 and 10-76.1 to 10-76.4, there are usually three primary sentencing principles for the Court to consider in health and safety prosecutions. They are: (1) deterrence, both specific and general; (2) retribution; and (3) rehabilitation/reform. [21] As starting point, specific deterrence of the accused person or corporate defendant and general deterrence of others in society should provide message that similar contraventions of public welfare legislation will have serious consequences. [22] General deterrence also has an educational element and that element may also be achieved through the publicity and information provided by the decision which will make other people aware of what occurred. Through this information and education, other individuals or companies are encouraged to re-double their efforts to comply with health and safety legislation, check their systems and review legislation in ongoing educational sessions to ensure that safe and healthy workplace is created and maintained. [23] Individual or specific deterrence is aimed at the particular defendant before the Court and is premised on the idea that harsher sentence will discourage further violations. [24] In assessing the issue of specific deterrence, in my view, the Court is required to consider factors which could be regarded as mitigating or aggravating circumstances, and while the following is not an exhaustive list, factors which ought to be considered are: (a) whether the accused had any prior violations; (b) the amount of authority that the accused had over the tasks in question; (c) was the accused’s failure to comply with the legislation due to deliberate recklessness or indifference, or some monetary gain, or more the result of momentary lapse or inattention; (d) did the accused make some efforts, even if determined to be inadequate by the Court, to comply with the legislative requirements; (e) was the accused generally vigilant in relation to safety concerns or were workers previously exposed to unnecessary risk of injury; (f) was there fatality the authorities reviewed by me seemed to indicate general trend in imposing an elevated monetary sanction where fatality was involved; (g) were there any findings or possibilities of contributory negligence to be considered. [25] This last factor, that is, the possibility of contributory negligence brings into consideration the accused’s degree of moral blameworthiness and if so, the appropriate disposition ought to take into account that the accused should not be required to shoulder the burden of all of the contributory negligence that existed in this case on the work platform at the Downsview Mall on September 25th, 2006. [26] Concerning the issue of whether contributory negligence should be factor to be considered in determining fit and proper sentence, Defence counsel referred the Court to the principles of the Internal Responsibility System set out in Section of the Occupational Health and Safety Act of Nova Scotia. In that section, one finds the foundation of the Act and Subsection 2(a) states, “that everyone in the workplace shares the responsibility for the health and safety of persons in the workplace”. [27] Of course, Subsection 2(b) of the Act also states that the primary responsibility for creating and maintaining safe and healthy workplace rests with the person who has the greatest authority and ability to create and maintain that safe and healthy workplace. On September 25th, 2006, Mr. Eagles was that person at the Darim Masonry Limited worksite at the Downsview Mall. [28] In addition, Defence counsel has cited the case of R. v. Giant Yellowknife Mines Limited, 1991 Carswell NWT 33 (NWT Territorial Court) as authority for the proposition that contributory negligence is an appropriate factor to consider in the Court’s sentencing decision. have reviewed the decision of Judge Bourassa in Giant Yellowknife Mines and agree with his reasoning that contributory negligence is factor that is open to the Court to consider in the assessment in the penalty as it is relevant to the issue of the moral blameworthiness or criminality of the conduct of an individual accused person. also note that Bourassa J. held that contributory negligence may also be “carefully considered” in the case of corporate defendant so as not to penalize corporation for acts or omissions of employees who deliberately ignored or frustrated the corporation’s safety efforts and, in particular, refer to paragraphs 19 to 22 of the Giant Yellowknife Mines Limited, supra. [29] In my opinion, it is appropriate for the sentencing judge to look at issues of contributory negligence or any intervening acts that played significant role in the contravention of the Act or any injuries that occurred. [30] The other two primary sentencing principles generally applicable in the sentencing of defendants for violations of health and safety legislation are retribution and rehabilitation/reform. 2. Retribution [31] Briefly stated, this principle involves the moral condemnation of the offence by society. This principle requires the Court to focus on the particular violations by the defendant as prohibited by law and then relates the punishment of the defendant to the offence committed. In this way, retribution in criminal context represents an objective, reasoned and measured determination of an appropriate punishment which properly reflects the moral culpability of the defendant: see R. v. (L.A.) 1996 CanLII 230 (SCC), [1996] SCR 500 at pp. 557-558. [32] This principle of sentencing essentially incorporates the principles mentioned in Sections 718.1 and 718.2 of the Criminal Code which require that the Court to consider proportionality, parity and restraint in determining an appropriate sentence. A. Proportionality [33] This principle requires sentence to be proportionate to the gravity of the offence and the defendant’s degree of responsibility, but it also requires the sentence to be proportional to the defendant’s moral blameworthiness by assessing all aggravating and mitigating factors in light of all circumstances relating to the offence. In assessing this principle, the Court must not be unduly influenced by the enormity of the tragic consequences in its considerations as to the appropriate sentence. [34] The principle of parity has been described by Judge Anne Derrick, in the Nova Scotia Power Inc., supra at paragraph 51, as sentence that “should be similar sentences imposed for similar offenders for similar offences committed in similar circumstances” which follows very closely, if not identically, the wording of Section 718.2(b) of the Criminal Code. [35] But as Judge Derrick pointed out in paragraph 52 of the Nova Scotia Power Inc. case, it is not easy to make comparisons to other cases in which there was fatality, especially where there is no specific finding by the Court of “causal” connection between the infraction and the worker’s death. [36] This principle can be simply stated as the penalty imposed should be no greater than is required to meet the objectives of sentencing. This point was accepted and applied by Judge Derrick in Nova Scotia Power Inc., supra, at paragraph 56 and by Judge Alan Tufts, in R. v. Meridian Construction Inc. and Donald London [2005] NSPC 40 at paragraph 22. The application of this principle requires “measured response” in determining fit and proper sentence. 3. Rehabilitation and Reform [37] Finally, the last of the three major sentencing principles which is applicable to occupational health and safety prosecutions is that of rehabilitation and reform. This principle reflects the mutual interest of society and the defendant to foster positive changes so that the defendant and others are more safety conscious in the future. This principle recognizes that the purpose of health and safety legislation is to protect and improve the occupational health and safety in the workplaces of Nova Scotia. This principle has often resulted in courts employing several creative sentencing orders under Section 75 of the Occupational Health and Safety Act to promote health and safety in the workplace. The Circumstances of the Defendant: [38] Mr. Eric Eagles comes before the Court as 47 year old man who is married and is the father of two children. [39] He completed the masonry program at the Nova Scotia Community College and has worked in the masonry business since 1987. Since 1994, he has been foreman with Darim Masonry and his employer described him as “an ethical and excellent worker who is responsible and reliable and will have long-term employment with the company”. [40] Mr. Eagles is an hourly paid employee of Darim Masonry whose moderate level of gross income for the year involves working significant number of hours of paid overtime. [41] Mr. Eagles has genuinely expressed his regret and remorse for Mr. Keith Myles’ tragic accident and accepts responsibility as the foreman for his failure to adequately supervise and inspect the guardrail installation before work started in that area. [42] This court process has been stressful for Mr. Eagles and members of his family. Mr. Eagles has had no prior convictions for any occupational health and safety infractions. Input from the Victims: [43] Statements were read in Court by Mrs. Katherine Myles, wife of Keith (Mickey) Myles; by his daughter, Annette Travis, and by his former daughter-in-law, Jodie Myles. They spoke of the attributes of Keith Myles as husband, father, grandfather and very proud and professional mason. They all spoke about their personal loss and the impact on their lives of Mr. Keith Myles’ death, but they also asked the Court to consider any measures that could make Nova Scotia workplaces safer and healthier. [44] Undoubtedly, the members of the Myles’ family have struggled to try and make sense of Mr. Keith Myles’ death. This is tragic case. Mr. Myles went to work on September 25th, 2006 and never came home again. No decision on sentencing today can bring total comfort to the Myles family, but they asked the Court to consider alternatives which might bring some measure of closure for them and, at the same time, promote the maintenance of safer and healthier workplaces in Nova Scotia. Determining an Appropriate Sentence: [45] The Nova Scotia Occupational Health and Safety Act provides the Court with great deal of latitude in crafting sentence under Sections 74 and 75 of the Act. Section 74 provides the Court with authority to impose fines of up to $250,000. The Court may also utilize what have been referred to as “creative sentencing options” under Section 75 of the Occupational Health and Safety Act. There is no requirement to impose fine under Section 74, and the Court has the latitude to craft an appropriate sentence using its authority under either Section 74 or Section 75 or both of these sections. [46] In this case, after an examination of all of the relevant factors under the three primary sentencing principles in occupational heath and safety prosecutions, am convinced that considerable degree of restraint is required to achieve measured response for an appropriate sentence. [47] At the outset of my earlier decision, found that Mr. Eagles understood the requirements of the provisions of the Act and the Fall Protection and Scaffolding Regulations and made efforts to comply with them. This was not a case of reckless disregard or deliberate indifference to the legislative safety measures. With respect to the mid-rail, I found that he instructed a labourer to install a mid‑rail, but for some reason that worker did not do so. In this regard, found that Mr. Eagles failed in his duty to properly supervise the labourer and to inspect the guardrails before work was commenced in that area. I have no doubt that the actions of that worker contributed to the hazard of Mr. Myles working at heights without any fall protection measures in place. [48] With respect to the top-rail, Mr. Eagles turned his mind to that issue, but I held that he made an error in judgment in believing that the steel I-beam supporting the roof overhang above the sidewalk could substitute as a top-rail in the circumstances of this case. Again, this is not an issue of reckless disregard, but more so misinterpretation of the statutory requirements. Defence counsel points out that the “competent person” appointed by the Department of Labour to later inspect the scaffolding when work re-commenced did not require the installation of top-rail, also believing that the steel I-beam would be sufficient for that purpose. [49] Both the failure of the worker to do as he was directed to do and the error in judgment or misinterpretation of the Fall Protection and Scaffolding Regulations go to the issue of, and the appropriate sanction for, the moral blameworthiness of Mr. Eagles for the contravention of the legislation. However, it must also be remembered that Mr. Eagles had the primary responsibility for creating and maintaining safe workplace at Darim Masonry’s workplace at the Downsview Mall on September 25, 2006. [50] Furthermore, there is no doubt that Mr. Eagles’ failure to inspect and to properly supervise the labourer as well as his errors in judgment regarding the interpretation of the legislation relating to the top-rail led to situation where danger was created and Mr. Myles was working at heights without any fall protection measures in place. However, did not find in my earlier decision that this dangerous situation caused Mr. Myles to fall off the work platform. We do not know why Mr. Myles stepped off the work platform and placed one foot on the open end of false ceiling that was only held up by wires. He was not asked, nor was he ordered, to do his work in that manner. The false ceiling was not concealed hazard. The false ceiling was open to view and it is well known in the construction industry that suspended false ceiling, like the one at the Downsview Mall, is not designed to bear any significant weight. [51] In assessing fit and proper sentence for Mr. Eagles, conclude that am required to take into account Mr. Myles’ own actions, which contributed to his fall off the platform, as they also impact Mr. Eagles’ degree of moral blameworthiness, and in this case, to the specific results or consequences, which arose from the contraventions of the legislation. [52] Several cases were provided to me to assist in assessing the factors of proportionality and parity. As previously mentioned, those other cases turn on their particular facts and courts must carefully examine all of the relevant sentencing principles in the context of the facts and circumstances of the instant case. Other cases do offer some guidance, but they must be carefully examined to determine whether principles of parity and other key sentencing principles were considered and applied by those courts. [53] Recent Nova Scotia fatality cases where foremen were found guilty of breaches of the Act and Regulations were Daniel Magee (an unreported decision of MacDonald, J. in the Nova Scotia Provincial Court of October 28, 2003) and Donald London [2005] NSPC 40, which actually involved the same incident as the one in which Meridian Construction Inc. and Charlie MacIntryre Contracting were also convicted and fined. There were several breaches of the legislation by the corporations and the individual, hourly paid supervisors and foremen. The trial Judges in those cases ordered fines in the amount of $110,050 against Meridian Construction Inc. and its foreman, Donald London, in the amount of $11,500. As for Charlie MacIntyre Contracting, fine of $28,000 was levied against the company while its foreman, Daniel Magee was fined in the amount of $8,050. [54] The fatality cases involving Meridian Construction Inc. and Charlie MacIntyre Contracting are consistent with other cases in this Province and across Canada, which generally impose significantly higher sanctions on corporations or businesses than those imposed on an individual defendant, such as an hourly paid foremen or supervisor. Factually, those cases are also quite different from this case, as the worker fell to his death by accidentally stepping onto hidden danger that is one that could not be seen nor one of which the worker could have been aware. Moreover, the Court found that the hidden danger was present for 13 days. In that case, Judge Tufts said “it was an accident waiting to happen”. The failure to properly secure and inspect the skylight opening in the roof, where the worker fell to his death, went to increase the gravity of the offence and the moral blameworthiness of the defendants. As Judge Tufts said in Meridian Construction Inc. and Donald London, supra, at para 17: As well, the failure to inspect and better repair the skylight openings after Jordan Macumber brought the same to the defendant’s attention continued for eight days, notwithstanding that there were not workers presently on the roof this was, in my opinion, serious. This was more than mere “slip” or an error in judgment. In my opinion it, together with the other incidences of inaction, represented serious failure in the defendant’s implementation of its’ safety regime. [55] Looking at those cases compared to this case and bearing in mind principles of proportionality and parity, Mr. Eagles did not create or negligently leave in place a hidden hazard, which caused Mr. Myles to fall off the work platform. The lack of top-rail on the work platform was result of Mr. Eagles actually turning his mind to the question, but making an error in judgment in the circumstances of this case. In my view, the facts of this case and my conclusions in the trial are significantly different from those of Judge Tufts in the Meridian Construction Inc. and Donald London case. [56] The Crown also provided the case of Delgant 2000 Limited and Pasquale Defranco (2005), W.C.B. (2nd) 61, decision of the Ontario Court of Justice where the corporate accused was fined $300,000 and the individual accused was fined $30,000. In that case, two workers doing concrete formwork fell 16 floors to their death when the form and the work platform collapsed. [57] In the Delgant case, Mr. Defranco was the supervisor on the job who had also designed and actually constructed the formwork. In the Court’s decision at page 4, it was held that Mr. Defranco’s design and construction of the formwork was “grossly insufficient” and that he had also failed to get appropriate approvals and inspections all of which was regarded as “serious failures constituting high level of negligence”. [58] In my view, the case of Delgant, 2000 Ltd. and Defranco, supra is in no way comparator to this case. In that case, the Crown had been seeking jail sentence for Mr. Defranco and, based on the facts of that case, it is clear that the sentencing judge determined that Mr. Defranco bore very high degree of moral blameworthiness. Moreover, in the Delgant 2000 Ltd. case there was no contributory negligence whatsoever on the part of the workers who died in the fall. find that the facts and circumstances of the instant case are clearly distinguishable from those present in the Delgant 2000 Ltd. case. [59] In coming to my decision today, have also reviewed other cases provided by counsel which documented the trend of significantly higher sanctions for corporate accused compared to an individual accused. The cases which reviewed were: R. v. FKP Tool Manufacturing Ltd., 2003 Carswell Ont. 6815 (Ont. C.J.) where the corporation was fined $200,000 plus victim fine surcharge while the supervisor was fined $10,000 plus victim fine surcharge; R. v. Bradsil 1967 Limited, (1994) Carswell Ont. 4450 (Ont. C.J. Prov. Div.) where the two companies involved were fined $15,000 and $12,500 and their supervisors, $1,000.00 and $800. In the Bradsil 1967 Limited case, no one was injured and the Court found that the “supervisory lapses were of brief duration”. In R. v. Ricklis Construction Ltd., 2003 Carswell Ont. 1654 (Ont. C.J.), the Court convicted the company and found that no guardrails or fall protection measures were in place, but no one was injured. The corporation was fined $15,000 as deterrence was the primary concern and the Court concluded that the fine adequately reflected the corporation’s moral blameworthiness. [60] Having carefully reviewed all of the sentencing purposes and principles, which form the basis for my decision, and also factors such as parity, proportionality and restraint, I find that the degree of Mr. Eagles’ moral blameworthiness would be at the lower end of a continuum. For that reason, also find that Mr. Eagles should not be required to shoulder the burden exclusively for all of the other acts which contributed to Mr. Myles’ fall from the work platform, and ultimately to his death on the morning of September 25th, 2006. [61] have determined that fit and proper sentence in all of the circumstances of this case should include some elements of specific deterrence with the primary focus being on general deterrence and creative sentence options. In reaching my decision, also believe that the focus on general deterrence and rehabilitation or reform, through creative sentencing, will have an educative effect to shift the attitude of people in the workplace and in the public generally. Creating and maintaining safe and healthy workplace is requirement of law; it is not an option. Conclusion: [62] In my view, crafting an appropriate sentence in this case should send message that vigilance is required at all times and that mistaken assumptions about workplace safety may have dangerous, and sometimes, tragic consequences. [63] Mr. Eagles knew the requirements of the legislation and turned his mind to what was required to be done, but his misplaced trust in labourer to do as he was directed to do led to his failure to adequately supervise and ultimately to his failure to inspect fall protection measures before work commenced at that end of the work platform. The error in judgment regarding the top-rail and whether the I-beam would be satisfactory substitute is one for which can only assess low level of moral blameworthiness since the Department of Environment and Labour’s own "competent person" maintained the same position as Mr. Eagles. have already discussed the role that contributory negligence played in all of the circumstances of this case and taking into account all of the purpose and principles of sentencing, make the following orders under Section 75 of the Occupational Health and Safety Act: 1. Mr. Eagles shall donate the amount of $2,000 to the Public Education Trust Fund established by the Nova Scotia Minister of Environment and Labour no later than the 13th of August 2010. 2. In addition, to further supplement the educational components of this order and to promote workplace health and safety as well as compliance with the regulatory framework of the Occupational Health and Safety Act and its Regulations, Mr. Eagles shall make 18 presentations of approximately one hour in duration, including time for questions and answers, at various venues such as the annual spring conference of the Nova Scotia Safety Council, the Nova Scotia Community College, Akerley Campus in courses relating to the Occupational Health and Safety Certification Program, the Bricklaying and Masonry course and the Nova Scotia Construction courses in harness and scaffolding as well as the foreman’s course. These 18 presentations will be completed within the next 18 months; that is, on or before August 12, 2011 unless such date is extended by order of the Court. The content and venues for these presentations shall be mutually agreed by the Department of Environment and Labour and Mr. Eagles. For greater clarity, the content and presentations shall follow the general outlines which were provided by the parties to the Court on February 5th, 2010. 3. Mr. Eagles shall appear in Provincial Court in Dartmouth, Nova Scotia on February 11th, 2011 and provide a status report on the progress towards the full implementation of the Court’s order, which update should include, if feasible, a listing of the date and location of presentations that have been made, the length of those presentations and the number of people in attendance. also would note that, if there was any feedback from the presentations, would appreciate receiving summary of the feedback provided by those people who attended the sessions but in any event, an overview of the feedback from the sessions is to be related to the Court during the status report on February 11, 2011. Finally, in terms of the rehabilitation, reform and the educational aspects of this order and would also request that the overview outline how the presentations evolved after the parties received and reviewed the feedback. Theodore K. Tax. J.P.C.

The on-site supervisor was convicted of two offences under the Fall Protection and Scaffolding Regulations (failing to ensure a guardrail was installed at the perimeter of the work area and failing to ensure that an intermediate or 'mid' guardrail was installed) after a mason was killed when he fell from scaffolding on the job site. Prior to the mason beginning work for the day and the supervisor temporarily leaving the site, he had told another employee to install a 'mid' guardrail but no such rail was in place when the mason fell. The court found that having decided to use guardrails, the defendant was required to make certain that those guardrails were, in fact, constructed in the manner prescribed in the regulations and to supervise and inspect the scaffolding before work was undertaken, no matter the experience level of his crew. In regard to the first count, what the supervisor thought might be a substitute for part of a proper guardrail system did not comply with the regulations. The defendant will donate $2,000 to the Public Education Trust Fund and make 18 presentations at various venues over the next 18 months; he will appear in court on a specified date to provide a status report on his progress in this regard. This was not a case of reckless disregard or deliberate indifference to the legislated safety measures and the defendant's degree of moral blameworthiness was at the lower end of the continuum as he neither created nor negligently left in place a hidden hazard. Both the actions of another workman and the deceased's own actions had contributed to the fall.

5_2010nspc18.txt

C.A.C. No. 107989 NOVA SCOTIA COURT OF APPEAL Chipman, Jones and Freeman, JJ.A. and HER MAJESTY THE QUEEN Respondent Revised Decision: The text of the original decision has been revised to remove personal identifying information of the parties on January 27, 2008. Cameron S. McKinnon for the Appellant Robert C. Hagell for the Respondent Appeal Heard: October 6, 1994 Judgment Delivered: October 6, 1994 THE COURT: Appeal dismissed per oral reasons for judgment of Jones, J.A.; Chipman and Freeman, JJ.A. concurring. 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) Subject to subsection (3.1), where an accused is charged with an offence under section 151, 152, 153, 155, 159, 160, 170, 171, 172, 173, 271, 272, 273, 346 or 347, 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. The reasons for judgment of the Court were issued orally by: JONES, J.A.: On June 15, 1994 G.A.L. was found guilty on two counts of indecent assault against S.S. and B.J.R. between January 1, 1973 and December 31, 1977. These assaults took place in trailer where the two girls, at the time, were living with their mother who was in common‑law relationship with G.A.L.. The assaults consisted of repeated fondling of the breasts and vagina of B.J.R. when she was between 13 and 16 years old. There was one incident of fondling of the breast of S.S. when she was between 14 and 17 and on another occasion, an attempt to pull down the zipper on her pants. B.J.R. and S.S. left home in 1977. B.J.R. made complaint with respect to these incidents in 1992. S.S. complained at the same time after talking to B.J.R.. At the time the first incident occurred G.A.L. was 55 years old. He was employed full time and was not user of drugs or alcohol. Shortly after the girls left home their mother moved in with them. Approximately two years after that G.A.L. married his present wife. There was a substantial conflict in the evidence. The appellant denied assaulting the complainants. The trial judge, after carefully considering the evidence, convicted the appellant on both counts. He sentenced the appellant to nine (9) months imprisonment with respect to the assault on B.J.R. to be followed by two years probation. The sentence on the second count was one month consecutive. The appellant has appealed from his convictions. There are five grounds of appeal. We have carefully considered the grounds of appeal and we can find no error on the part of the trial judge in conducting the trial or in weighing the evidence. The main issue on the trial was the matter of credibility. In assessing that issue the trial judge carefully considered the evidence of the witnesses including the contradictions in the testimony. After carefully reviewing the evidence we cannot say that the verdict was unreasonable or not supported by the evidence and accordingly the appeal is dismissed. Jones, J.A. Concurred in: Chipman, J.A. Freeman, J.A. CANADA PROVINCE OF NOVA SCOTIA 1994 C.A.C. IN THE NOVA SCOTIA COURT OF APPEAL on appeal from THE SUPREME COURT OF NOVA SCOTIA HER MAJESTY THE QUEEN G.A.L. HEARD BEFORE: The Honourable Justice J.E. Scanlan PLACE HEARD: Truro, Nova Scotia DATES HEARD: June 14 and 15, 1994 COUNSEL: Susan MacKay, for the Crown Cameron S. McKinnon, for the Defendant CASE ON APPEAL C.A.C. No. 107989 NOVA SCOTIA COURT OF APPEAL and HER MAJESTY THE QUEEN Respondent REASONS FOR JUDGMENT BY: JONES, J.A. (orally)

The appellant was convicted of indecent assault against two young girls. He appealed on five grounds related to a substantial conflict in the evidence. Dismissing the appeal, that there was no error on the part of the trial judge in weighing the evidence.

d_1994canlii7605.txt

IN THE SUPREME COURT OF NOVA SCOTIA Citation: Leslie v. Apartment Holding Ltd., 2011 NSSC 48 Date: 20110203 Docket: Tru No. 272838 Registry: Truro Between: Alissa Leslie and Harry Bryson v. Apartment Holding Limited Defendant Judge: The Honourable Justice N. M. Scaravelli Heard: September 20, 21, 22, 23, 27, 28, 29, 30, 2010, in Truro, Nova Scotia Counsel: Jamie MacGillivray, Esq., and Nicolle Snow, for the plaitniffs Colin Piercey, Esq., and Nathan Sutherland, Esq., for the defendant By the Court: [1] This is an action for damages arising out of injuries suffered by the plaintiffs when they escaped fire by jumping from the top floor of three-storey apartment building owned by the defendant. [2] Liability and damages are at issue in this case. [3] The plaintiffs were occupying apartment No. 302, 265 Young Street, Truro at the time of the fire. The apartment building consisted of 12 units with three floors. The first floor was below ground level and was accessed by entering the building and walking downstairs. Each of the three floors contained four apartment units all accessed by way of common hallway with two apartments on each side of the common hallway. Self closing doors were located at both ends of the common hallway leading to stairs and stairwells used for entering and exiting the building. The stairwell located on the south side of the building led to the front door. The north stairwell led to the back door of the building. The plaintiff, Ms. Leslie’s apartment was located on the top floor at the north-east corner adjacent to the north stairwell. She was the tenant and resided in the apartment with her two young children and occasionally with her partner at the time, the plaintiff Harry Bryson. Her lease commenced September 1st, 2005, approximately one year before the fire. [4] The apartment building had fire alarm panel located on the first floor of the basement hallway. Each floor had fire alarm bell system located in the centre of the hallway on the wall that was wired into the fire alarm panel. fire alarm pull-station was also located on the wall next to the bell system. Each hallway contained smoke or heat detector located on the ceiling. Each stairwell also had smoke detector located on the ceiling above the stairwell. These were also wired into the fire alarm panel. In addition, each apartment had its own battery-operated smoke detector. [5] This apartment building was identical in layout to an adjacent apartment building located at 269 Young Street and owned by the defendant at the time. According to the CMHC insurance certificate prepared at the time of acquisition of both properties by the defendant, the attic of the apartments were divided into two sections by firewall running north and south along the ceiling hallway dividing the eastern portion of the roof from the western portion. [6] On the evening of August 24th, 2006, Ms. Leslie and Mr. Bryson were both in the apartment. Ms. Leslie’s older son was staying overnight at his grandmother’s home. Her younger son was asleep in his bedroom. Mr. Bryson stated he went to bed that evening around 10 p.m. Ms. Leslie was in the livingroom. He believes she woke him around a.m. and told him there was fire as the apartment was full of smoke. They walked to the living room window and saw flames and sparks on the overhanging eves of the roof. He also saw smoke coming out of the window at the north stairwell landing below and to his left. He stated it was quiet. There was no sound of fire alarm in the building or sirens outside. He spoke through the window opening to people standing outside. Shawna White, tenant, told them the exit doorways were on fire and they would have to jump. The smoke in the apartment continued to worsen. [7] Mr. Bryson stated he told Ms. Leslie they were going to have to jump. He went to the child’s bedroom and Ms. Leslie went to her bedroom. Mr. Bryson was able to tie bedding around the child and lower him out of the bedroom window to people below. Mr. Bryson made an effort to go to Ms. Leslie’s bedroom but could not see. He called her name. Hearing no reply he assumed she got out through her bedroom window. He went back to the child’s bedroom to await for assistance from the fire department. To avoid being overcome by smoke he placed stuffed animal over his face to assist his breathing. He repeatedly moved in and out of the window to get fresh air. He still could not hear the sound of the fire department. Mr. Bryson stated that sparks and building fragments were floating around him as he hung from the window. He decided to let go, landing on his feet suffering extensive injuries to his legs. He estimated 10 minutes expired from the time he was awakened to the time he let go from the window. He saw Ms. Leslie lying on the ground when he was on the ground. They were removed to an ambulance and taken to the hospital. [8] Mr. Bryson stated he is no longer in relationship with Ms. Leslie. He has been in another relationship for the past two years. [9] Mr. Bryson stated he was familiar with the apartment building as he previously stayed with his sister who occupied two apartments in the building prior to Ms. Leslie’s tenancy. He stated the hallway doors to the stairwells were self-closing. These doors were open most of the time. The self-closing hinge on the north hallway door adjacent to Ms. Leslie’s apartment was broken and not repaired at the time of the fire. The window in the north stairwell was open most of the time causing the door to slam shut with gust of wind. Mr. Bryson stated there were no fire extinguishers located in the building. There was smoke detector in Ms. Leslie’s apartment hallway ceiling between the living room and bedroom. He had never replaced any batteries in the unit nor did he ever hear the unit beeping at any time. [10] Ms. Leslie testified she was asleep on the living room sofa when she woke up “gaging and gasping, unable to breath”. There was blackness all around her. She walked through the open bedroom door to wake Mr. Bryson. There was lot of smoke in the bedroom. She believes the bedroom clock showed the time as 1:12 a.m. Ms. Leslie stated they called out for help through the window. Shawna White, tenant, told them the building was on fire. Ms. Leslie saw smoke and flames coming out of the lower stairwell window on the north side of the building. She stated the over hanging portion of the roof was in flames. Mr. Bryson helped her to sitting position on the bedroom window and left to go to the child’s bedroom. He later shouted that he had the child. Ms. Leslie stated by this time the room was completely black and she was unable to see. She was weak from breathing. She moved from sitting position hung from the window with her hands before letting go. Ms. Leslie suffered serious injuries from the fall. She recalls it being very quiet outside with no sign or noise of fire trucks. [11] Ms. Leslie testified the hallway door had “cranks” at the top of each door. She stated the doors were always open and she believed that maybe the purpose of the crank was to keep the door open. She stated that Mr. Lloyd, the superintendent, never told them to keep the hallway doors closed. [12] Ms. Leslie stated the smoke detector in her apartment was located between the kitchen and the bedroom. Mr. Lloyd did not tell her whether it was battery operated or wired into the system. She assumed the smoke detector was connected to the main system. She could not recall ever seeing light on the smoke detector. There were never any beeping noises coming from the smoke detector that would indicate weak battery. [13] Under cross-examination she confirmed her discovery evidence that she had no specific recollection of the time of 1:12 a.m. but stated this stuck in her mind from viewing the bedroom clock. She further stated the hallway doors were always open on her floor. When she awoke there was no sound from smoke detector. While sitting on her window ledge she recalled seeing the ambulance on Young Street. She believes the ambulance arrived before the fire trucks. She estimates the time lapse from waking to exiting from the window to be five to six minutes. Ms. Leslie acknowledged she did not know where the fire was in relation to her apartment when she woke up. She made the decision to jump because her apartment was full of smoke, the building was on fire and the fire department was not there. [14] Mrs. Christie, who is the mother of the plaintiff Ms. Leslie, testified she visited her daughter and grandchildren at the apartment on regular basis, at least once per week. She stated the hallway doorways to the stairs were always open. She did not know how they were held open. [15] Shawna White was tenant of apartment 303 located on the north-west side of the upper floor directly across the hallway from the apartment occupied by Ms. Leslie. She testified the third floor hallway doors were always in the open position. They were held open by wooden stops wedged under the doors. She stated she became aware of the fire around 12:30 a.m. when she was awakened by her roommate. They opened the apartment door and noted the hallway was pitch black. They closed the door and went to window in their apartment and called for help. When they went back to the apartment door to attempt to leave, the door would not open. Both Ms. White and her roommate escaped by jumping out the apartment window. [16] On cross-examination Ms. White acknowledged making previous statement wherein she stated she woke up around 12:30 a.m. and asked two visitors in the apartment to leave. In her statement she indicated the visitors were there close to 1:00 a.m. and to her knowledge there was no fire when they left. She adopted this statement as being accurate. Ms. White stated five to ten minutes could have passed until they tried to open the apartment door the second time. She could not recall previously stating she heard door bells sounding. Although she could not recall making this statement she adopted it as being accurate. [17] On re-direct examination, Ms. White confirmed her previous statement that there was no indication of any fire alarms sounding. [18] David Westlake, Deputy Fire Chief, testified the fire was called in at 1:26 a.m. He estimated fire truck arrived on scene at approximately 1:30 a.m. He stated call was made to the ambulance service on route, but he was not aware of the time of arrival. His report indicates that firefighters assisted tenants from the third floor south-west corner apartment using an extension ladder. [19] Robert Orr, now retired, was Deputy Fire Marshall for the Province of Nova Scotia since 1989. He was contacted by the Truro Fire Chief to investigate the fire. The defendant’s insurance company had retained Maritime Fire Investigations, operated by Mr. Greg Clarke, to conduct fire investigation. It was agreed the two would conduct joint investigation. Mr. Orr prepared report based on notes he took at the time. He arrived on the scene around 7:15 a.m. the morning of the fire. The building was essentially wooden structure with vinyl siding on exterior walls and asphalt roof shingles. He observed the roof was completely burned out. The third floor hallway was blackened. Mr. Orr determined the fire started at the south-west corner of the hallway on the third floor. He stated it was fast, hot fire that burned through the ceiling hatch, throughout the roof and down the south stairwell towards the front entrance. The south hallway door was in an opened position at the time of the fire which allowed the fire to go downstairs. He referred to hallway doors as “fire doors” which are required to be self-closing. There was heavy burning on the south stairs. The fire also worked its way north along the third floor hallway. He could not recall if the north stairwell door was opened or closed. [20] In his fire investigation report dated September 5th, 2006, Mr. Orr states he spoke to Mr. Lloyd, the Building Superintendent, at the scene who told him the fire alarm did not operate when pulled by him and had not been working for some time. Also the smoke alarms did not work so the tenants did not have advance warning of the fire. Mr. Orr testified he took notes at the time. He stated the fire alarm and smoke detectors were designed to go off automatically as they were wired into the fire alarm system. The fire alarm system could also be pulled manually at the pull-station in the hallway. He stated no accidental cause of the fire could be found. He suspected some form of accelerant may have been spread on the hallway and south stairs that caused the fire to burn so fast. Although, the cause of the fire remained undetermined following testing, it was suspected that the fire was incendiary in nature. [21] On cross-examination Mr. Orr explained tenants would not have had any warning as the smoke detectors would not have detected smoke and gone off. Although not expressed in his report, Mr. Orr thought the tenants would have been unable to escape via the hallway as the fire burned hot and fast. [22] Mark Wentzel, an electrical engineer, investigated and prepared report at the request of Maritime Investigation Services who were retained by the defendant’s insurers. Mr. Wentzel was called to give evidence by the plaintiff. Mr. Wentzel examined the electrical system five days after the fire, having been advised the fire alarm did not sound in the building at the time of the fire. He testified the fire alarm panel system was 25 to 30 years old. Upon examination, there was no fire damage to the fire panel on the lower floor. He noted corrosion in the panel likely caused by water. He could not find an annual inspection log which he expected should have been located at the panel. Mr. Wentzel testified the fuse on the bell circuit was blown and not the fuse on the fire alarm panel as he stated in his written report to Maritime Investigations. This was determined on subsequent investigation number of months later. He concluded there was no evidence the system was operating at the time of the fire. There was no electrical arcing that caused the fire. He speculated that the fire may have burned the fuse. He was not conclusive on this point nor was this mentioned in his written report. Mr. Wentzel did acknowledge that the wired-in smoke detectors should go off before the bell circuit could possibly overheat to cause the fuse to blow. [23] Ken Lloyd, Building Superintendent, testified on behalf of the defendant. He and his family resided in Unit 204 located on the second floor of the building. He described his duties as general maintenance including cleaning, painting, light fixtures and drywall work. In response to Mr. Bryson’s assertion that the third floor hallway lights were burnt out and the self-closing arm on the north hallway door was broken, Mr. Lloyd stated this may have been the case, and if so, he believed he “would have” changed the light and repaired the arm. Mr. Lloyd explained that he was always working 12 hour shifts at another job during this period which may have prevented him from performing repairs in timely manner. Mr. Lloyd stated there was an on-going problem with the third floor hallway doors being kept open as fire code required they be closed. He stated the tenants would use various items to prop the door open and upon discovery he would remove the door stops and close the door. [24] Mr. Lloyd was asleep at the time of the fire and was awakened by tenant shouting from outside the building. He looked out his window and saw glow coming off the adjacent apartment building. He also saw smoke and flames coming from the south entrance doorway. Mr. Lloyd stated there was no fire alarm bell sounding when he woke up. He got his family out through the living room window. He then exited his apartment door to the hallway and encountered what he described as wall of smoke. He touched his way along the wall and pulled the fire station handle. The alarm did not go off. He then knocked on the door of the other two occupied apartments on his floor alerting the tenants. When he returned to his apartment he saw glow through the window of the closed south hallway door. He then went to the closed north hallway door and felt lot of heat. Mr. Lloyd returned to his apartment and climbed out of his apartment window. [25] Mr. Lloyd testified he had no prior knowledge of the fire alarm system not working. He stated the alarm system had gone off before with false alarms and kids smoking. He estimated the last time the alarms sounded was two or three months prior to the fire. He was not aware if any inspections of the alarm system were ever carried out. He stated he did not recall speaking to Mr. Orr, retired Deputy Fire Marshall, who was investigating the fire. [26] Under cross-examination, Mr. Lloyd did not dispute Mr. Orr’s assertion that he had spoken with Mr. Lloyd. His position was that he did not remember the conversation. When questioned about Mr. Orr’s testimony wherein Lloyd told him there were problems with the fire alarm system not working on previous occasions, Mr. Lloyd stated he would not have said that. He stated it was not his role to maintain the hallway fire alarms. Mr. Lloyd confirmed there were not any fire extinguishers located in the building. He stated the fire alarm system was very sensitive and was previously set-off by cigarette smoke. He did not check the hallway doors on the third floor on the evening of the fire as he was working that evening. [27] Mr. Lloyd stated he spoke with the plaintiff Mr. Bryson while Bryson was sitting on the apartment window ledge “trying to get fresh air”. He told Bryson to wait for the fire department. Mr. Lloyd acknowledged that other tenants on the third floor as well as himself left the building through apartment windows prior to the arrival of the fire department. [28] Mr. Salah was manager of the apartment building owed by the defendant. He testified he would travel from Halifax to check on the property twice month. He did not know much about the fire alarm system and assumed it was working as Mr. Lloyd had previously complained about kids and false alarms “shortly” before the fire. He did not instruct Mr. Lloyd to have the alarm system inspected on regular basis. [29] Under cross-examination, he acknowledge the fire alarm system was not maintained or inspected. [30] Mr. Greg Clarke, President of Maritime Investigation Services, testified on behalf of the defendant. He is certified fire explosion investigator. He investigates origins and causes of fires. Mr. Clarke took extensive photos of the damaged building following the fire in conjunction with his written report. He also submitted samples for testing for possible accelerant that may have caused the fire. The testing was negative which did not surprise Mr. Clarke as flammable liquid, if it existed, could have been consumed in the fire. His conclusion is that the cause of the fire remains undetermined. [31] During Mr. Clarke’s testimony he indicated there were possibly three areas of origin of the fire, namely, the south-west third floor hallway, the south stairwell and the south entrance, given the severity of burning in these areas. He was unable to determine if the fire burned up or down the stairs. Regarding the third floor, Mr Clarke stated the fire burned through the ceiling hatch to the roof. The photos revealed the south-west corner of the roof received the heaviest fire damage. He acknowledged the attic firewall would have slowed the progress of the roof fire from the west side of the roof to the east side of the roof. [32] The Supreme Court of Canada summarized the elements required to make out claim for damages and negligence in the case Mustapha v. Culligan of Canada Ltd., [2008] [3] successful action in negligence requires the plaintiff demonstrate (1) that the defendant owed him duty of care; (2) that the defendant’s behaviour breached the standard of care; (3) that the plaintiff sustained damage; and (4) that the damage was caused, in fact and in law, by the defendant’s breach [33] The defendant concedes that, as landlord, it owed duty of care to the plaintiffs. The defendant denies it breached the standard of care. Further, the defendant concedes the plaintiffs suffered damages but denies they were caused by any act or omission by the defendant. Duty of Care [34] The common law duty of care arises from the proximity of the relationship between landlord and the tenants of its multi-unit residential building. In this case, the defendant owed duty of care to the plaintiffs to ensure they were reasonably safe from injury while residing in the premises. In my view this would reasonably include the installation and maintenance of an operational fire alarm system. [35] The defendant was also subject to statutory obligations. The Residential Tenancies Act sets out statutory conditions that apply to all residential leases including the requirement to keep the premises in good state of repair and to comply with any statutes regarding safety. The National Fire Code of Canada (adopted by the Nova Scotia Fire Safety Act, S.N.S. 2002, c. 6) required the installation of an operational fire alarm system which must be tested yearly. Also, yearly testing of the smoke alarms was required. [36] accept Mr. Bryson’s evidence regarding the broken self-closing hatch on the opened north hallway door at the time of the fire. also accept Mr. Orr’s evidence of his conversation with Mr. Lloyd regarding the malfunction of the alarm system. Mr. Lloyd lacked any specific recollection regarding these issues. Further, accept the evidence of the plaintiffs and the other witnesses who testified the hallway doors on the third floors were continuously left in an open position and that the plaintiffs were not advised by the defendant nor were they aware that the doors were to be kept in closed position. [37] Although there is no evidence the defendant was responsible for the fire, I find the defendant’s conduct created an unreasonable risk of harm in the event of a fire. The fire alarm system was not functioning at the time of the fire. There were problems with the fire alarm system not functioning prior to the fire which was known to the defendant’s supervisor; the defendant did not maintain, test, or inspect at all, its fire alarm system that was in excess of 25 years old at the time of the fire; the self-closing hallway “fire doors” on the third floor were continually in an open position and the north hallway door adjacent to the plaintiff’s apartment, which was open at the time of the fire, had a broken self-closing latch at the time of the fire; the battery operated smoke alarm in the plaintiff’s apartment did not function at the time of the fire. The plaintiff, Ms. Leslie, was uninformed and unaware as to whether the smoke detector formed part of the fire alarm system or was self-contained and the responsibility of the tenant. [38] The defendant’s conduct resulted in the failure to provide the benefit of warning of the existence of smoke and/or fire in the apartment building. As result, the defendant breached the standard of care owed to the plaintiffs. [39] Having determined the defendant breached the standard of care, am required to determine whether the plaintiffs, on balance of probabilities, established the defendant’s acts or omissions caused the injuries and, therefore, the damages suffered by the plaintiffs. [40] The Supreme Court of Canada has confirmed the “but for” test as the basic test for causation in negligence actions while stating that the “material contribution” test may be applied under certain circumstances. These general principles for causation were reviewed in Resurfice Corp. v. Hanke, 2007 SCC (CanLII): 21. First, the basic test for determining causation remains the “but for” test. This applies to multi-cause injuries. The plaintiff bears the burden of showing that “but for” the negligent act or omission of each defendant, the injury would not have occurred. Having done this, contributory negligence may be apportioned, as permitted by statue. 22. This fundamental rule has never been displaced and remains the primary test for causation in negligence actions. As stated in Athey v. Leonati, at para. 14, per Major J., “[t]he general, but not conclusive, test for causation is the “but for” test, which requires the plaintiff to show that the injury would not have occurred but for the negligence of the defendant”. Similarly, as noted in Blackwater v. Plint, at para. 78, “[t]he rules of causation consider generally whether “but for” the defendant’s acts, the plaintiff’s damages would have been incurred on balance of probabilities.” 23 The “but for” test recognizes that compensation for negligent conduct should only be made “where substantial connection between the injury and the defendant’s conduct is present. It ensures that defendant will not be held liable for the plaintiff’s injuries where they “may very well be due to factors unconnected to the defendant and not the fault of anyone”: Snell v. Farrell, at p. 327, per Sopinka J. 24. However, in special circumstances, the law has recognized exceptions to the basic “but for” test, and applied “material contribution” test. Broadly speaking, the cases in which the “material contribution” test is properly applied involve two requirements. 25. First, it must be impossible for the plaintiff to prove that the defendant’s negligence caused the plaintiff’s injury using the “but for” test. The impossibility must be due to factors that are outside of the plaintiff’s control: for example, current limits of scientific knowledge. Second, it must be clear that the defendant breached duty of care owed to the plaintiff, thereby exposing the plaintiff to an unreasonable risk of injury, and the plaintiff must have suffered that form of injury. In other words, the plaintiff’s injury must fall within the ambit of the risk created by the defendant’s breach. In those exceptional cases where these two requirements are satisfied, liability may be imposed, even though the “but for” test is not satisfied, because it would offend basic notions of fairness and justice to deny liability by applying “but for” approach. 26. These two requirements are helpful in defining the situations in which an exception to the “but for” approach ought to be permitted. Without dealing exhaustively with the jurisprudence, few examples may assist in demonstrating the twin principles just asserted. 27. One situation requiring an exception to the “but for” test is the situation where it is impossible to say which of the two tortious sources caused the injury, as where two shots are carelessly fired at the victim, but it is impossible to say which shot injured him: Cook v. Lewis, 1951 CanLII 26 (S.C.C.), [1951] S.C.R. 830. Provided that it is established that each of the defendants carelessly or negligently created an unreasonable risk of that type of injury that the plaintiff in fact suffered (i.e. carelessly or negligently fired shot that could have caused the injury), material contribution test may be appropriately applied. 28. second situation requiring an exception to the “but for” test may be where it is impossible to prove what particular person in the casual chain would have done had the defendant not committed negligent act or omission, thus breaking the “but for” chain of causation. For example, although there was no need to rely on the “material contribution” test in Walker Estate v. York Finch General Hospital, this Court indicated that it could be used where it was impossible to prove that the donor whose tainted blood infected the plaintiff would not have given blood if the defendant had properly warned him against donating blood. Once again, the impossibility of establishing causation and the element of injury-related risk created by the defendant are central. [41] In order to determine causation using the “but for” test in the present case it would have to be possible for the plaintiffs to prove that, but for the failure of the defendant to maintain functional smoke and alarm system and/or closed north hallway fire door, the plaintiffs would have had sufficient time to exit their apartment and escape down the adjacent north stairwell or to await rescue by the fire department before being overcome by smoke and jumping from the window. In my view, evidence is not available to establish the progress of the rate of smoke and fire from the south end to the north end of the third floor hallway over time line which would be necessary to meet the test. Although the fire was described as hot and fast fire, there was no available evidence to prove on balance of probabilities how much time the plaintiffs would have had to escape down the adjacent north stairwell or how much time they would have had to wait for the fire department had the smoke or fire alarm activated. [42] Based on the evidence, there were three possible locations where the fire may have originated, namely, the southwest corner of the third floor hallway, the south stairwell, and the south entrance. The plaintiffs’ apartment was located on the north east corner of the third hallway adjacent to the north stairwell. There is evidence the fire likely occurred between 12:30 and a.m. The plaintiffs were awakened by smoke at 1:12 a.m. By this time Ms. White and her roommate were already outside the apartment building. The fire was called into the fire department of 1:26 a.m. and the first fire truck arrived at approximately 1:30 a.m., response time of four minutes. [43] When the plaintiffs were first awakened by smoke and looked out their window the fire had already worked its way up through the third floor attic hatch to the roof and from the west side of the attic fire wall to the east side of the roof eves where flames were visible to the plaintiffs. At this time the plaintiffs could also see smoke and flame coming out of the open north stairwell window. Smoke preceded the fire on the third floor hallway. Smoke and fire were able to freely flow to the north stairwell as a result of the fire door being open at the time. There is no evidence capable of establishing with sufficient probability, the time of the fire in relation to the time the fire alarm or smoke detector would have sounded, the proximity of the smoke or fire to the plaintiffs’ apartment at that time and the amount of time it took the smoke or fire to engulf the north end of the hallway. [44] Under the circumstances of this case find it appropriate to apply the “material contribution” test. The fact that the defendant was not responsible for starting the fire does not excuse liability where the defendant’s conduct materially contributed to the plaintiffs injuries. In Athey v. Leonati 1996 CanLII 183 (SCC), [1996] S.C.J. No. 102 the Court stated: 13. Causation is established where the plaintiff proves to the civil standard on balance of probabilities that the defendant caused or contributed to the injury: Snell v. Farrell, 1990 CanLII 70 (SCC), [1990] S.C.R. 311; McGhee v. National Coal Board, [1972] All E.R. 1008 (H.L.). 15. The “but for” test is unworkable in some circumstances, so the courts have recognized that causation is established where the defendant’s negligence “materially contributed” to the occurrence of the injury: Myers v. Peel County Board of Education; 1981 CanLII 27 (SCC), [1981] S.C.R. 21, Bonnington Castings, Ltd. v. Wardlaw, [1956] All E.R. 615 (H.L.); McGhee v. National Coal Board, supra. contributing factor is material if it falls outside the de minimis range: Bonnington Castings, Ltd. V. Wardlaw, supra; see also v. Pinske (1988), 1988 CanLII 3118 (BC CA), 30 B.C.L.R. (2d) 114 (B.C.C.A.), aff’d 1989 CanLII 47 (SCC), [1989] S.C.R. 979. 16. In Snell v. Farrell, supra, this Court recently confirmed that the plaintiff must prove that the defendant’s tortious conduct caused or contributed to the plaintiff’s injury. The causation test is not to be applied too rigidly. Causation need not be determined by scientific precision; as Lord Salmon stated in Alphacell Ltd. v. Woodward, [1972] All E.R. 475, at p. 490, and as was quoted by Sopinka J. at p. 328, it is “essentially practical question of fact which can best be answered by ordinary common sense”. Although the burden of proof remains with the plaintiff, in some circumstances an inference of causation may be drawn from the evidence without positive scientific proof. 17. It is not now necessary, nor has it ever been, for the plaintiff to establish that the defendant’s negligence was the sole cause of the injury. There will frequently be myriad of other background events which were necessary preconditions to the injury occurring. To borrow an example from Professor Fleming (The Law of Torts (8th ed. 1992) at p. 193), “fire ignited in wastepaper basket is caused not only by the dropping of lighted match, but also by the presence of combustible material and oxygen, failure of the cleaner to empty the basket and so forth”. As long as defendant is part of the cause of an injury, the defendant is liable, even though his act alone was not enough to create the injury. There is no basis for reduction of liability because of the existence of other preconditions: defendants remain liable for all injuries caused or contributed to by their negligence. 18. This proposition has long been established in the jurisprudence. Lord Reid stated in McGhee v. National Coal Board, supra, at p. 1010: It has always been the law that pursuer succeeds if he can shew that fault of the defender caused or materially contributed to his injury. There may have been two separate causes but it is enough if one of the causes arose from fault of the defender. The pursuer does not have to prove that this cause would of itself have been enough to cause him injury. 19. The law does not excuse defendant from liability merely because other casual factors for which he is not responsible also helped produce the harm....(Citations omitted). [45] The wired-in smoke detectors, when in working condition, were sensitive to smoke. There is evidence that prior false alarms related to smoking cigarettes in these areas. Failure of the smoke detectors or fire alarms to activate allowed time for the smoke and fire to progress before being detected by the plaintiffs. The open north stairwell door allowed the smoke and fire to spread down the stairwell more quickly. [46] find the relevant factors relating to the plaintiffs’ injuries are sufficiently connected to the defendant’s negligence. Contributory Negligence [47] The defendant claims the plaintiffs share responsibility for any liability assessed to the defendant. That their contributory negligence arises from the unreasonable actions of the plaintiffs when they discovered the fire. Further that the plaintiffs failed to ensure the battery-operated smoke alarm in their apartment was functional. [48] Ms. Leslie stated she was aware that smoke detectors in the hallways and stairwells and the fire alarm were wired into the central system. She assumed the smoke detector located in her apartment was also wired in. She did not observe any lights or beeps coming from the smoke detector in her apartment. There was nothing contained her lease regarding the responsibility of maintaining the smoke detector in her apartment. She stated she was not advised by the supervisor that her smoke detector was battery-operated and was her responsibility to maintain. Ms. Leslie was not challenged on this evidence. Mr. Lloyd’s evidence was that he would normally change smoke detectors in apartments upon requests and after tenants moved out. find the plaintiffs acted reasonably in escaping out of the windows where the building was on fire, they were being overcome by heavy smoke in their apartment and there were no fire trucks present at the time to assist in rescue. [49] Under the circumstances, am not satisfied there was any contributory negligence on the part of the plaintiffs. Damages Mr. Bryson [50] The plaintiff Harry Bryson, is 37 years of age. As result of jumping out of the third floor apartment window and landing on his feet he sustained serious fractures to both ankles and fracture of the fibula of his left leg. He was transported by ambulance to Colchester Regional Hospital in Truro for assessment and thereafter to Queen Elizabeth II Health Services Centre in Halifax. He underwent surgery the same day for his left fibula fracture. Further surgery was performed on his left ankle on September 11th, 2006 and his right ankle on September 14th, 2006. The surgeries involved insertion of plates, screws, and pins. As well, external metal fixtures were attached to immobilize the limbs. The surgeries were performed by Dr. Coles, Orthopaedic Surgeon. Mr. Bryson was immobilized to the extent of non-weight bearing on his legs. He was discharged from the hospital on September 18, 2006. [51] Mr. Bryson testified he remained non-weight bearing until December 2006. He mobilized by way of wheelchair. In December he utilized walker and cane but continued to use the wheelchair for longer distances. He stopped using the wheelchair in the Spring of 2007. During convalescence he stayed with his father in Bible Hill and later with his sister in her apartment. He relied upon them for meals, bathing and toiletry. He continued taking Dilaudid for pain and as well as sleeping pills while residing with his father. Mr. Bryson attended physiotherapy from January to August 2007. Records indicate total of 58 sessions. [52] Mr. Bryson returned to work as production worker at Peter Kohler Windows, Debert on modified hours beginning July 2007. He resumed full-time hours September 2007. He continues to work on the same production line as before the accident. His duties include lifting windows of various sizes and weight. Employees are required to wear steel toed boots which Mr. Bryson wasn’t able to do as they hurt his ankles. His employer allows him to wear sneakers with composite caps over the top. He has worked at other positions withing the plant over the years. He stated his legs are “beat” at the end of the day requiring him to put his feet up for about an hour at the end of work day. [53] Mr. Bryson underwent surgery in July 2010 to remove hardware in his left leg that was causing him pain and discomfort. The surgery has lessened the pain in his leg. He still has difficulty with stairs, but less so after the removal of hardware. He is not able to run or engage in sports that require impact on his feet. He has stopped walking as form of exercise. He is able to do general household duties. He can mow the lawn with sit-down lawn mower. He is unable to lift heavy objects. Mr. Bryson stated he experiences pain and discomfort on daily basis and has arthritis in his ankles. Dr. Coles advised him he is candidate for right ankle fusion. He currently takes Ibuprofen and Tylenol Arthritis tablets. [54] Dr. Coles specializes in treating patients recovering from traumatic injuries. He prepared two updated medical reports and testified at trial. He stated it is possible that further operation may be carried out in the spring of 2011 to remove hardware in Mr. Bryson’s right foot. Although still symptomatic on his left side, Dr. Coles described Mr. Bryson’s right ankle as more severely injured than the left. There is wearing of the cartilage layer consistent with arthritis. This will eventually lead to bone-on-bone contact. The pain will progress as this condition worsens. Dr. Coles expects there to eventually be loss of range of motion and impaired standing and walking. His report of February 2nd, 2010 states in part: The prognosis for these injuries is fair. His articular injury was less severe and long-term do not anticipate he will develop significant ankle arthritis to require further surgical intervention, other than the previously described plans for hardware removal. The right tibial pilon fracture had far more significant impaction and cartilage injury. This places him at significantly increased risk of developing post traumatic arthritis in the future. There is high likelihood that he will develop sufficient arthritis in the right ankle and ultimately require ankle fusion or ankle replacement surgery. At this point, now years post injury, he has not shown rapid progression of joint space narrowing or ankle symptoms. This has likely been in part due to self imposed restriction of his activities secondary to his proximal tibial pain. While there has not been rapid progression of his joint space narrowing, there remain signs of mild lateral joint space narrowing and articular incongruity. It is impossible to predict the time course of his arthritis progression. Given his young age, do anticipate that this will become an issue for him in the future, likely requiring further surgery, other than the previously described planned hardware removal. Hopefully hardware removal will be of some benefit in relieving his proximal tibial pain. Again, he remains at increased risk of developing post traumatic ankle arthritis, particularly in the right ankle. As his symptoms progress, anticipate he will benefit from prescription anti-inflammatory medication to manage his pain and stiffness. Ultimately as his symptoms progress anticipate there is high probability that he will require further surgery in the form of ankle fusion or replacement. This would obviously hinder his abilities to continue in his current work position and may require him seeking more sedentary type work in the future. He would benefit from course of physical therapy after such surgery and might require an off-the-shelf ankle support or brace as well. [55] At trial Dr. Coles indicated that an ankle fusion would be more likely than ankle replacement surgery. Following the surgery, Mr. Bryson would be subject to approximately 12 weeks of restrictive mobility. Ultimately, he would still have some flexion of the foot, but not the ankle. [56] In Malcolm Melanson v. Blake Robbins (2009) NSSC 31, discussed the issue of general damages as follows: In assessing non-pecuniary damages the Court is required to take functional approach to compensation, which requires the calculation of an amount of damages needed to provide reasonable comfort to the Plaintiff in the time following the injury. In Sharpe v. Abbot 2007 NSCA (CanLII): [118] The Supreme Court has directed that courts take functional approach to assessing damages for non-pecuniary loss in personal injury cases. [120] ...that assessing damages for non-catastrophic injuries cannot simply be matter of comparing the seriousness of the plaintiff’s injuries with those of the plaintiffs in the trilogy and scaling the award back from the maximum. As was said in Corkum v. Sawatsky (1993), 1993 CanLII 4687 (NS SC), 118 N.S.R. (2d) 137 (T.D.) at pages 154-5, (varied slightly on appeal, but not on this point 1993 CanLII 3135 (NS CA), [1993] N.S.J. No. 490 (QL), 44 A.C.W.S. (3d) 1089 (C.A.)), an assessment of non-pecuniary damages must take account of all of the circumstances in light of the goal of the award of providing some measure of solace for the pain, suffering and loss of enjoyment of life suffered by the plaintiff. In making this obviously difficult assessment the Court will invariably identify the nature and extent of the injuries in order to determine the relevant cases to be considered in establishing range. The Court will then review those cases and determine an award that, in the Court’s opinion, addresses the unique circumstances of the Plaintiff. [57] In the present case find Mr. Bryson suffered serious injuries to his legs. This has involved considerable pain and discomfort through surgeries, immobilization and the rehabilitation process. Although he has returned to work as production labourer, his condition especially his right leg will continue to deteriorate as result of post-traumatic arthritis causing increased pain and discomfort which will limit his physical activities and, therefore impact on his enjoyment of life. He will require prescription medication for pain and will probably require further surgery in the nature of right ankle fusion and subsequent rehabilitation. [58] In determining the range of awards, have reviewed cases submitted by plaintiffs’ counsel including Campbell-MacIsaac v. Deveau (2003), 2003 NSSC 111 (CanLII), N.S.J. No. 170; Trites v. Steeves (2005) N.B.J. No. 275; Melanson v. Steen (2009) N.B.J. No. 218. Counsel submits an award for general damages in the amount of $120,000.00 would be appropriate. [59] have also reviewed cases submitted by defendant’s counsel including Courtney v. Neville (1995), 1995 CanLII 4486 (NS SC), 141 N.S.R. (2d) 241; Mills v. Bougeois Estate (1995), CanLII 4504 (N.S.S.C.); Phillips v. Kendall Estate (1994), CanLII 4400 (N.S.S.C); and Melanson v. Robbins (supra). Relevant cases submitted by the defendant range in general damage awards from $40,000.00 to $65,000.00 in present day values. [60] have also considered my decision in McKeough v. Miller (2009), NSSC No. 394. [61] In Melanson awarded the sum of $65,000.00 general damages to plaintiff who suffered permanent partial disability from the mid-shaft fracture on his left leg. This resulted in an external rotation deformity and left leg discrepancy causing short leg gait. The plaintiff in that case had reached plateau function recovery and was able to tolerate the physical demands of farming operation. [62] In McKeough the plaintiff received serious injuries to his legs resulting permanent partial disability. He was unable to return to his employment as heavy duty truck driver. He walked with cane and permanent limp. This was caused by an external rotation deformity in his right foot caused by the accident. He would ultimately have to undergo knee replacement on his left knee resulting from post-traumatic arthritis. awarded the sum of $85,000.00 general damages. [63] Under the circumstances of this case, I award general damages in the amount of $75,000.00. Past-Loss Income [64] The defendant does not dispute Mr. Bryson lost wages for period following the accident until his return to work at Kohler on full-time basis. It also acknowledges loss of overtime pay and loss of increase pay level over the period. The plaintiff acknowledges receipt of disability payments in the amount of $10,433.00 from SunLife which has subrogated claim. Having reviewed evidence of past earnings and calculations by the parties, find the total loss to be $26,586.00 which leaves an amount of $16,153.00 payable to the plaintiff. Loss of Future Income and Earning Capacity [65] The plaintiff claims that his earning capacity as capital asset has been impaired. In this instance the onus is on the plaintiff to prove there is real possibility of impairment of earning capacity as opposed to proof on balance of probabilities. In Olson v. General Accident Assurance Co. Of Canada (1998), A.J. No. 544 the Court reviewed number of authorities dealing with loss of earning capacity. 51. In determining loss of earning capacity, find on the basis of the Authorities, the following to be the relevant principles (“Principles”): In assessing damages for pecuniary losses, the object sought is full compensation. Although it is virtually impossible to evaluate future losses with complete accuracy, the trial judge must attempt to put the injured party in the position that the party would have enjoyed if the Accident had not occurred: Engel; [1993] S.C.J. No. citation added] It is not loss of earnings, but rather the loss of earning capacity of person, injured by the negligence of another, for which compensation must be made. It is the capacity which existed prior to the Accident that must be valued. In effect, capital asset has been diminished and the question is what was its value: Andrews; [1978 CanLII (SCC), [1978] S.C.J. No. citation added] The amount or value of the loss of earnings in the future need not be proven on balance of probabilities. Although mere speculation will not suffice, “real and substantial possibility” will: Athey [1996 CanLII 183 (SCC), [1996] S.C.J. No. 102 citation added] Even though an injured person may, notwithstanding the impairment of his or her earning capacity, continue his or her employment, the injured person is nevertheless entitled to be compensated by the person whose negligence caused such injury, for such loss. The usual method of valuing such loss is the amount of future loss of earnings: Pallos, Palmer, Earnshaw, Graff, Personal Injury Damages in Canada, p. 202; In assessing damages for loss of future earning capacity the following factors are relevant: Kwei; 1991 CanLII 645 (BC CA), [1991] B.C.J. No. 3344 (C.A.) citation added] namely whether the Plaintiff: Has been rendered less capable overall from earning income from all types of employment. Is less marketable or attractive to potential employers; Has lost the ability to take advantage of all job opportunities which might otherwise have been open to him or her; Is less valuable to him or herself as person capable of earning income in competitive labour market; [66] Mr. Bryson is currently 37 years of age with Grade 10 education. He worked as an unskilled labourer since leaving high school in 1990 until he was employed with Kholer on full-time basis in 2003 where he remained employed until the accident in August 2006. Mr. Bryson returned to work full-time as labourer on the production line with Kholer in September 2007. Given his history, find he likely would have remained employed as production worker or labourer. His current job involves standing for long periods of time and lifting windows of various sizes and weight. He takes breaks whenever he can and takes advantage of sitting where possible. He needs to rest his legs at the end of the day and currently takes non-prescription drugs for pain. The pain in his legs will continue to exacerbate as result of post-traumatic arthritis requiring prescription medication and eventual surgery, likely, an ankle fusion. His recovery will involve period of immobilization and physical therapy. Mr. Bryson is viewed by his employer as good employee. Evidence from his employer indicates efforts would be made to accommodate Mr. Bryson in the event he becomes unable to continue his current job as result of his injuries. [67] am satisfied that Mr. Bryson suffers from residual disabilities that will worsen over the years in terms of pain and discomfort. find that his earning capacity has been impaired and that he is less capable overall from earning income from all types of employment. As an unskilled labourer with minimal education the possibility exists the he will lose the ability to take advantage of all job opportunities which in this field might otherwise be open to him which renders him less marketable. [68] The fact that Mr. Bryson remains employed by his pre-accident employer does not disentitle him to compensation for the impairment. Nor does the possibility that he continue to be employed indefinitely. It is the loss of capacity for which he is entitled to compensation. The difficulty is in the valuation of the loss. The case law reveals two approaches to assessing damages for prospective pecuniary loss: the mathematical approach and the global approach. The mathematical approach relies upon actuarial evidence and statistics. The global approach attempts to arrive at just, fair and reasonable figure to compensate for the loss where the evidence does not permit calculation with any mathematical precision. [69] Loss of earning capacity is reviewed by our Court of Appeal in Newman v. LeMarche, 1994 CanLII 4075 (NS CA), [1994] N.S.J. No. 457. 22. We must keep in mind this is not an award for loss of earnings but as distinct therefrom it is compensation for loss of earning capacity. It is awarded as part of the general damages and unlike an award for loss of earnings, it is not something that can be measured precisely. It could be compensation for loss which may never in fact occur. All that need be established is that the earning capacity be diminished so that there is chance that at some time in the future the victim will actually suffer pecuniary loss. 23. As Davison, J. said in Guadet v. Doucet et al 1991 CanLII 2708 (NS SC), 101 N.S.R. (2d) 309 (N.S.S.C.T.D.) at p. 331: In my view, there are generally two ways to prove loss of future income. Where the evidence permits, definitive findings can be made by trial judge based on comparison of the income that would have been earned had the victim been permitted to continue in his normal employment with the income, if any, the injured party can reasonably expect following his injuries. In these situations, there is usually evidence of employment history before the accident and evidence of the extent of the present limitations on employment. In these situations, actuarial evidence is helpful as guide to the court. In many cases, the plaintiff will not be able to show, on the balance of probabilities, the extent of his loss and this is particulary (sic) true of young victims who have not had the opportunity to develop an employment history or plans for future career. Similar difficulties will be encountered where the injuries do not represent total disability and it is impossible to determine with any arithmetic precision the extent of the loss. In these circumstances, it is my opinion, that the loss should be considered as the loss of an asset diminution in capacity to earn income in the future. In seeking damages for future loss, the burden on the plaintiff is not as stringent as that which exist when he attempts to prove losses which occurred in the past. In Mallett v. McMonagle, [1970] A.C. 166, Lord Diplock stated at p. 176: The role of the court in making an assessment of damages which depends upon its view as to what will be and what would have been is to be contrasted with its ordinary function in civil actions of determining what was. In determining what did happen in the past court decides on the balance of probabilities. Anything that is more probable than not it treats as certain. But in assessing damages which depend upon its view as to what will happen in the future or would have happened in the future if something had not happened in the past, the court must make an estimate as to what are the chances that particular thing will or would have happened and reflect those chances, whether they are more or less than even, in the amount of damages which it awards. This passage received the approval of the Supreme Court of Canada in Janiak v. Ippolito, 1985 CanLII 62 (SCC), [1985] S.C.R. 146;57 N.R. 241, and was referred to by our Appeal Division in MacKay v. Rovers, supra, at p. 242. 24. In making an award for loss of future earning capacity the court must, of necessity, involve itself in considerable guesswork. Indeed, in many cases where there is less than total disability and the loss of earning capacity cannot be calculated on the basis of firm figures, the diminution of earning capacity is compensated for by including it as an element of the non-pecuniary award. See Yang et al v. Dangov et al (1992), 1992 CanLII 4631 (NS SC), 111 N.S.R. (2d) 109 at 126; Armsworthy Wilson v. Sears Canada Inc. (1994), 1994 CanLII 6381 (NS SC), 128 N.S.R. (2d) 345 at 355. It is thus difficult exercise to begin with and from the point of view of an appeal court it is very difficult to say that such an award is inordinately high or inordinately low except in the most obvious cases. [70] Mr. Bryson currently earns more income from his employment than he did prior to the accident. His earnings can be summarized as follows: 2004 $18,361.00 2005 $16,121.00 2006 $23,450.00 (pro-rated) 2008 $27,315.00 2009 $31,720.00 [71] As stated he continues to remain employed full-time and still takes advantage of overtime work. As his arthritis progresses his discomfort will be managed by prescription drugs. He will likely require an ankle fusion in 10 to 15 years which, averaged, would place him at about 50 years of age. It is at this stage Dr. Coles anticipates he may have to seek more sedentary type of work. Other than for his injuries, Mr. Bryson is in reasonable good health although he is smoker. [72] Recognizing that in cases of this nature valuation of impairment of earning capacity is somewhat speculative, I award the sum of $45,000.00. Loss of Valuable Services [73] In Leddicote Nova (A.G.), 2002 NSCA 47 (CanLII), the Court stated the following with respect to loss of valuable services 50 The question becomes to what extent, if at all, have the injuries impaired the claimant’s ability to fulfill home-making duties in the future? Thus, in order to sustain claim for lost housekeeping services one must offer evidence capable of persuading the trier of fact that the claimant has suffered direct economic loss, in that his or her ability or capacity to perform pre-accident duties and functions around the home has been impaired. Only upon proper proof that this capital asset, that is the person’s physical capacity to perform such functions, has been diminished will damages be awarded to compensate for such impairment. [74] Mr. Bryson’s mobility was restricted to non-weight bearing and use of wheelchair for number of months following the accident. He moved to walker then cane before being able to walk without assistance. He relied upon his father and then his sister for food preparation and physical care. At present, he is generally able to perform household duties that do not involve heavy lifting. He stated he is able to climb ladder and utilize his sit-down lawn mower. It is reasonable to conclude that he would be more restricted in his physical abilities in the future, especially when he undergoes further surgery. He is presently living in common-law relationship. Recognizing that his capacity to perform pre-accident duties at home will be impaired to a limited extent, I will allow the sum of $15,000.00 for past and future loss of valuable services. Damages Ms. Leslie [75] Ms. Leslie is currently 30 years of age. She also sustained serious injuries as result of jumping out of her apartment window to escape the fire. She suffered pelvic ring injury with bilateral fractures to her pelvis, bilateral sacral fractures, right elbow fracture and broken rib. She was transported to the Colchester Hospital by ambulance and from there to the Q.E. II in Halifax. Doctor Coles performed surgery that day which included placement of external fixator. Her elbow was placed in cast. Her range of movement was non-weight bearing during her stay in the hospital. She was discharged from the hospital in October 2006. Ms. Leslie stated she moved to her sister’s home where she resided until December 2006. She used wheelchair with difficulty despite being unable to use her right arm. She was unable to prepare meals and required assistance for dressing and toiletry. Ms. Leslie moved with her children to mobile home close to her parents in December 2006. Her mother attended on daily basis and performed all household duties. Ms. Leslie was able to use walker and by February 2007 she could look after her own hygiene. [76] Ms. Leslie began physiotherapy while in the hospital and after discharge. She acknowledged attendance problems which she attributed to transportation and child care issues as well as how she was feeling on particular day. She joined gym in 2007 using the treadmill. She also utilized swim pass for three months in the Spring of 2007. [77] Ms. Leslie currently describes pain in her tail bone from extensive sitting. Pain in her right elbow with limited extension of her right arm. Pain in her pelvic area from long periods of standing and pain in her right hip. She has discomfort sitting for long periods of time. She walks with limp. She stated she takes Ibuprofin 600 two tablets four times day. She is also prescribed Neproxen. She is able to perform light household duties. Her mother assists with the children who have special needs. Her father handles any heavy lifting. Ms. Leslie described what she termed as worsening of her depression, accompanied by increased anxiety and panic. She said she still has night terrors and flashbacks regarding fire and smoke. She is obsessive compulsive in her behaviour and is continually locking her doors, repeatedly checking smoke-detectors, and checking on her children during the night. She has sought counselling through group therapy and flashback recovery. Her family physician placed her on permanent disability. [78] Ms. Leslie acknowledged having problems with panic and anxiety prior to the fire that prevented her from going out in public and having difficulty sleeping. She turned to food for comfort which led to weight issues. She acknowledged having used illicit drugs. She was receiving counselling from Dr. Fraser, psychiatrist, prior to the fire. She stated that she was feeling much better in the month preceding the fire. She was no longer using drugs and her mother became more involved with her and the children. The children who had been apprehended by Children’s Aid Society, were returned to her in June 2006. [79] Dr. Coles stated the pelvic external frame was removed seven weeks following surgery. The pelvis has healed although she has trendelenburg gait which causes here to “waddle from side to side”. This condition occurs when the abductor muscles are weakened as result of disuse. This condition could improve with appropriate strength exercising. The right elbow fracture extended into the joint where she has scaring due to soft tissue damage. This permanently limits her ability to fully extend her elbow. This would present difficulties tying her shoe and reaching the back of her head as well as interfering with her abilities to perform certain recreational activities in normal fashion. Dr. Coles diagnosed her hip pain as bursitis and gave her cortisone injection. He states in his report: 2. Ms. Leslie is now 3-years post injury. would anticipate her current symptoms and restrictions to be stable. At this point would not anticipate significant improvement in her elbow range of motion or function. X-rays do show some osteophyte formation and mild joint space narrowing. She may develop some arthritis in the elbow in the future. think it is unlikely that she will require any surgery for this. would anticipate her trochanteric bursitis symptoms to improve with an appropriate strengthening program. Her pelvic ring is healed. It does not involve joint structures and, as such, poses no increased risk of arthritis or degenerative changes in the future. She describes seating difficulties secondary to pain in her sacral region. would not anticipate any change in these symptoms with strengthening. This is likely to be persistent source of discomfort for her. [80] Dr. Coles was unable to opine as to whether her symptoms would constitute chronic pain. [81] Dr. Ronald Fraser is psychiatrist with the Capital District Health Authority in Halifax. He is also consulting psychiatrist in the District of Colchester and Pictou Counties. Dr. Fraser’s other current positions include Director, Extended Care Borderline Personality Disorder Clinic, McGill University Health Centre, Assistant Professor at Department of Psychiatry Facility of Medicine at both Dalhousie and McGill Universities and an examiner with the Royal College of Physicians and Surgeons of Canada (Psychiatry). Dr. Fraser stated he specializes in personality disorders. [82] Ms. Leslie was referred to Dr. Fraser in September 2005. Dr. Fraser stated his diagnosis at that time was panic disorder, features of compulsive disorder and aspects of social phobia. His primary diagnosis was borderline personality disorder. [83] Following the fire, Dr. Fraser diagnosed Posttraumatic Stress disorder (PTSD). His medical legal report dated June, 2009 states: Presently, Alissa suffers from Borderline Personality Disorder, Panic Disorder with Agoraphobia, Posttraumatic Stress Disorder and many features of Obsessive Compulsive Disorder. have requested that copies of my reports for the last year be included. Previously, you had accessed her medical chart and had psychiatric reports up to and including July 17, 2008. In terms of your inquires, the documentation provided covers some of the issues at least in terms of her ongoing psychopathology. You specifically asked what injuries were caused or materially contributed to by her having to jump from her burning building. Obviously the most direct attributable psychological injury is that she developed Posttraumatic Stress Disorder secondary to this experience. She was predisposed to developing PTSD due to the fact that she had preexisting anxiety disorders (Panic Disorder with Agoraphobia and features of OCD) as well as having vulnerable personality structure as result of her Borderline Personality Disorder. Her family physician has recently put her on permanent disability and there seems little evidence to suggest that she will ever fully recover from her physical and psychiatric disability and be able to return to work. Certainly, she lives at fairly marginal level in that she has very few leisure activities. She has great deal of difficulty taking care of herself and tends to invest disproportionately in her two sons, both of whom are quite demanding as the eldest has Attention Deficit Hyperactivity Disorder and the youngest suffers from autism. She certainly had difficulties pre-morbidly even prior to the fire but her posttraumatic stress symptoms have worsened her clinical condition. As one would expect adding another co-morbid psychiatric condition certainly does nothing to improve one’s clinical presentation. [84] Dr. Fraser stated PTSD is unique symptomology which he rarely diagnoses even though he treats population in high risk of PTSD. He stated Ms. Leslie meets the criteria for PTSD according to the Diagnostic And Statistical Manual of Mental Disorder (DMS) published by the American Psychiatric Association. DMS sets out criteria for scoring Global Assessment Function (GAF). Ms. Leslie’s GAF score was 45. The lower the score the more impairment. Conversely higher score means minimal symptoms. [85] Dr. Fraser was asked to comment on the expert report filed on behalf of the defendant that questions his diagnosis of PTSD. In Dr. Ruben’s report he diagnosed Ms. Leslie as having complex borderline personality disorder. In response, Dr. Fraser pointed to Dr. Ruben’s GAF score of 90 and stated he did not follow the accepted criteria set out in DMS. He stated Dr. Ruben used his own criteria using what is described as global assessment potential. Dr. Fraser stated GAF means actual impairment not potential. He termed Dr. Ruben’s report as bizarre. Dr. Fraser never scored patient over 70. Dr. Fraser referred to the Ruben report as diagnosis of exclusion concentrating on Ms. Leslie’s pre-existing condition. He stated that Dr. Ruben’s report engaged in an exercise of challenging Ms. Leslie’s credibility as well as his own. Dr. Fraser did not take issue with Dr. Ruben’s report that only two percent of the general population are diagnosed with PTSD. However, Dr. Fraser stated Ms. Leslie does not represent the general population. She had pre-existing diagnosis of borderline personality disorder. Even though she did not meet the criteria for PTSD before the fire, she was at heightened risk of developing PTSD which occurred following the traumatic event of the fire. [86] Under cross-examination Dr. Fraser acknowledged he had not seen Ms. Leslie since June 2009. She was not taking medications when he first saw her in 2005. Although her symptoms persisted over the year prior to the fire, prescribed medications helped with her mood and anger issues. She made positive lifestyle changes. As of February 2006 Dr. Fraser felt she was stabilized and on the road to recovery. She was being referred back to her family physician. [87] Dr. Fraser acknowledged Ms. Leslie’s attendance at his scheduling appointments dropped off after the fire. She also failed to attend regularly to other service provider appointments. She missed 11 out of 15 mental health appointments. Dr. Fraser acknowledged the symptoms she described to him in 2009 were the same as her pre-fire history, but stated other symptoms such as paranoia were new. Dr. Fraser acknowledged reporting to Ms. Leslie’s family physician in March 2009 that Ms. Leslie appeared to be psychiatrically stable and that he had no acute concerns. He reported chronic parenting difficulties with her two children one suffering from autism and the other ADHD. Dr. Fraser stated Ms. Leslie focuses on the issues regarding the children as distraction from her psychiatric issues that still exists. [88] Dr. Ruben, psychiatrist, is an assistant professor, Department of Psychiatry at Dalhousie University. He lectures on anxiety and post-traumatic stress disorder. He also accepts referrals for suspected PTSD following traumatic experiences. Although Dr. Ruben did not treat Ms. Leslie, he interviewed her and reviewed her medical history from age 18 until the year 2009. Dr. Ruben prepared an extensive 90 page report. His conclusion is that Ms. Leslie suffers from complex personality disorder consistent with her history and Dr. Fraser’s diagnosis pre-fire. He states: The GAF score should be rated, in my opinion, on the basis of an individual patient’s long-term, baseline patterns of functioning, rather than on the basis of numerical scale equally applicable to all patients. The GAF score should also be rated in terms of potential functioning, with regard to clearly established psychiatric diagnoses in given case, rather than in terms of actual functioning at given time. Based on these considerations, even though the patient’s actual functioning at present is marginal at best, would rate this patient’s current GAF score (past weeks) at approximately 90. It is not obvious to me that this patient’s current functional patterns are significantly different from what they have been in the long-term, and it is, on the other hand, clear that this patient could be functioning, in terms of any actually diagnosable psychiatric illness, at higher level than is actually the case at present. CONCLUSIONS PROGNOSIS 1. The major conclusion would emphasize in this patient’s case is that, in keeping with what her treating psychiatrist considers to be her primary diagnosis, and with what agree is her primary diagnosis, namely complex Personality Disorder at the more severe end of the Personality Disorder spectrum, this patient’s history, stemming back into her childhood, is marked by continuity and consistency, unfortunately, in markedly impaired and dysfunctional coping and behaviours, disruptive interpersonal relationships, and accompanying non-specific emotional and psychological symptoms. 3. While would not question that Alissa’s experience of the building fire of August 24 25, 2006 was markedly distressing, in fact meaningfully traumatic, for her, would strongly question whether or not this patient ever developed the full syndrome of Post-Traumatic Stress Disorder (PTSD) following this traumatic event, as PTSD does not automatically or inevitably follow trauma. If this patient ever did exhibit the full syndrome of PTDS this is not well documented at all and by the Spring of 2007 indicate that pre-fire sources of distress and impairment came once more to the fore, more or less unchanged. [89] Dr. Ruben testified that Dr. Fraser’s diagnosis of PTSD was not well documented. Even if Ms. Leslie suffered PTSD following the fire, there is no evidence the condition continued after the summer of 2007. [90] Under cross-examination Dr. Ruben acknowledged that DSM is the required method of determining GAF. However, he stated it was suspect and he was not conforming to the scale. He stated he has his own opinion as to how to determine GAF. Dr. Ruben disagreed that Ms. Leslie’s condition was improving prior to the fire stating there was no evidence in support. His view was that Dr. Fraser’s drug prescriptions were making Ms. Leslie worse. He stated Ms. Leslie was the author of her shortcomings to some extent by failing to attend mental health and physiotherapy appointments. [91] find that Ms. Leslie’s pre-existing psychological condition was exacerbated by the accident and that she subsequently developed PTSD. As treating psychiatrist, accept Dr. Fraser’s evidence that Ms. Leslie’s condition was improving prior to the fire. This was result of prescribed medications and lifestyle changes on her part. In diagnosing PTSD, Dr. Fraser’s GAF score was based on DMS criteria adopted by the American Psychiatric Association. In doing so Dr. Fraser identified symptoms that arose post-fire. On the other hand there is no evidence that Dr. Ruben’s own method of determining GAF has been tested or accepted in the field of psychiatry. [92] Having found that Ms. Leslie’s psychiatric condition worsened following the fire, the question is to what extent these symptoms affected her functioning as compared to her level of functioning before the fire. As stated in Athey v. Leonati, (supra): The defendant need not put the plaintiff in position better than his or her original position. The defendant is liable for the injuries caused, even if they are extreme but need not compensate the plaintiff for any debilitating effects of the pre-existing condition which the plaintiff would have experienced anyway. The defendant is liable for the additional damage but not the pre-existing damage. Likewise, if there is measurable risk that the pre-existing condition would have detrimentally affected the plaintiff in the future, regardless of the defendant’s negligence then this can be taken into account in reducing the overall award [citations omitted]. This is consistent with the general rule that the plaintiff must be returned to the position he would have been in, with all of its attendant risks and shortcomings, and not better position. [93] Ms. Leslie had long standing serious mental health issues prior to the fire including behavioural personality disorder, panic disorder with agraphopia and features of compulsive disorder. The evidence is that BPD is serious mental illness that results in significant impairment of person’s ability to function. Although Ms. Leslie demonstrated signs of improvement prior to the fire, her symptomology remained. Moreover the stresses relating to her two children continue to contribute to her dysfunction. [94] Ms. Leslie is currently 30 years of age. She has reached plateau in functional recovery of her physical injuries. She has permanent loss of elbow extension which restricts her abilities to extend for certain tasks such as tying her shoe and reaching behind her head. It also limits certain pre-fire recreational activities such as throwing ball and riding bicycle. She continues to experience discomfort in her right elbow. There are degenerative changes in her elbow following post-accident that may develop into arthritis in the future. Ms. Leslie will continue to experience pain and discomfort in her sacral region consistent with her injuries. Her trendelenburg gait and bursitis should improve with appropriate strength exercises which she has yet to accomplish. Her mental health issues, that worsened following the accident, affect her progress towards recovery. [95] have reviewed authorities submitted by the plaintiff, namely, Campbell v. Meinen, [1999] B.C.J. No. 1859; Guymer v. Nova Scotia (Registry of Motor Vehicles), [1984] NSJ No. 85; Jonson v. Milton (Town), [2006] O.J. 3232; Hill v. Ghaly, [2000] N.S.J. 215. have also reviewed the following authorities submitted by the defendants Holiday Frank Larch Manufacturing (1975) Ltd., sited as 1986 Carswell 297; Langthorn v. Marshall, [1998] N.S.J. No. 15; Gillis v. MacKeigan sited as 2010 Carswell NS 27. [96] I assess Ms. Leslie’s general damages in the amount of $55,000.00. Loss of Valuable Services [97] Following her release from hospital in October 2006, Ms. Leslie resided with her sister and relied upon her for care. Ms. Leslie’s children moved in with her mother for the period. Ms. Leslie moved to mobile home close to her mother in December 2006. Her mother attended on daily basis performing all household duties and carrying for the children. Ms. Leslie eventually progressed from wheelchair to walker. By February of 2007 she could manage some light housekeeping and hygiene but was still unable to stand for long periods of time. She was not able to manage laundry or sweeping. Currently she is able to do most household chores although it takes longer. She states she has good days and bad days. Her father helps with any heavier work such as garbage and snow removal. She is able to do some gardening with her parents help. Ms. Leslie believes her ability to carry out home chores is deteriorating. She required assistance from her mother following the cortisone treatment last winter. She still has difficulty with stairs. [98] Ms. Leslie’s mother confirmed taking responsibility for the children following the fire. Following her stay with her sister, Ms. Leslie moved into mobile home within walking distance of her mother. For the next six months her mother attended daily, performing all household work and caring for the children. Following that period she would assist but not on daily basis. Approximately one and half years after moving there, Ms. Leslie moved to new location with the children. Her mother stated she continued to help with the children and heavier household work. Her daughter needed assistance washing her hair due to problems with her arms. She moved in with her daughter and children for few months last winter as her arm and hip were getting worse. She stated her daughter currently is unable to bend down to take turkey from the oven. She is unable to bend over to pickup because of pain. She notices her daughter has problems standing for long periods. She still goes to her daughter’s home couple of times week to assist with cleaning and the children. She anticipates this will continue. Prior to the fire, she stated her daughter’s apartment was always spotless. [99] find Ms. Leslie will continue to require some assistance in performing household duties in the future and that her own ability to perform the duties she is now able to manage has been impaired. [100] The plaintiff seeks an award of $35,000.00 for past and future loss of valuable services. In the circumstances, find that amount to be reasonable. Loss of Future Income and Earning Capacity [101] Ms. Leslie, now 30 years of age, was unemployed at the time of the accident and was receiving social assistance benefits. She currently remains unemployed and continues receiving social assistance. Her last job with Convergys lasted from January 2005 until May 2005. Although she stated she experienced back pain from sitting on the job, (which resolved) her main reason for leaving related to problems with one of her special needs children. Ms. Leslie stated that having progressed with her personal and mental health issues in 2006, she was hoping to return to work by December 2006 after making arrangements for more appointments for her child and getting him back to school. She acknowledged her child still demands great deal of her attention. She feels she is now unable to work due to her injuries which prevent her from sitting or standing for long periods of time. She also has limitations with her arm. Ms. Leslie does not appear to be candidate to further her education as she stated she always had trouble concentrating on school work. As well she has history of hearing problems. Her previous work history included working as telemarketer for Electrolux and working at Tim Horton’s. None of these jobs were for sustained periods of time. [102] Regarding her physical injuries Dr. Coles reported that, with an appropriate seat cushion, Ms. Leslie should be able to return to sedentary work such as Call-Center where she was previously employed. In 2007, her psychiatrist, Dr. Fraser was encouraging Ms. Leslie to attempt to return to work, although he recognized her multiple psychiatric diagnosis had diminished her ability to cope with her unique family problems as well as work. In 2009, Dr. Fraser reported that her physical disabilities coupled with the psychological injuries sustained in the accident worsened her clinical condition making it unlikely she would be able to recover and return to work. Dr. Ellis, Ms. Leslie’s family physician, placed her on permanent disability. [103] Based on the evidence I find Ms. Leslie has no meaningful residual earning capacity. find prior to the accident Ms. Leslie was making progress with her mental and personal health issues and would have returned to work in capacity similar to her previous employment as telemarketer or work in the service industry. Ms. Leslie’s earnings from employment over four years prior to the accident (excluding 2002 when she was pregnant and delivered child) averaged $4,500.00 per year. Her income on each of those years was supplemented by social assistance which was her only source of income at the time of the accident. Based on the evidence before the Court, calculation of loss of future income by multiplying annual income of $4,500.00 to normal age of retirement at 65 years would total $157,500.00 less pre-existing contingencies as well as consideration of the possibility that Ms. Leslie would not work to age 65. Under the circumstance, I award the sum of $75,000.00 for loss of future income. [104] The plaintiffs’ award of damages can be summarized as follows:Mr. BrysonMs. LeslieGeneral Damages $75,000.00General Damages $55,000.00Past Loss Income(Subrogated claim) $10,433.00Loss of Valuable Services $35,000.00Past Loss Income $16,153.00Loss of Future Income $75,000.00Diminished Earning Capacity $45,000.00Loss of Valuable Services $15,000.00Total $161,586.00Total $165,000.00 [105] The plaintiffs shall recover pre-judgment interests and costs. will accept written submissions in the event the parties are unable to agree.

The two plaintiffs were forced to jump from the window of their third-floor apartment after a fire erupted in the building. The fire alarm system was not functioning and, despite being aware of previous problems with the 25-year-old system, the defendant had never maintained or inspected it; the self-closing hallway fire doors were continually in an open position; the battery-operated fire alarm in the plaintiffs' apartment was not functioning; and the plaintiffs were unaware of whether their smoke detector was wired into the building or was their responsibility. The male plaintiff suffered serious fractures to both ankles and a fractured fibula. He underwent four surgeries, was non-weight bearing for three months and was unable to run or engage in various sports. Although he had returned to work as a production worker, his condition would continue to deteriorate due to post-traumatic arthritis, most likely resulting in a future ankle fusion. The female plaintiff suffered a pelvic ring injury with bilateral pelvic and sacral fractures, a fractured elbow and a broken rib. She underwent surgery on her pelvis, was unable to look after her own hygiene for five months and developed bursitis in the hip. She continued to experience pain in the tailbone with extensive sitting and in the elbow with extension of the arm, had a permanent loss of elbow extension and walked with a limp. The worsening of her pre-existing anxiety and depression led to the diagnosis of post-traumatic stress disorder. The landlord argued that the plaintiffs' injuries had not been caused by any of its actions. Male plaintiff awarded the sum of $75,000 for general damages, $15,000 for past and future loss of valuable services and $45,000 for loss of earning capacity; female plaintiff awarded the sum of $55,000 for general damages, $35,000 for past and future loss of valuable services and $75,000 for future loss of income. Although there was no evidence that the defendant was responsible for the fire, its conduct created an unreasonable risk of harm in the event of a fire. Without evidence as to how much time the plaintiffs would have had to escape down the stairwell or how long they would have had to wait for the fire department had the smoke or fire alarms activated, the 'material contribution' test was applied to the causation issue. When the plaintiffs first awoke, the fire had already worked its way up through the attic hatch to the roof, where the flames in the eaves were visible to the plaintiffs. Smoke and fire were able to flow freely through the adjacent stairwell as a result of the fire door being left open, and the failure of the smoke detectors and fire alarms allowed the smoke and fire to progress before being detected by the plaintiffs. The female plaintiff was found to have no meaningful residual earning capacity due to the combination of her physical and psychological injuries.

6_2011nssc48.txt

P.C.J. NOVA SCOTIA COURT OF APPEAL Citation: R. v. Robinson, 2005 NSCA 65 Date: 20050412 Docket: C.A.C. 233300 Registry: Halifax Between: Her Majesty The Queen v. Wayne Douglas Robinson Respondent Judges: Roscoe, Chipman and Saunders, J.J.A. Appeal Heard: April 11, 2005, in Halifax, Nova Scotia Held: Appeal allowed, per reasons for judgment of Roscoe, J.A.; Chipman, J.A. and Saunders, J.A. concurring. Counsel: William D. Delaney, for the appellant Brad G. Sarson, for the respondent Reasons for judgment: [1] At the conclusion of the hearing the court announced that this appeal was allowed with reasons to follow. These are the reasons. [2] The Crown appeals from acquittals entered by Judge Michael Sherar of the Provincial Court on five charges relating to the possession and storage of prohibited weapons. The Information alleged that the offences occurred on or about May 30, 2003. [3] The charges were laid after police officers who were in attendance at residence as result of fire, were advised by firefighters of the presence of two sawed off shotguns in the home. [4] At the commencement of the trial, counsel advised the trial judge that the defence had made several admissions in letter to the prosecutor and which was agreed would form part of the record. That letter, dated May 12, 2004, stated in part: Further to the above noted matter, am writing to advise you of number of admissions that the Defence is prepared to make in an effort to shorten the amount of time required for trial: The Defence is prepared to admit: 1. Date, time, and place; [5] In addition, the defence admitted that on May 30, 2003, Mr. Robinson was resident of the home where the firearms were found, that he was subject to an order prohibiting possession of firearms, and that he was not the holder of an firearms licence. As well, in preliminary discussions with the trial judge, defence counsel agreed that the firearms in question were stored without secure devices, that one of them was loaded and that one of them was stolen. It was noted that essentially the issues at trial would be knowledge and possession. [6] Two police officers testified. The first, Constable Guzzwell indicated that he had been dispatched to structure fire at house on Herring Cove Road, at 3:00 a.m. on May 23, 2003. He arrived before the fire engines. He banged on the door several times, eventually rousing an occupant and advising him to leave the house. After learning that there was dog still in the house the officer went back in with the resident to find the dog. while later he was told by member of the fire department that gun had been observed in bedroom of the house. Constable Guzzwell went back into the house with two other officers and found and removed two sawed off shotguns. [7] The second officer, Constable Dumas testified that he attended at the scene of the fire on May 23, 2003, entered the residence accompanied by Constable Guzzwell, located the firearms and photographed the weapons and two pieces of personal identification found in the bedroom, bearing the name of the accused. [8] After the close of the case for the Crown, defence counsel brought a motion for directed verdict on the basis that there was no evidence of one of the elements of the offence, that is, the date of the offence as alleged in the Information. In response, Crown counsel applied to amend the Information with respect to the date of the offence, to conform with the evidence. The trial judge, without specifically ruling on the motion to amend, granted the defence motion and entered acquittals on all charges. In discussions with counsel the trial judge remarked: THE COURT Well, if it wasn’t for the letter of May the 12th, think that you would have been out of luck, [Crown counsel]. I’m not so sure that you’re still not out of luck. But the first comment in the letter of May 12th, 2004 which also reviewed during the trial was that the Defence is prepared to admit the following date, time and place, presumably with regards to jurisdiction in the event. There is no argument made that the Crown must prove their case beyond reasonable doubt on each and every one of the elements of the offence, time being one of them. The time is admitted. There’s no argument that the accused is put to any surprise by the events which unfolded. [9] The brief decision is as follows: With some hesitation, am going to grant the Defence motion. There has not been proof of the elements of the offences alluded to in the Information before the Court sworn the 31st of May, 2003. [comments re exhibits] You are acquitted sir. [10] On appeal, the Crown takes the position that the trial judge erred in allowing the directed verdict motion even in the absence of an amendment and that the trial judge erred in failing to grant the motion to amend. The respondent submits that the trial judge granted the motion for directed verdict for insufficiency of evidence unrelated to the discrepancy in the date. It is conceded by the respondent that if the trial judge granted the motion for directed verdict because the date of the offence was not proven, there was an error of law. The respondent suggests that because the trial judge used the word “elements” that the date was not the only insufficiency. [11] The appellant relies on section 601(4.1) (which pursuant to s. 572 also applies to trials of indictable matters without jury),: 601 (4.1) variance between the indictment or count therein and the evidence taken is not material with respect to (a) the time when the offence is alleged to have been committed, if it is proved that the indictment was preferred within the prescribed period of limitation, if any; or ... [12] In R. v. B.(G.). 1990 CanLII 7308 (SCC), [1990] S.C.R. 30, Justice Wilson for the Court indicated that s.529(4.1), the predecessor of s. 601(4.1), was similar to the common law rule that the date of the offence need not be proven unless it is an essential element of the offence. At 38, she stated: 38 From the foregoing, it is clear that it is of no consequence if the date specified in the information differs from that arising from the evidence unless the time of the offence is critical and the accused may be misled by the variance and therefore prejudiced in his or her defence. It is also clear from Dossi and other authorities that the date of the offence need not be proven in order for conviction to result unless time is an essential element of the offence. Accordingly, while it is trite to say that the Crown must prove every element of the offence in order to obtain conviction, it is, believe, more accurate to say that the Crown must prove all the essential elements. The Crown need not prove elements which are, at most, incidental to the offence. [13] Justice Wilson provided several examples of cases where the time of the offence was an essential element, such as, on charge of operating plane or an automobile without valid licence where the defence is that valid licence had been in existence at the time. Obviously, the date of the offence has to be proven to fall outside the time when licence was effective. As well, where an accused defends charge by providing evidence of an alibi for the date or time period alleged, the date of the offence is an essential element. [14] Given the circumstances in which the motion for directed verdict was made, including the argument advanced by defence counsel, it is fairly obvious that the trial judge granted the motion because the Crown had failed to prove that the date of possession of the weapons was May 30, 2003 as alleged in the Information. That was an error of law. The date of the offences was not an essential element. [15] Counsel for the respondent contends however that the trial judge granted the motion for directed verdict because the evidence presented by the Crown was not sufficient to meet the required test, that is, whether there was any evidence upon which reasonable jury, properly instructed could return verdict of guilty. (see: The United States of America v. Sheppard (1976), 1976 CanLII (SCC), 30 C.C.C. (2d) 424 (S.C.C.)) [16] If that is correct interpretation of the decision, then the reasons for granting the motion are so inadequate that they do not meet the test for sufficiency of reasons because they do not provide any indication of why there was insufficient evidence. The test for sufficiency of reasons, is, as set out in R. v. Braich, 2002 SCC 27 (CanLII), [2002] S.C.R. 903, at para. [31] The test, in other words, is whether the reasons adequately perform the function for which they are required, namely to allow the appeal court to review the correctness of the trial decision. [17] If the directed verdict was not founded in the discrepancy with the date, then the appeal would have to be allowed on the basis that the trial judge erred in law by giving insufficient reasons which prejudiced the Crown’s right of appeal. [18] Although the trial judge did not actually rule on the application by the Crown to amend the Information, if the directed verdict was granted on the basis that it was too late for an amendment, that too was an error in law. Section 601(3) of the Criminal Code provides: (3) Subject to this section, court shall, at any stage of the proceedings, amend the indictment or count therein as may be necessary where it appears ... (b) that the indictment or count thereof (i) fails to state or states defectively anything that is requisite to constitute the offence, ... (iii) is in any way defective in substance, and the matters to be alleged in the proposed amendment are disclosed by the evidence taken on the preliminary inquiry or on the trial; or ... [19] Section 601(4) lists the factors that should be taken into consideration on an amendment application, which include whether the accused has been misled or prejudiced and whether the amendment would cause an injustice. Here there was no suggestion that the amendment of the date would mislead or cause prejudice or injustice to the accused. There was no indication that the date of the offences was relevant to the defence. [20] In summary, the trial judge erred by granting the motion for directed verdict based on the discrepancy between the date of the offences alleged in the Information and the evidence presented at trial because the date of the offences was not an essential element of the offences. Alternatively, if the motion was granted on the basis of insufficiency of the evidence, the reasons are inadequate. Furthermore, although it was not necessary to amend the Information because the date was not an essential element, if the reason for the directed verdict was that it was too late to amend, that was also reversible error of law. [21] The appeal is accordingly allowed, the acquittals are set aside and a new trial is ordered. Roscoe, J.A. Concurred in: Chipman, J.A. Saunders, J.A.

Following the close of the Crown's case on a trial of several weapons related offences, the defence moved for a directed verdict on the basis that there was no evidence that the offences occurred on the date alleged in the Information. The Crown sought to amend the Information to change the date of the offences. Without ruling on the motion to amend, the trial judge granted the motion for a directed verdict. The Crown appealed. Appeal allowed; acquittals set aside; new trial ordered. The directed verdict should not have been granted as, in this case, the date of the offences was not an essential element of the offences. If the directed verdict was not based on the discrepancy with the date, than the appeal would have to be allowed on the basis that the trial judge gave insufficient reasons which prejudiced the Crown's right of appeal.

6_2005nsca65.txt

SCC/jmj 2003 SKQB 248 Q.B.C.A. A.D. 2002 No. 13 J.C.S. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF SASKATOON BETWEEN: SIDNEY K. KULRICH and HER MAJESTY THE QUEEN RESPONDENT Daryl E. Labach for the appellant Perry G. Polishchuk for the respondent JUDGMENT KOCH J. May 28, 2003 [1] This is an appeal from conviction on February 6, 2002 by judge of the Provincial Court sitting at Watrous, Saskatchewan and from the sentence imposed on March 11, 2002 on the charge: That Sidney K. Kulrich on or about the 27th day of April 2000 at Colonsay did steal an electricity generator, the property of Sask Power Corporation of value not exceeding five thousand dollars, contrary to Section 334(b) of the Criminal Code. [2] Although not referred to in the notice of appeal, counsel argued on the appeal the question of the jurisdiction of the learned Provincial Court judge to proceed with the trial. On charge of theft where the value of what is alleged to have been stolen does not exceed $5,000, the Crown may in accordance with s. 334 of the Code proceed on indictment or by way of summary conviction. Should the Crown elect to proceed by indictment, the Provincial Court has absolute jurisdiction pursuant to s. 553 of the Code. The substantive distinction in the proceedings is therefore limited to the range of sentencing upon conviction. On what appears to have been the first appearance of the appellant in the Provincial Court on October 15, 2001, the Court was advised that the Crown was proceeding by summary conviction. On subsequent appearance, the appellant entered plea of not guilty and the case was set over for trial. [3] The information was sworn September 27, 2001 alleging the offence to have occurred on April 27, 2000. In these circumstances the time limitation on summary conviction proceedings imposed by s. 786(2) becomes relevant. That subsection provides as follows: 786(2) No proceedings shall be instituted more than six months after the time when the subject-matter of the proceedings arose, unless the prosecutor and the defendant so agree. [4] was urged by counsel for the appellant that in the absence of evidence to the contrary, it should be inferred that the accused acquiesced in or implicitly consented to the Crown proceeding by way of summary conviction. Crown counsel does not agree with that position. However both parties prefer that the appeal from the learned Provincial Court judge be heard in this Court now, or alternatively in the Court of Appeal, based on the present trial record, in preference to having the proceedings in the Provincial Court declared null. [5] Section 786(2) contemplates in my view an explicit agreement rather than some form of implied consent arising from the failure of the appellant or his counsel to address the issue. note various precedent cases in which proceedings in circumstances such as the present have been held to be null. R. v. Phelps (1993), 1993 CanLII 14657 (ON CA), 79 C.C.C. (3d) 550 (Ont. C.A.); R. v. Kalkhorany (1994), 1994 CanLII 687 (ON CA), 17 O.R. (3d) 783 (C.A.); Re Parkin and the Queen (1986), 1986 CanLII 4640 (ON CA), 28 C.C.C. (3d) 252 (Ont. C.A.). In such circumstances the procedural irregularity is not subject to the provisions of s. 822(7) pertaining to defect to which the accused has not objected. [6] Both sides wish the Court to adjudicate on the merits of the conviction based on grounds applicable in summary conviction appeal. To facilitate that, counsel expressly agreed at the hearing, pursuant to s. 786(2), that the case at trial proceeded by way of summary conviction by agreement. For the purposes of the appeal they invite me to treat the agreement as having been in place when the trial commenced. Accordingly, have determined that the proceedings before the learned trial judge are not in violation of s. 786(2) and that the learned trial judge had jurisdiction to enter the conviction and sentence. Therefore, this Court has jurisdiction to entertain the appeal. [7]            The appellant contends that the appeal should be allowed and the conviction set aside on the following grounds: 1.         the verdict is unreasonable and not supported by the evidence; 2.         the learned trial judge failed to properly apply the doctrine of recent possession; 3.         the learned trial judge did not provide adequate reasons for his decision to convict the appellant. [8] As one of the grounds of the appeal is that the verdict is unreasonable and not supported by the evidence, it is necessary to briefly renew the evidence. It is not necessary to include all of the details. 1. Honda portable electricity generator owned by SaskPower was found to be missing from SaskPower storage shed at Colonsay, Saskatchewan about the end of April 2000. On August 23, 2001, the same generator, identified by its serial number, was recovered from fishing camp at Robert’s Lake in Northern Saskatchewan. 2. The appellant, as an employee of SaskPower, had access to the storage shed. He was one of the six owners of the fishing camp. Two of the other owners were also SaskPower employees. 3. All SaskPower storage sheds at the time could be accessed by single key, so all SaskPower operating employees would have been able to enter the shed at Colonsay. The appellant however was somewhat more closely connected. The appellant was one of two workers at Watrous. There was another crew of two workers at Colonsay. To some extent they shared work. Both crews were supervised by district operator Gordon Buckingham who worked out of Colonsay. 4. careful examination of the premises yielded no evidence of forced entry into the shed. Notably it was on the same site as the Colonsay R.C.M.P. detachment. Also notable is that there were various valuable and portable items such as chainsaws in the shed, but the only thing missing other than the generator was an electrical cord especially made to use with the generator. similar cord was missing from the Watrous storage shed at about the same time but later it was found to be back in its place. 5. In earlier times there was lower capacity generator at the fishing camp, but in about 1998, water system was installed and larger generator was required. Sometime in 1999 the replacement generator failed and the small generator was back in use. Therefore, by early 2000 the camp owners wanted viable higher capacity generator for the coming season. 6. It happened that SaskPower had been purchasing generators of that kind late in 1999 in anticipation of potential emergency needs arising out of the Y2K concern just ahead. SaskPower paid $2,486.00 for the generator in question. 7. About the end of March 2000, the appellant mentioned to others of the camp owners that he had found suitable generator which had come from the Winnipeg flood which he could buy for $800.00. Thereafter he advised them of such transaction and received cheque from the account of the camp owners for $800.00 made out to cash. 8. About the end of May one of the other owners picked up generator at the garage at the appellant’s residence at Watrous. It was in wooden crate that appeared to have been made especially for the generator and there was some kind of paper tag on the crate. Some owners including the appellant took that generator to Robert’s Lake. When it was put into service the generator did not work properly. It was put back in the crate and the appellant took it back to Watrous for repairs. 9. There is conflicting evidence as to whether one person could lift the generator onto truck without assistance or whether it was too heavy and awkward. This is not in my view critical issue. 10. On September 10 and 11, 2001, person identifying himself as Sid Kulrich telephoned the R.C.M.P. at Southend near Robert’s Lake to report the theft of generator from the fishing camp. The caller said he could not provide the serial number due to computer problem, that he had purchased the generator in January 2000 either in Saskatoon or in Melfort, and that its value was $2,700.00. [9] Counsel for the appellant contends that the conviction was not supported by the evidence and could not be supported without application of the doctrine of recent possession. He contends that the doctrine of recent possession should not enter into the Court’s consideration because of lack of proof that the generator that was in the appellant’s garage in Watrous in June 2000 was the same generator that was seized at Robert’s Lake more than year later. [10] Crown counsel concedes that to sustain the conviction, the doctrine of recent possession must be relied upon. He contends however that the evidence that the generator at the appellant’s garage in Watrous was the same one that was taken from the SaskPower storage shed and recovered from the fishing camp at Robert’s Lake is ample if not indeed overwhelming. [11] The learned trial judge found as fact, as he was entitled to do, that the generator that was at the garage at the accused’s residence was the one that was stolen from the shed at Colonsay. However that funding does not stand on its own. It is part of strong circumstantial case against the appellant. [12] As understand the law, the unexplained recent possession of stolen goods standing alone will permit but not necessarily require the inference that the possessor was the person who stole the goods. If recent possession is the only evidence connecting the accused with the theft, then elements of recent possession must be strictly proven. However, if recent possession is not relied upon as the sole evidence connecting the accused with the crime, then possession should be considered as circumstantial evidence and weighed accordingly. See R. v. Kowlyk, 1988 CanLII 50 (SCC), [1988] [13] In rendering his decision, the learned trial judge summarized the facts in considerable detail and concluded his decision with the final paragraph as follows [at p. 474]: Taking all the evidence into account, find that the generator that the partners saw in May at the home of the accused in Watrous, Saskatchewan, was the generator that had earlier been stolen in Colonsay, Saskatchewan. There’s therefore an inference of guilt that the accused, in fact, stole the generator. Taking into account all of the evidence, the only reasonable inference that can draw is that the stolen that the accused stole the generator. am therefore compelled to conclude and am satisfied beyond any reasonable doubt that the accused committed the offence alleged and find him guilty as charged. [14]                       There is nothing in the decision that convinces me that the learned trial judge in any way misconstrued or misapplied the doctrine of recent possession. [15]                       Neither is there in my view any indication that the learned trial judge in weighing the evidence committed any palpable and manifest or overriding error. [16] In this regard should note that if understand correctly, counsel for the appellant argues that the appellant bought generator from someone for $800.00. There is no evidence of that except the general unsworn statements of the appellant to others of the camp owners. His statements were entirely self-serving and quite correctly accorded no weight by the learned trial judge. [17] Counsel for the appellant contends that the learned trial judge failed to provide adequate reasons for convicting the appellant. He relies on the case of R. v. Sheppard, 2002 SCC 26 (CanLII), [2002] S.C.R. 869, decision of the Court delivered by Binnie J. In that case the Supreme Court provides detailed guidelines for the triers of fact in criminal cases. The Court imposes on trial judges an obligation to provide reasoned judgments comprehensible to the accused, counsel, the appellate courts and the public. In the Sheppard case the trial judge’s reasons were limited to the following: Having 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. [18] In the present case, the learned trial judge before stating his conclusion quoted above commented on the facts and arguments in detail in dissertation which occupied approximately six pages of the trial transcript. In the Sheppard case, Binnie J. at para. 25 states: If deficiencies in the reasons do not, in particular case, foreclose meaningful appellate review, but allow for its full exercise, the deficiency will not justify intervention under s. 686 of the Criminal Code. That is exactly the situation in the present case. [19]                 The appeal from conviction is dismissed. [20] The appellant also appeals the sentence which was nine-month suspended sentence with victim surcharge of $100.00. He requests that this sentence be set aside and conditional or absolute discharge granted. [21] Unfortunately, there is no transcript of the sentencing proceedings except for couple of lines and without being able to examine the sentencing judge’s reasons it is as contended on behalf of the appellant impossible to determine whether the sentencing judge applied correct principles or whether the sentence is excessive or otherwise unreasonable or demonstrably unfit. Counsel for the appellant submits that the sentence should be vacated and sentence imposed in this Court in lieu of it. It appears that in these unique circumstances, s. 687 of the Criminal Code permits that to be done. [22] At the hearing of the appeal, counsel indicated that an effort would be made to locate tape recording of the sentencing proceedings and arrange for it to be transcribed. If that has occurred, invite counsel to arrange for the Court to be reconvened for oral argument on the sentence appeal. If the transcript is not available, invite counsel to arrange for the Court to be reconvened to address submissions as to the applicability of s. 687 and to argue whether it is appropriate to vacate the sentence and embark on the sentencing process afresh.

An appeal from conviction and sentence for theft of an electricity generator valued at under $5,000 contrary to Criminal Code s.334(b). On the first appearance in October, 2001, the Crown advised it would proceed by summary conviction. The appellant pled not guilty. Defence argued that, in the absence of evidence to the contrary, it should be inferred that the accused acquiesced or implicitly consented to proceeding by way of summary conviction. Counsel agreed pursuant to s.786(2) to proceed by way of summary conviction and invited the court to treat the agreement as having been in place when the trial began. Both preferred the appeal to be heard in this Court or in the Court of Appeal. The appellant sought to have the conviction set aside on the grounds the verdict was unreasonable and not supported by the evidence; the trial judge failed to properly apply the doctrine of recent possession and did not provide adequate reasons for his decision. HELD: The conviction appeal was dismissed. 1)This Court had jurisdiction to entertain the appeal. The Provincial Court judge had jurisdiction as the trial proceedings did not violate s.786(2). 2)The trial judge did not misconstrue nor misapplied the doctrine of recent possession. The unexplained recent possession of stolen goods standing alone will permit, but not necessarily require, an inference that the possessor was the person who stole the goods. The elements of recent possession must be strictly proven if possession is the only evidence connecting the accused with the theft. Otherwise possession should be considered circumstantial evidence and weighed accordingly. There was no palpable and manifest or overriding error made by the trial judge in weighing the evidence. 3)Criminal Code s.687 appears to permit this Court to set aside the 9 month suspended sentence and to grant a conditional or absolute discharge. However, there was no transcript of the sentencing proceedings except for a few lines. If the transcript is not available, this Court may be reconvened to address the applicability of s.687 and whether it would be appropriate to vacate the sentence and embark on the sentencing process afresh.

2003skqb248.txt

J. SFSNCFSA13037 IN THE SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: CAS v. N.D. and R.M., 2003 NSSF 019 BETWEEN: THE CHILDREN’S AID SOCIETY OF CAPE BRETON-VICTORIA and N.D. and R.M. RESPONDENTS Revised Decision: The text of the original decision has been revised to remove personal identifying information of the parties on September 25, 2008. HEARD: Before the Honourable Justice M. Clare MacLellan, at Sydney, Nova Scotia DATES HEARD: HEARINGS/APPLICATIONS: November 2, 2001, November 27, 2001, January 8, 2002, January 28, 2002, April 30, 2002, May 29, 2002, June 11, 2002, June 18, 2002, October 7, 2002, December 9, 2002, December 13, 2002 PERMANENT CARE HEARING: January 6, 2003, January 10, 2003, January 23, 2003, January 24, 2003, February 3, 2003, February 5, 2003 and February 13, 2003 DECISION: February 20, 2003 (oral decision) May 27, 2003 (written decision) COUNSEL: Robert Crosby, Q.C., Counsel for the Applicant David Campbell, Q.C., Counsel for the Respondent N.D. David Raniseth, Counsel for the Respondent R.M. Doug MacKinlay, Counsel for Mr. L. and M.L. M.C. MacLellan, J. [1] The matter before the Court is the Permanent Care Application for four (4) children. The first child is S.M., born [in 1997] - she is 5 ½; the second child is D.D., born [in 1999] - she is 4; the third child is O.D., born [in 2000] - she is 3; and the fourth child is A.D., born [in 2001] - he is 2 (at the time of written decision). [2] As indicated, the children range from approximately 5 ½ to about 2 years of age and they are the offspring of three (3) or four (4) fathers. All three (3) children, except A.D. have, according to the Applicant’s evidence, displayed some form of special needs or developmental delay. These needs are being addressed in their current placements. [3] The three (3) younger children have been in temporary care; S.M., has been in supervised care of her paternal grandparents. The children have been out of their mother’s care since December, 2001. A.D. was approximately nine (9) months old at the time of apprehension. [4] The chronology of Agency involvement with N.D. and R.M. is as follows: [5] The parents had informal involvement with the Agency since approximately March, 1996. The referral dealt with problems of money, food shortage, and housing. [6] There was one (1) child, K.D., born to N.D. and R.M., who tragically died at fifteen (15) months when she contacted bacterial infection. Due to her death, the police made referral to Children’s Aid when N.D. was expecting her second child, S.M.. There is no more information on this referral. It appeared to be based on caution, given the actual cause of K.D.’s death was never determined. [7] The child, S.M., lived with her biological father, R.M., and her grandparents (the L.s), shortly after her birth and custody order was granted to the biological father, R.M.. [8] S.M. lived with R.M. and the L.s, or with the L.s alone, for approximately one-half of her short lifetime. This was back-and-forth again arrangement from birth. believe she was with the L.’s for approximately eleven (11) months, after which she was with them on-and-off for time, and finally from July, 2001 to the present. S.M. lived with her mother and father on-and-off during their various periods of cohabitation. They were couple for somewhere between four (4) and six (6) years. The parents describe their personal relationship as being one of on-and-off again. The custody order to R.M. was not altered until Supervision Order was granted by this Court last year. [9] N.D. gave birth to third child, D.D., [in 2001]. The child was premature. The Agency received referral in relation to D.D. seeking assistance with items needed to care for newborn infant. The referral also alleged that N.D. had been harassed, shortly after D.D.’s birth, by an ex-partner while still in hospital. [10] On March 1, 1999, N.D. agreed to work with Family Skills Worker and Parent Aid. R.M. was part of the plan at that time. The Parent Aid and N.D. dealt with several matters from basic feeding, to late hours outside the home by the mother and father, to the need to be receptive in learning to parent. [11] N.D. gave birth to another baby girl, O.D., [in 2000]. D.D. was approximately thirteen (13) months old at the time that O.D. was born. Shortly after O.D. was born, N.D. returned to work. She was working back-shift hours. This complicated her involvement with the Children’s Aid Parent Aid because N.D. was often tired when the Parent Aid appeared for training sessions. [12] In June, 2000, the Family Skills Worker reported that all seemed well with N.D. and the babies. In August, 2000, the police reported that N.D. had been badly assaulted by her current boyfriend. His name was T.I.. N.D. confirmed the assault took place. At the time of the assault, R.M. was babysitting. He recalled that D.D. was present and saw T.I. grab her mother by the throat. [13] On December 19, 2000, R.M. advised the Applicant that N.D. was neglecting the children. He and S.M. were living with N.D. at the time he made this complaint. As of December 20, 2000, the Parent Aid services ended. Family Skills continued to visit the residence approximately once week. At that time, R.M., N.D. and the three (3) baby girls appeared to be doing well. [14] In January, 2001, R.M. made another referral to the Applicant against N.D.. Children’s Aid decided, in case conference, that risk to this family would be increased if R.M. was no longer living in the home. On January 20th, according to the Protection Application and Affidavit, C.B. (who lived with N.D. and R.M.) complained of N.D.’s treatment of the children. In close proximity to that time, Mrs. L. called to make similar complaint, as did R.M.. All complaints related to slap one of the girls was alleged to have received from N.D.. [15] On January 20, 2001, R.M. again complained to the Children’s Aid Society that N.D. was not taking O.D. to the doctor when she should (O.D. had diaper rash). On January 16, 2001, the Children’s Aid provided transport and money to secure O.D’s diaper rash lotion, as well as product to deal with the children’s infestation of head lice. [16] On February 7, 2001, R.M. and N.D. separated again. N.D. lacked some essential provisions for the children. On February 16th and 19th there were similar complaints that N.D. was short of basic provisions and heating oil. [17] On February 19, 2001, Dr. Myatt advised the Agency verbally that he had concerns. Dr. Myatt’s complaints, at paragraph (49) of the Protection Hearing Affidavit were: (a) the Respondent’s children are not always bundled up properly; (b) the Respondent, N.D., misses appointments regularly; (c) she blames everyone but herself; (d) the child’s rash was due to the child not being looked after properly, that the skin was very dry and there had been some cold exposure; (e) he had prescribed some antifungal and anti-inflammatory and that the rash was fifty percent better than the last time he saw it; (f) he was concerned about the conditions in N.D.’s home and asked her to contact Community Services in regards to oil. [18] On March 1, 2001, R.M. advised that the children O.D. and D.D. were poorly clothed for March weather and both were still infested with head lice. [19] On March 8, 2001 the Children’s Aid received phone call from Dr. Myatt expressing concern re N.D’s parenting practices. The doctor wrote two (2) letters to the Children’s Aid Society on this problem (attached to the Protection Application). The first letter dated March 5, 2001 (although the date is obscured), is in relation to O.D., who was not yet one (1) at the time. have grave concerns for this child. The child did not show up for appointment. We had suspicious concerns lately and have been following her closely. was wondering if VON could go into the home and will make an appointment with Dr. Abenheimer. [20] His next letter dated March 6, 2001, states as follows: saw O.D. today and she continues with the rash. find out from N.D. today that her temperature in her house is from 10 to 15 degrees! Clearly this is unacceptable and appreciate consideration for provision for more financial assistance for oil. It may be more appropriate that she move into an apartment. have referral in to Dr. Abenheimer to also assess O.(D.). Because of the continued rash, she has been unable to receive her booster needle. ve also advised N.(D.) to keep the temperature in the house at 20 degrees. appreciate your assistance. [21] On March 13th, 22nd, and April 5, 2001, either N.D. or her mother called the Children’s Aid for assistance in relation to securing diapers and filling prescriptions. [In 2001], N.D. gave birth to her son, A.D.. The Children’s Aid assisted obtaining the basic provisions for the new baby. Affidavit material alleges hospital staff were concerned that N.D. wished to call her son “L.”. At hearing, N.D. indicated she was joking with friends and did not have discussion with nurses re calling A.D. “L.”; but rather, the nurses overheard this discussion she had with her friends. [22] On April 30, 2001, N.D. and R.M. reunited. The Applicant’s first visit was on May 11, 2001, and was positive. The next visit of May 20, 2001, was reasonably positive. On June 20, 2001, N.D. advised the Applicant she did not need any help in the form of Parent Aid or Family Skills Worker. [23] On July 17, 2001, the workers were advised by R.M. that the children again had head lice. R.M. advised he was the principle caregiver. N.D. confirmed the children had head lice infestation from time to time. She maintained the reasons were beyond her control given that she treated the children, but other people in the home were not treating their head lice, and the cycle of infestation continued. [24] The protection affidavit chronicles that in September, 2001, workers went to N.D.’s home and heard some babysitter allegedly yelling and cursing at the children. Neither parent was in attendance at that time. No evidence was tendered in support of the allegation. [25] On October 19, 2001, R.M. advised Children’s Aid that N.D. was neglectful and using corporal punishment as method of disciplining the children. R.M., in his evidence, does recall making this referral but denies saying there was an assault on the children. R.M. indicated to Children’s Aid in October 2001 that he planned to move out of the residence. By this time, S.M. was already living with her grandparents, the L.s. [26] The Children’s Aid began Section 32 Children and Family Services Act Supervision Application on October 21, 2001. This application chronicled the history as set forth above and concluded in paragraph 82: THAT on October 22, 2001, Risk Management Conference was convened; present were Director, Mairi MacLean, Family Skills Worker, Annette Murphy, worker Nora MacDonald and this worker (which would be Lisa Robinson); the case history was reviewed and the following decisions were made: protection application would be made to the Court under Section 32 of the Children’s Family Services Act; (N.)D. will participate in parental capacity assessment and psychological assessment as soon as one can be arranged; (N.)D. will comply with all recommendations of the Children’s Aid Society; (N.)D. will attend anger management counseling; (N.)D. will cooperate with the Agency Family Support Worker; (N.)D. will agree to meet with Agency Protection Worker and will permit this worker to meet with children; (N.)D. will attend to all medical appointments for the children and any other necessary appointments. [27] The first part of the Section 39 hearing was held on November 2, 2001, and proceeded on affidavit evidence. The Court added clause prohibiting any form of physical punishment to the children. Part II of the Section 39 hearing was completed on November 27, 2001. Supervision Order was issued and remedial measures for N.D. were outlined. [28] Prior to the Protection Hearing, five (5) day Review of the Section 39 Order was applied for by the Agency seeking apprehension of the three (3) children and the continued placement of S.M. with the paternal grandparents, the L.s. The application was granted based on affidavit evidence of Agency workers Carrie Evely and Jessica LeBrun. Extensive materials were filed by the Agency for the Review Hearing. Research of the file indicates that the affidavits were never tendered, but were filed and discussed in Court. Carriage of the file was transferred to Paul Moore. [29] After that point, due to illnesses, snowstorms and competing court dockets, the Protection Hearing was not held until January 28, 2002 and the Protection finding was made in relation to N.D. only. The Protection Hearing proceeded by consent pursuant to Section 40(3). The transcription in relation to that hearing reads as follows: MR. CROSBY: Yes, My Lady apologize for the late start, but counsel and myself...well Mr. Raniseth and myself had matters before Justice Wilson but in the interim we entered into discussions with...among all three counsel and can indicate that there is consensus that the finding be entered under 22(2)(b) pursuant to Section 40(3) and that finding is made with respect to the Respondent, N.D., and on the basis of the risk...the substantial risk to the children caused by the failure of the parent to supervise adequately. We’re also in consensus position that the matter be adjourned for Disposition Hearing, that during the adjourned period of time, the three children, D.D., O.D. and A.D. will continue to remain in the Temporary Care of the Applicant with access to both Respondents. The Respondent, N.D., has twice weekly access with the children and (R.)M. has once weekly, that also acts as sibling access for S.M.. Given the children’s schedule it’s difficult to increase the number of access visits, but we will be increasing the duration of the access visits. The Order will also provide that the child S.M. remain in the supervised care of the Respondent, R.M.. The Order will also provide that both Respondents will cooperate with the completion of Psychological and Parental Capacity Assessment and that general costing clause be included in the event that either Respondent identifies any service in the interim that they may feel may be benefit and they wish to access. The other thing I’ll put on the record is that there will also be consideration given to moving the supervised access visits out of the Agency Office and into more comfortable circumstance in the Respondents home. THE COURT: Mr. Campbell? MR. CAMPBELL: Yes, My Lady those terms have been gone over with (N.)D. and she’s aware of them all and she informs me that she prepared to consent to them. THE COURT: Okay, you may be seated. (N.)D. you heard what Mr. Campbell said? (N.)D.: Yes did, Your Honor. THE COURT: And do you agree with what he said on your behalf? (N.)D.: It’s not...it wasn’t exactly worded the same as what Mr. Campbell said to me, but guess it’s pretty much the same, so yeah. THE COURT: That your children are in need of protective services and that the three will remain in the care of the Agency and the older girl...or the younger...the youngest will remain in the supervised care of (R.)M.? (N.)D.: Actually it’s the oldest, Your Honor. THE COURT: read it backwards, sorry. (N.)D.: That’s alright. THE COURT: The oldest will remain with (R.)M. and there will be an assessment performed and access will be arranged and the access will be moved to more comfortable location. (.N)D.: Yes, Your Honor. THE COURT: That’s pretty well what Mr. ... if change(d) around Mr. Campbell words that’s basically it. So do you agree with that? (.N)D.: Unfortunately yes, Your Honor. THE COURT: At this time, okay. Alright and (R.)M.....Mr. Raniseth, the finding is not in relation to him, but he’s in agreement with the placement? MR. RANISETH: Ah, yes. I’ve had discussions with Mr. Crosby about the access as he’s already indicated and he is agreeing to be part of the Parental Capacity Psychological Assessment as well. THE COURT: Okay, that fine then. Anything further? MR. CROSBY: No, My Lady. THE COURT: Alright, Mr. Campbell if there’s any remedial measures that your client feels she needs to help her on the way, that the Agency is not giving her forthwith and they’re reasonable, just bring the matter back and will re-examine it. Okay, thank you. MR. CROSBY: Thank you, My Lady. THE COURT: So we will set for Disposition and make consensual finding against...in relation to (N.)D. alone on the failure to supervise ground only, in relation to the four children. The rest of the relief will be as specified by Mr. Crosby as I’m satisfied in the representations made by the parties and the affidavit material. [30] On April 30, 2002, the assessment ordered was not completed and so all parties agreed the matter would be adjourned to May 3, 2002 for Disposition to allow the Assessment to be completed. [31] The Court heard from Mr. Bryson on May 31, 2002, who conducted the assessment on all the parties except S.M.. Mr. Bryson’s qualifications were questioned by Mr. Campbell. After reviewing his experience and training, he was accepted as witness capable of giving opinion evidence in the area of parental capacity. It was unclear why S.M. was not part of that assessment. There are comments made by Mr. Bryson in the report that relate to S.M’s interaction with her mother. [32] have reviewed this report many times and have some comments to make. It is unclear when one looks under the heading, “N.D.’s mental status”, why it was necessary for the assessor to chronicle whether or not she had tattoos and the nature of the tattoos. am at loss to see how that would have an effect on any determination that have to make, or that he had to make. [33] In reviewing N.D.’s medical history, Mr. Bryson noted that as teenager she was diagnosed as having Conduct Disorder and Oppositional Defiant Disorder. He goes through her history of [...] [group home]. He noted her anger in general and in particular with the Children’s Aid, who had monitored her since her first child, K.D., passed away. He indicated that N.D. held out to him that she basically did not have too many parenting problems with her three (3) children and that they were generally satisfactory, but that her oldest child, S.M., exhibited challenging behaviors. Much of the Assessment contains derogatory, saucy or rude quotes that Mr. Bryson attributed to N.D.. [34] In relation to the objective testing overall, N.D. performed well on the tests the Child Abuse Test and the Child Stress and Substantive Abuse Test. The results of the MCMI-3, were acceptable as well. Mr. Bryson concludes: N.D.’s personality style are indicative of individuals who are behaviorally rigid and constricted, conscientious, polite, organized, meticulous, punctual, respectful, often perfectionistic, formal, prudent, over-conforming, cooperative, compliant with rules, serious, moralistic, self-righteous and self-disciplined, efficient, and relatively inflexible. They place high demands on themselves. They are emotionally controlled. They are socially conforming and prone toward repetitive life-style, as result of engaging in series of patterned behaviors and rules that must be followed. They have fears of social disapproval and are model of propriety and restraint. They show excessive respect for authority but may treat subordinates in an autocratic manner. They operate from sense of duty that compels them not to let others down, thus risking the condemnation of authority figures. They thus show an anxious conformity. They strive to avoid criticism but expect it because of what they perceive to be their personal shortcomings. They fear making mistakes because of expected disapproval. Their behavior stems from conflict between felt hostility which they wish to express and fear of social disapproval should they expose this underlying oppositional resentment. This circumstance forces them to become over-conforming, thus placing on themselves high demands that serve to control this intense anger, which occasionally breaks through into their behavior. [35] As outlined later, these character traits or personality traits as put forward in the objective testing, do not conform with Mr. Bryson’s objective observation of N.D.. Overall, as was stressed by her lawyer, N.D.’s objective tests, excluding Mr. Bryson’s observations, which are also objective, show her to have average, or at least acceptable, character traits. Mr. Bryson believes, however, due to her “L” Scale evaluation in the MMPI (another test) that her readings are unreliable, but in oral evidence he agreed that overall she was average in the objectives test portion of the assessment. N.D.’s parental stress index has an average score but Mr. Bryson noted under cross- examination that it was elevated in relation to her dealings with S.M.. However, S.M. was not assessed at all. Any behaviors that S.M. might manifest that could cause an elevation in this scale were not provided to Mr. Bryson and were not considered. [36] Mr. Bryson concludes during his viva voce evidence that N.D. cannot parent on the long-term; that she cannot put her children first; that she does not, and has not had positive relationships. N.D. is resistant and it will take long time for her to improve. He finds that she loves her children, but she loves herself more. He concludes that she has poor impulse control, cannot supervise and has problems communicating with her children. When asked by Mr. Raniseth (counsel for R.M.) to advise how he arrived at his conclusions, Mr. Bryson stated: MR. RANISETH: O.K. and take it you do that summary after the completion of the interview? MR. BRYSON: No this summary would be done at the completion of the report. MR. RANISETH: O.K.? MR. BRYSON: So it not specific to any specific interview. It after reviewing all of the materials including collateral information, the Applicant files, the psychological testing, then do summary or discussion based on all the findings. [37] Mr. Campbell (counsel for N.D.) continued on this theme while he is cross-examining the elevated “L” Scale in the MMPI: MR. CAMPBELL: Okay. Now the second last paragraph says she obtained slight five code type. This code type is relatively infrequent and occurs more in women than men. These individuals are very comfortable with themselves and their behavior. As consequence they report mainly emotional distress and are relatively free of any disabling anxieties or guilt. They are in good physical health. They report they do not abuse substances, isn’t that positive? MR. BRYSON: think would view it more positive if the fact that the scale which is known as the Lie Scale was not elevated. MR. CAMPBELL: But am suggesting to you that if you were to take any parent anywhere on Cape Breton Island and submit them to the battery of tests you ve done, that there isn’t one that would pass with flying colors and you say this person must parent. Everyone would have their faults? MR. BRYSON: No, actually in my experience have found some parents that have done very well in their scores on this one in particular have come up with what’s called W.N.L. profile. MR. CAMPBELL: Okay, can you tell us how many studies you’ve done, what percentage of success you’ve had and can you...or are you aware of any population studies across the country that give some indication of how many parents would pass something like this? MR. BRYSON: No, I’m not aware of those. MR. CAMPBELL: There are no studies on it, that’s why, isn’t it? MR. BRYSON: I’m not aware of any. MR. CAMPBELL: Yeah, you just do it on an individual case by case basis, there are no statistics to guide us are there? MR. BRYSON: All can go by is my experience and that there have been parents I’ve’assessed who have not had the same profile. [38] He was subsequently questioned about the W.N.L profile by Mr. Crosby on re-direct. Mr. Bryson referred to it as form of code. MR. CROSBY: You made reference to W.N.L. finding... MR. BRYSON: Right. MR. CROSBY: ...maybe I'm just being curious. What, what, what does that stand for? MR. BRYSON: Okay. W.N.L. I'm not sure the exact words it represents believe it's just code itself. It's for someone who has been found to be quite open and honest in completing the M.M.P.I. 3, that...or M.M.P.I. 2, that they do not appear to have any social skills deficits, there are no indications of any significant personality issues or deficits and appear to be quite happy and quite well functioning in all areas of their life. [39] However, in his conclusion, Mr. Bryson describes N.D. in harsher terms. On cross-examination he advised the only way to safely return the children to N.D. was to have person in her home full-time to help her raise the children, make sure they got to school, were properly fed and supervised. Overall, N.D.'s objective tests yielded average results. At the end of the day, Mr. Bryson did not explain the discrepancy between the objective tests and his objective observation (with the exception of the one elevated validity test in the MMPI), nor was he able to satisfactorily answer Mr. Campbell's questions in relation to these points. [40] The MMPI-2 has recently come under scrutiny in Stahl, P.M., Conducting Child Custody Evaluations: Comprehensive Guide, Sage Publications, Inc., 1994. Dr. Philip Michael Stahl has Ph.D. and is psychologist in North Carolina. He has worked with families of divorce for fifteen (15) years. He did his original doctoral thesis on attitudes and beliefs about joint custody. He has been doing such evaluations custodial evaluations and has performed approximately six hundred (600). He is past president of the Michigan Inter-professional Association on Marriage, Divorce, and the Family. He is currently member of the National Board of Directors of the Association of Family and Conciliation Courts and Co-Chairs private practice and number of Custodial Evaluation Committees.1 He states at page (55) of his text: One of the very important issues associated with psychological testing is that most of the psychological tests used for purposes of custody evaluations were designed for different purpose. One of the most widely used tests in custody evaluations, the Minnesota Multiphasic Personality Inventory (MMPI), was designed for hospital use in diagnosing severe psychiatric disturbances. The recently updated MMPI-2, although it has been normed over broader population, has been described by many psychologists as significantly flawed outside the hospital population. [emphasis added]2 [41] Further, he goes on to discuss the positive aspects of the Parenting Stress Index to the evaluation and on page (56) wrote: The MMPI and similar computer-scored objective tests are useful for providing rough assessment of personality dynamics, defensiveness, affect, ability to deal with hostility, and aggression, which is important in complete understanding of the person's psychological functioning.3 [42] Finally, he concludes that Chapter at page (57): Finally, with the careful use of psychological testing, we can gain insight into some of the psychological dynamics of each individual and the role that these dynamics play in the overall assessment.4 [43] The responses from Mr. Bryson provides the Court with no insight as to why young woman, who is basically healthy and passed the majority of her psychological tests, acts in the manner she does. Nor, are the recommendations particularly helpful. If she is non-receptive to learning and putting the children first, what good is full-time caregiver in the home? [44] could not, at the end of the day, having spent substantial time on this report, understand, based on Mr. Bryson's report and his testing as quoted, how he arrived at the conclusions he did when one looks at his own basic decision making practices. It consists of gathering information and objective testing. When all steps are taken, the conclusion is forthcoming. When examined his own methodology, was at loss to understand how he came to his conclusion (as exhibited at the Disposition Hearing). Page (34) states as follows: N.D. presented as an angry, aggressive, impatient, defiant, moody parent with very low frustration tolerance, highly impulsive behavior, and very little insight. She is unable to maintain lasting and meaningful relationships. When others, including her children, place demands on her, she is likely to react in an abrupt and explosive manner. Her personality structure, which was well formed as child and is consistent with her current presentation, finds her to be defiant and oppositional person who values shocking others. She has profound lack of insight into her responsibilities to her children, minimizing or denying her parenting deficits. N.D. is not motivated to make changes, as she appears to genuinely believe that others are responsible for her difficulties. It is highly unlikely that she would co-operate with the Applicant if her children were returned to her care. By not taking responsibility for the neglect of her children, they would be at significant risk of neglect or harm if they were returned to her care. [45] As indicated, Mr. Campbell cross-examined Mr. Bryson rigorously as to why the objective tests were acceptable, but the objective input from Mr. Bryson was less so. Mr. Bryson’s conclusions are not supported by the objective tests and this discrepancy remains unexplained. [46] His conclusion appears to be based on N.D.'s outspokenness and on substantial portions of the Children's Aid file. C.A.S. materials were not vetted and were not subject to cross-examination. Secondly, his conclusions in relation to her behavior, e.g., whether or not she could have lasting relationship, whether or not she had short temper, whether or not she was committed to raising her children are conclusions that Court, with properly presented evidence, can make without opinion evidence. [47] Mr. Bryson’s description of how the children reacted to N.D. as opposed to R.M. during access was helpful, but this is also material that could have been presented through Family Skills Worker, an Access Supervisor, or any objective lay witness. [48] In any event, find his conclusion re parental capacity is not borne out by the data he presented. find that he has discrepancies between his objective testing and his office interviews. He has been unable to explain or reconcile his own conflict within his own report. Secondly, find that he relied to substantial degree on the material in the Agency file, which was not subject to cross-examination. The Agency file is an internal document. It was not meant as the ultimate document of truth and does not have any of the safeguards. Perhaps the most glaring example is the reference to N.D.'s loss of her child through possibly dirty baby bottle. It was clear at the end of the day that there was never evidence of this allegation. This is highly prejudicial comment to consider in the absence of proof. [49] The use of this type of speculation and the basis that an opinion witness is able to use background material, is very important issue. It has been referred to by many Courts. think it is particularly important in Children's Aid cases, where the Agency staff, by their mandate, have to take unsubstantiated complaints people make and look into the allegations. The Children’s Aid Society staff dismiss them or validate them or continue their investigation until they complete risk assessment. This is running file it is not truthful chronology it is working document for an Agency who is given the obligation to look into matters. They obviously looked into an allegation about illness and death associated with dirty baby bottle. The allegation was never substantiated, but is referenced in the protection affidavit. It is in Mr. Bryson's assessment, and it is in Dr. Hann's assessment. [50] The decision of Justice Sopinka in R. v. Lavallee (1999), 1990 CanLII 95 (SCC), 55 C.C.C. (3d) 97, in assessing similar problem, critiques four (4) features of the controversial case of R. v. Abbey, 1982 CanLII 25 (SCC), [1982] S.C.R. 24, and he says: Upon reflection, it seems to me that the very special facts in Abbey, and the decision required on those facts, have contributed to the development of principle concerning the admissibility and weight of expert opinion evidence that is self-contradictory. The contradiction is apparent in the four principles set out by Wilson J. in the present case, ante, pp. 127-8, which reproduce here for the sake of convenience: 1. An expert opinion is admissible if relevant, even if it is based on second-hand evidence. 2. This second-hand evidence (heresay) is admissible to show the information on which the expert opinion is based, not as evidence going to the existence of the facts on which the opinion is based. 3. Where the psychiatric evidence is comprised of heresay evidence, the problem is the weight to be attributed to the opinion. 4. Before any weight can be given to an expert's opinion, the facts upon which the opinion is based must be found to exist. The combined effect of Nos. 1, and is that an expert opinion relevant in the abstract to material issue in trial but based entirely on unproven hearsay (e.g., from the mouth of the accused, as in Abbey) is admissible but entitled to no weight whatsoever. The question that arises is how any evidence can be admissible and yet entitled to no weight. As one commentator has pointed out, an expert opinion based entirely on unproven heresay must, if anything, be inadmissible by reason of irrelevance, since the facts underlying the expert opinion are the only connection between the opinion and the case. The resolution of the contradiction inherent in Abbey, and the answer to the criticism Abbey has drawn, is to be found in the practical distinction between evidence that an expert obtains and acts upon within the scope of his or her expertise and the evidence that an expert obtains from party to litigation touching matter directly in issue (as in Abbey).5 [51] Further, he states at page 643: Where, however, the information upon which an expert forms his or her opinion comes from the mouth of party to the litigation, or from any other source that is inherently suspect, court ought to require independent proof of that information. The lack of such proof will, consistent with Abbey, have direct effect on the weight to be given to the opinion, perhaps to the vanishing point. But it must be recognized that it will only be very rarely that an expert's opinion is entirely based upon such information, with no independent proof of any of it. Where an expert's opinion is based in part upon suspect information and in part upon either admitted facts or facts sought to be proved, the matter is purely one of weight. In this respect, agree with the statement of Wilson, J., ante, p. 130, as applied to circumstances such as those in the present case.6 [emphasis added] [52] Mr. Bryson's tests on R.M., interpreted alone and with his viva voce evidence, and with his objective testing, contains some consistency. The tests and the objective data bring together coherent picture that would permit person to give an opinion based on something more than what the lay person could discern. However, was still left with the conundrum that did not know the extent the objective data was influenced by, by the review of the Agency file and input from various untested collateral sources. At page 34, Mr. Bryson concluded: R.M. presented as an egotistical, narcissistic, self-absorbed male who is driven by his desire to be in sexual relationship with N.D.. When he has become intolerant of her behavior, he has left the relationship, leaving the children in her care. Concerned with his belief that the children were being neglected and harmed, he admits to contacting the Applicant. When the Applicant investigated, and found that risk of neglect or harm did exist for the children, the children were removed from the home. During the Assessment, R.M. indicated that he contacted the Applicant in error. He no longer believed that the children were in need of care. He claims that N.D. has offered herself to him if he helps her in having her children returned to her care. This is the N.D. who petitioned the Applicant to deny him access visits with the children. That there is long history of conflict between R.M. and N.D. that is not disputed by either. That they can cohabit and provide care in the best interests of the children is doubtful. Even if the couple could put their needs aside, they both lack the necessary parenting skills. R.M. has clearly said that he does not have any parenting deficits, and is now saying the same about N.D.. R.M. has very little insight into the needs of the children. Similar to N.D., he has driving need for attention. [53] There is not the same discrepancy between the testing data, the independent observation and the summary conclusion in relation to R.M.. Some weight can be given to the assessment of R.M., but at the end of the day, his conclusions may well have been made without the recourse to opinion evidence. [54] Mr. Bryson's summary of R.M. did withstand scrutiny during the cross-examination by counsel. [55] Children’s Aid Protection Worker, Paul Moore, who had carriage of the file, indicated that it was the Agency's plan, up until April 2002, that the family would be reunited as soon as possible. The concerns he outlined were problems with the mother regarding lack of supervision of very young children, consistent lack of food in the home, lack of money to run the home, cleanliness in the home and with the children, and her absence of family support. [56] The Children's Aid placed fair amount of emphasis on the Bryson Report as negative element against the return of the children to N.D.. The Bryson Report caused the Applicant to take more intense look at R.M.’s parenting practices. The Agency, via Mr. Moore, did acknowledge that S.M. had strong attachment to the L.s and she has an attachment to her father. It was his view that S.M. should remain with the L.s and with R.M., under the Children’s Aid Society’s guidance. He indicated as well, it was his view that the three (3) youngest children must be placed in permanent care, to be adopted with no access to the parents. [57] Mr. Moore advised the Court that Family Skills Worker had been with the family for years with no noted success. Mr. Moore indicated that it was his belief that N.D.’s chronicle neglect of the children constituted danger which could result in physical harm. He gives one example when one of the children was vomiting, and N.D. took the child to the hospital. The doctor ordered CatScan, but N.D. would not have the CatScan performed at that time. He indicated as well that even during supervised access with N.D., she had to be reminded to take care of the children when they placed themselves at physical risk. R..M had the same supervision deficit. [58] N.D. later explained the CatScan incident. The doctor advised her to take the child home and she went back at later time to have the CatScan performed, which was negative. [59] By consent of the parties and based on the best interests of the children, it was agreed that the Disposition Hearing would not be completed and new assessment ordered. The transcript which dealt with the new assessment contained: THE COURT: Okay. And you should also examine what material, if you can discuss it, what material does the psychologist get. have difficulty with an independent assessment that includes the whole Agency file myself, but ll leave that to you. If you have an independent study think it should be just that, but anyway...okay, how long? We should notify the assessor that we want this sooner than later and you are running into summer time now. If there is any particular issues that the Respondents counsel want the psychologist to examine, now is the time to outline that, any particular portions of the Bryson Report that you want specific comment on, you can add that to the very broad Parental Capacity/Psychological Assessment. So whatever you want, now is the time to phrase it, and we should notify whoever...(And then we go on to state) Are you in agreement as to who will do the assessment? (And the discussion continues) [60] The Disposition Review could not continue until the Fall because the re-assessment, or the second opinion assessment, requested and agreed to, was not prepared. In the interim, between the June 18th adjournment, the new assessment was performed, and the L.s (R.M.’s parents) were granted standing on December 13, 2002 to seek custody of S.M. and perhaps A.D., if R.M. was the biological father of A.D.. [61] Dr. Hann asked to discuss with the Court the parameters of the Assessment. time was set up with the lawyers and myself to have conference call with Dr. Hann to map this matter out, but at the appointed time the lawyers were coordinated, it was not possible to have Dr. Hann to attend by phone. It is my recollection at that time, that Dr. Hann wanted to see the whole Agency file and the Bryson Report. was advised subsequently that Dr. Hann only wanted to see the Bryson Report. interpreted the matter to be settled between the lawyers as it was communicated that it was agreed that Dr. Hann would have the Bryson Report. am less clear whether or not the consents did or did not deal with the Agency file. have no transcription and no memorandum of that fact, so it is left unclear. During the course of time it took to complete the Hann assessment, it was my understanding that Counsel had agreed to what materials he could examine in his re-assessment. However, during summations last week, counsel for R.M. indicated that he did not and never did consent to Dr. Hann reading the Bryson Report, and that he had remained opposed throughout. [62] This confusion is odd, as 98% of matters are done by transcription or by memorandum, however, in this case, there is no record to chronicle the discussion. The Court accepts that Mr. Raniseth did not wish this material released to Dr. Hann. The purpose behind the second assessment was to give N.D. (and R.M.) chance to obtain second fresh opinion so perhaps there would be remedial measures or perhaps better outcome of the assessment so that she would be able to continue to parent her three (3) children. [63] In my view, Dr. Hann was viewed as first time assessor. have problems with the treatment with first time assessors. In any event, he was treated as first time assessor and not re-assessment. have indicated that have always had problems with reliance on the Children’s Aid file for any assessment. It is my opinion that protection affidavit, with serious allegations consented to in the protection finding, is very different from the whole Agency file, which is not evidence. The consent of party to protection finding based on protection affidavit raises the evidentiary integrity of the protection affidavit. This is not the same status held by the entire Agency file. This is not to be seen as condemnation of the Agency that is not my intention. It is simply that the agency file is heresay material which was not subject to cross-examination. It contains matters that may have been resolved. It is document that could cause erroneous impressions. The use of the agency file in this case has clearly resulted in unfounded assumptions which influenced the opinion evidence. [64] Substantively, have several problems with Dr. Hann’s Report and with his viva voce evidence. However, do not need to examine those issues in depth because of the conclusion make in relation to the re-assessment. The dangers are apparent when an independent assessment is ordered. Ultimate fairness and balance are essential. The appearance of ultimate fairness is essential. The problems with Dr. Hann’s report are: He does not state what his source documents are. He sprinkles sources throughout his Report but there are no listings of sources as Mr. Bryson and others have provided. do not know what materials he reviewed, but can gather from his evidence, he read the Bryson Report. He seemed to have read portions of the Children’s Aid file and believe he makes reference to medical evidence that he secured from the Agency file. This means person on the medical staff told someone in the Agency something which Dr. Hann picked up and reproduced in his report. STATING THE BASIS OF THE OPINION The general rule is that an expert may give an opinion on any issue he or she is qualified to give an opinion on. He or she must state the basis of that opinion so the trier of fact can evaluate the facts and the opinion based on those facts. Failure to identify the facts upon which an opinion is founded might result in an opinion being given little, if any, weight. Whether or not counsel has proven the assumptions on which an expert’s opinion is based is an issue of fact to be decided by the trier of fact. The Alberta Court of Appeal has described the task as follows: In the absence of any proof of the facts on which the expert opinion is based no weight will be given to it. Equally, if some proof of the hypothetical facts is offered by admissible evidence, then the question will be whether it is sufficient to meet the requirements for which it was called. Proof beyond reasonable doubt requires more than evidence intended to raise reasonable doubt.. In each case the trier of fact will consider to what extent the hypothetical question has been proven and whether in the circumstances it is sufficient. [65] On page (3), Dr. Hann addresses the issue which was never discussed on record concerning the Court’s view of what ought to be in second opinion. He states as follows: The current assessment represents the second parental capacity assessment of N.D. and R.M.. As part of the current assessment, the assessor reviewed previously completed parental capacity assessment, which had been conducted in May 2002. Some concern was originally expressed by Justice MacLellan that the re-assessor not have access to the previous report and agency files. Justice MacLellan apparently expressed concern during court proceedings about the potential bias that may be created for the present assessor by reviewing the agency files and the past psychological report. It is the professional opinion of the present assessor that if the current assessment did not incorporate thorough file review, including access to the previously completed parental capacity assessment, this would not constitute best practice model of assessment. Psychological therapy and assessment is always potentially impacted by bias. psychologist by nature of training and expertise continually self-monitors the potential impact of his or her bias in the assessment process. By being aware of potential issues, which could subtly or directly influence the assessment process, he or she minimizes the impact of such bias on his or her conclusions. Ignoring or not being granted access to previously conducted assessments or historical information is not an adequate solution to preventing bias. In fact, ignoring such information would represent serious deficit in assessment practice and could potentially be considered professional misconduct. The solution to this dilemma is to conduct thorough and multi-modal assessment, while continually monitoring the potential for assessor bias. During the current assessment, the assessor explained this rationale to both Mr. MacKinnon and Ms. Davidson. They both understood the rationale and agreed to the current assessment with the full understanding that the current assessor would conduct comprehensive file review and review the previous assessment. The assessor also apprised the agency and agency lawyer of this and also made an attempt to discuss the matter with Justice MacLellan and counsel for the Respondents, but difficulties in coordinating telephone consult prevented this discussion from occurring. It is the opinion of the examining psychologist that the present assessment results are valid and represent an accurate profile of parent and child functioning. Readers of this report are reminded that the recommendations contained herein are considered to be guidelines based upon assessment findings and clinical judgment at the time of assessment. [66] Sprinkled through Dr. Hann’s Report is information from various collaterals, and he says on page (17) and (18): [1] Extensive documentation of CAS, reviewed as part of the current assessment, reveals that N.D. has been well known to the CAS of Cape Breton since March 15, 1996. referral to CAS was made by concerned hospital staff that reported that N.D. had reported to the Cape Breton Regional Hospital at 23 weeks gestation and requested that labor be induced. Agency records reveal that N.D. was well known to hospital staff and prior to the birth of her daughter was constantly at the hospital complaining of abdominal pain. Agency records also reveal that N.D. acted in very bizarre manner with hospital staff and that she reported that three teenage girls had threatened to take her baby. [2] K.D., N.D. first child, who was fathered by R.M., was born [in 1996]. An intake by the CAS office occurred on March 19, 1996. Concerns included N.D.’s lack of resources to care for the child (e.g., no crib, limited money and chronic financial difficulties such as $1900.00 in rent arrears). N.D. and her baby, K.D. were followed by the agency until January 16, 1997. Agency records reveal that supervision was no longer deemed necessary. On June 2, 1997, N.D.’s baby died and cause of death was reported to be staph infection, which was possibly contracted through poorly cleaned baby bottles. [67] In the second paragraph, there has been no evidence whatsoever before this Court to substantiate the allegations. There have been contra-indications as to why .K.D passed away, which had nothing to do with baby bottles, according to the autopsy conclusions provided by way of viva voce evidence. We have that highly inflammatory statement now made by two (2) independent assessors who are monitoring their bias. It should be noted that an autopsy on this child was performed, and an investigation was performed by the police. It concluded there were no charges to be laid in relation to this child’s passing. No reason for the child’s death attributed to the parents was ever provided. [68] This unsubstantiated cause of death in Mr. Bryson’s Report and Dr. Hann’s independent second Assessment is disconcerting to the Court. It would appear that the self-analysis that Dr. Hann discusses to remove his bias and his continued monitoring to remove the appearance of bias was not successful in the case of N.D. and R.M.. [69] In short, self-monitoring was not successful at least it does not appear to be. It is essential that bias not be present and that bias not appear to be present. There are errors in Dr. Hann’s report, while of lesser significant, make one wonder as to the caliber of the overall preparation, e.g. his comment that R.M. regularly visits his father, when R.M.’s father had passed on four (4) or five (5) years ago. That is the sort of error that makes one question the accuracy of the basic information intake. [70] Referring again to Dr. Stahl’s text on Conducting Child Custody Evaluations, Comprehensive Guide, at page (149), he states the following: Ethics, Bias and Professional Responsibility Throughout this chapter and throughout this book, have focused on the paramount issues of ethics and professional responsibility. It is clear that the evaluator’s primary job is to maintain high ethical standard in his work. If we do nothing else, by maintaining such high standard for ethical responsibility we can educate the court and the attorneys about these critical issues. If we do only evaluations that are court ordered (or agreed on) and if we refuse to take cases where there is even hint of inappropriate bias, it is harder for one of the attorneys or one of the parents to question our recommendations as unprofessional. For example, in my recent experience, father continues to have very hard time accepting the recommendations of an evaluator, in part because the mother cousin is psychologist who works on the same faculty as the evaluator. do not even know if the evaluator knew this, but this was enough of potential source of bias, at least in the father eyes, to give him reason to question the evaluator recommendation that went more in the mother favor. will not take referrals from close friend who is family law attorney simply because of the potential for appearing to have conflict of interest. Similarly, recently knew of an evaluator who, at the end of the evaluation, 4-year-old children need mothers in that capacity. The evaluator had not informed the parents or attorneys of that potential gender bias at the start of the evaluation, and because it came out that way, the father had hard time accepting the recommendations. In essence, it is critical for evaluators to pay attention to potential conflicts of interest and their inherent biases, know their source (research-based, theory-based, or value-based), and make them clear to the parties and attorneys before commencing with the evaluation if there is any doubt whatsoever.8 [71] In conclusion, there are references to materials in the Hann Report that were never consented to by all of the lawyers, which is not Dr. Hann’s difficulty, because it was my understanding that they all had consented (and my understanding was incorrect). However, Dr. Hann used material in his report that was never proven. He used this material as if it was accurate. Also it is not appropriate to refer to background material that was hearsay as necessary for historic background. [72] Dr. Hann’s report ought to have cited his source documents. He did not. There should have been concerns as to the background material that he reviewed. It must be recognized that parents who are at risk of losing children often love the children, but they have problems problems which result in the children being at risk. All evidence used to calculate this risk and remedial measures must be properly acquired and properly presented. [73] It is my view that an opinion must be procedurally accurate and, as have indicated, find that Dr. Hann’s Report in the areas cited, is not. Furthermore, Dr. Hann used portions of Mr. Bryson’s I.Q. tests and did not repeat these tests. During viva voce evidence, he acknowledged that he placed some reliance on Mr. Bryson’s report. This is not appropriate and it does not appear fair. The manner the Hann Report was prepared, and the viva voce evidence he gave, does not amount to properly obtained opinion evidence. [74] Also, Dr. Hann referred to himself as friend of the Court, however, throughout most of his examination, he tended to debate as opposed to clinically answer all questions regardless of who was asking the questions. [75] As indicated again in the text, Conducting Child Custody Evaluations, Comprehensive Guide, Dr. Stahl outlines the assessors job at page (147) as follows: Our job during both direct and cross-examination is quite simple. It is to: .1 Remain neutral, impartial, and fair to both parents; .2 Avoid adding to the splitting and polarization in the courtroom; .3 Answer all questions honestly, clearly, and succinctly; .4 Avoid over-explaining or getting too technical; .5 Avoid arguing with anyone; .6 Maintain our position; and, .7 .Be clear with the court if we do not know something or cannot be certain about an event.9 [76] find that Dr. Hann did not follow the recommended behavior for the opinion witness. [77] For all of the reasons have given, place no weight on Dr. Hann’s report. [78] Paul Moore, again gave evidence on January 10, 2003 and he was still the main Children’s Aid Worker on the file. [79] The Agency staff wished permanent care for the three (3) younger children and for S.M. to remain with the L.s. Mr. Moore believes that the L.s have taken all possible steps to improve their situation for S.M.’s benefit and to learn how to deal with her very challenging behaviors so that she can improve; and, S.M. has improved. [80] The reasons the Agency is seeking permanent care is outlined in the Plan of Care at paragraph (7). 7. Where the agency proposes that the child be placed in the permanent care and custody of the agency: (a) Why the circumstances justify the proposal are unlikely to change within reasonable foreseeable time not exceeding the maximum time limits: The Agency became involved with this family as result of concerns with issues of lack of supervision, lack of adequate food supplies, potential hazards in the home, home cleanliness, no diapers and the unwillingness or inability of the parents to provide for the children. [81] The Agency then goes on to discuss the Bryson Report (portion not cited). On page (3), paragraph (3) of the Plan, the Agency indicates: The Agency has provided the services of family support worker to address issues of parenting, budgeting and discipline. To that end, the Respondents have repeatedly expressed their belief that they are not in need of such services. They continue to experience the same difficulties that they had at the beginning of this Agency involvement. The children, A.D., O.D., D.D., are at ages where the coming months and years are becoming more crucial. For A.D. especially, this is key period for child development and the permanency of stable, nurturing home would assist in this stage of child development. The longer the time period before permanent placement is implemented increases the risk of permanent detachment. It is the Applicant’s hope to minimize the risks of permanent detachment with adoption to occur at the earliest possible time. [82] Mr. Moore describes S.M.’s past behavior where she would bite, kick, hit and not get along with other children. All the children, except A.D., have manifested behavioural problems and all improved in their current placements. Mr. Moore believes the L.s wish to have A.D. eventually, however, Paul Moore is not supportive of this proposal, although he is very supportive of the L.s in general. Paul Moore is not supportive of A.D. being placed with the L.s because S.M.’s behavior is so challenging that he fears that adding new baby to this household would jeopardize S.M.’s placement and ultimately have negative placement effect on both children. [83] Mr. Moore stated, based on the Children’s Aid experience with R.M., and the Assessments, that he believes R.M. cannot parent effectively. He stated all the telephone calls that R.M. made to Children’s Aid were never on timely basis. The reports were made well after the fact. R.M. would reconcile with N.D. and move S.M. back into that setting. This was the cycle of R.M.’s relationship with N.D.; and S.M. was often caught in the middle. Even with supervised access, Mr. Moore has advised that R.M. is not sufficiently attentive to the children’s safety. [84] The Applicant does not support N.D.’s position due to: (1) Their long involvement with her over parenting issues, without success; (2) Her refusal to accept services; (3) That she has discussed with them being overwhelmed with the care of four (4) children; (4) Her refusal to follow through on the mental health recommendation; (5) The long-time pattern of the children poorly clothed, poorly fed and poorly supervised; Her lengthy placement with Family Skills and Parent Aid, which was not successful; (6) His belief that the children are emotionally neglected; (7) That during access with the children, N.D. has to be told something as basic as removing toy from A.D.’s mouth; (8) That all of the children have improved in the foster care and it is now time to respect their sense of time and find stable homes for them their need to form lasting attachment with someone who can meet their fundamental needs. [85] Paul Moore attributes S.M.’s improvement, while with the L.s, to their commitment to her and the L.s’ commitment to work with the Children’s Aid Society. The L.s have shown commitment to work with the teachers in the use of different reward methods that are age-appropriate for curbing unbecoming behaviors of five (5) year old. S.M. is seeing pediatrician who has referred her to child psychologist. [86] Mr. Moore admitted that R.M. had legal custody of S.M. and that the Agency did not have any problems with R.M. until receipt of the Bryson Report. Although the Agency had problems with the timing of his complaints against N.D. and access supervision, Mr. Moore indicated that they felt that R.M. had positive input in the raising of S.M. and maintaining the household in the earlier years prior to the Bryson assessment. [87] M.L. gave evidence on January 24, 2003. It is her wish and she believes it is her husband’s wish to have custody of S.M.. They received standing in December, 2002 and filed custody application in February. They wish to adopt A.D. when they are ready, which would dependent on S.M.’s behavior. They wish custody of also take A.D. if it is proven he is R.M.’s child. This issue was debated for days, but the Court was not given any conclusive proof as to whether or not A.D. is the son of R.M.. There was discussion of some DNA or blood samples, which were never tendered to the Court. R.M. believes that he is the father and it seems the Agency staff may believe that as well. At the end of the hearing, have no definitive answer as to who is the father of A.D.. [88] At the time of giving evidence last month, M.L. was fifty-seven (57) and her husband was sixty-two (62). M.L. co-operated with the Children’s Aid Society, the school and with anyone who has input to assist S.M.. S.M. is close to M.L. and R.M., but M.L. holds herself out to be the principle caregiver. [89] Mr. L. is diabetic. M.L. first indicated Mr. L. only suffered from heart condition, but under cross-examination indicated, “Yes, he is also diabetic”. His wife believes that he and she will be able to parent S.M., who has been with them approximately half of her life. [90] M.L. indicates that R.M. works now and gives her money to help out with S.M., follows her directions with S.M. and helps around the house. She indicated that if she has custody of A.D. she would treat him like S.M.. She cannot remember asking for access to A.D. since December 1st, 2001, when he was taken into care. [91] Historically, she indicated that she has seen N.D. and R.M.’s home in shambles unsanitary, dishes on the floor, and hazards on the floor when the children were present. She indicates that she heard “slap” while on the phone and child cry and made complaint to Children’s Aid immediately. [92] R.M. was with N.D. in the Fall before the apprehension and moved out approximately two (2) weeks before the children were taken. It is interesting to note that M.L. does not attribute much blame for the shape of the house or the unsanitary conditions of the children to R.M. but reflects most of the blame, if not all of it, on N.D.. [93] It is apparent M.L. and N.D. do not enjoy good relationship. They both agree on that and they both agree it is the result of K.D.’s passing. [94] M.L. does not want R.M. to have sole custody as she is afraid that he may reconcile with N.D. as he has in the past. M.L. indicates that R.M. has past of putting himself first. She indicated that R.M. has changed lately. He is taking better care of himself, he is working, he is giving her money, and she hopes that he will mature. When asked if she believes he will mature, she indicated that she did not believe that he would. She viewed her experience with this couple as “R.M. and N.D. put themselves first, ahead of the children”. [95] She did not agree on cross-examination that R.M. was good example of how she and her husband parent. R.M., as teenager, would not listen, hung out with the wrong crowd and ended up in the Springhill Penitentiary. She acknowledges that he has approximately five (5) children from five (5) different women only one of whom he supports financially. She has had to correct R.M.’s disciplinary practices in the past when he disciplined S.M. by having her raise and hold her hands in the air and hold them there. [96] She and her husband will care for S.M., who will want for little. They will give her love, security, and financial security. S.M. also has friends in her neighbourhood and she is doing reasonably well in school, considering her past behaviors. S.M.’s behavior overall is improving. M.L. described the reward system, which appears to be labour intensive for parent. It requires constant monitoring, but appears to be working according to Mr. Moore and M.L.. [97] M.L. will facilitate access with S.M. and N.D. through her mother (P.). P. and N.D. get along well. P. is seventy-six (76) years old and in good health. M.L. indicated that she never enjoyed good relationship with N.D. but N.D. has reasonably sound relationship with Mr. L.. [98] M.L. impressed the Court as credible witness, whose parenting commitment was already noted by S.M.’s improved performance. It is clear that M.L. loves S.M. and will take the necessary steps to ensure that she reaches her full potential. It is so, even though all witnesses agree that S.M. is challenging five (5) year old. [99] Her plan for A.D. is vague. M.L. indicates by her own evidence that she does not have bond with the child. The fact she and her husband never sought access to A.D. since December 2001 clearly illustrates there is no effort by the L.s to establish bond with A.D.. [100] R.M. gave evidence on January 24, 2003 and advised that he and N.D. had an on-and- off-again relationship for approximately five (5) years. He believes he is the father of three (3) of the children K.D. (who is deceased), S.M. and A.D.. He has had legal custody of S.M. almost from birth. He has had approximately eleven (11) residences since S.M. was born, between 1997 and the date of apprehension, December 2001. He has had approximately six (6) children from five (5) women. He financially supports S.M. in the amount of five hundred and fifty dollars ($550.00) per month and has summer visits with another one of his children. Two (2) of his other children were adopted and therefore he was not able to interact with them. [101] S.M., as have indicated, had been with the L.s for the first eleven (11) months of her life, then with her father at various residents on and off and then back with the L.s since approximately July, 2001. R.M. indicates that he has called Children’s Aid approximately five (5) times in the last two (2) years twice looking for provisions and three (3) times to complain about N.D.’s care. One time he called because he heard one of N.D.’s daughters being slapped and he believed that N.D. slapped the child. At the time of trial, he no longer had the same belief. He indicated he did not see the assault but rather heard the noise and heard baby cry. He advised that he never used threats of involving Children’s Aid to keep N.D. in relationship with him. [102] R.M. indicated that he learned great deal from his Family Skills counseling, except he did not follow through on all of the advice given when he found it not to be realistic or necessary. He indicated, as an example, when Annette Murphy told him he should always be in the room with S.M. when she was two (2) years of age, he did not follow that recommendation as he felt that it was not realistic. He believes that he had approximately fifteen (15) sessions with the Family Skills Worker over the years. [103] He does want to parent A.D. and S.M. and believes he has the ability. He would like to parent all four (4) children but he knows it is not realistic. He is working full-time and he knows that his mother will help out babysitting the children while he is at work. R.M. has had DNA testing performed, indicating that it is 99% certain that he is the father of A.D.. He recalls he did have sexual relations with N.D. around the possible time of conception. No documentation was provided regarding parternity. [104] R.M. admits he is not as active with S.M. as the L.s are, but believes he can parent S.M. better than his parents. He believes he cannot parent better than N.D.. He did call, he admitted, to complain about N.D.’s long hours at work when they were cohabiting. Some of the calls, he indicated on cross-examination, were about neglect, but not about safety. He described the calls were due to, “a reasonable amount of neglect”. [105] R.M. broke down his financial situation to advise how he can take care of two (2) children. It would appear that the idea of budgeting was new experience for him. It is the Court’s opinion that his budget is not well thought out. [106] On cross-examination R.M. cannot recall complaint that he allegedly made to Scott Clarke of Children’s Aid regarding the baby sleeping in crib in the closet or N.D. putting Tylenol in the baby’s bottle. He did indicate that “yes”, one of the baby’s did have crib in the closet and N.D. only put Tylenol in the bottle because the baby would not take the medication any other way. He indicated that he did not often think about emotional abuse the children may have suffered. If they did suffer, both he and N.D. were the cause. [107] J.R. was called as witness. He is friend of both the Respondents. He is in long-term relationship and has steady job. He had completed high school with R.M. and knew N.D. for years. He is D.D.’s Godfather, and has been since June, 2001, which was six (6) months prior to apprehension. He was at N.D.’s home visiting, but more often after he became D.D.’s Godfather. He believes that the children are happy and that the parents are attentive to their needs. He does not have any children of his own, but he has indicated that he has certainly seen children who were less well cared for than N.D.’s children. [108] He describes N.D. as patient with all of the children, but indicates that S.M. is challenge. He found the house always to be adequate. He recalled that the parties separated often, but seemed to get along when he was present. He saw them often because he is their friend and their taxi driver. He knows very little of the Children’s Aid involvement with the family. [109] The Court next heard from N.D. on February 3, 2003. She is clear in her wishes that she wants all the children returned to her. She has problems with access at the Children’s Aid office as it is artificial and she finds her access visits awkward with people looking at her through the one glass mirror. Also, she wishes there was television or radio available in the visitation rooms. [110] She was concerned about the children’s health and care. There were three (3) incidents chronicled when she believed the foster parents were slow in seeking medical intervention; particularly, when one of the girls bit her tongue. [111] N.D. indicated she had tried to get help for K.D. (her deceased daughter), however both the hospital staff and with her doctor, only gave her lotions and not the medication the child needed. She and the children remain patients of the same doctor, up-to-date of apprehension. [112] N.D. indicated that when the hospital wanted her to leave O.D. in the hospital for CatScan after O.D. fell, she did not, due to her doctor’s recommendation to take the child home, which she did. She had the CatScan performed later, which was negative. [113] N.D. has indicated that her house was always clean, as she cleaned it regularly. Her home was never in shambles as described by M.L. and the Children’s Aid workers. [114] She indicated that she had the children with sitter when the Children’s Aid apprehended. The sitter did not answer the door because the Children’s Aid were knocking at the wrong door. She denies that the two (2) year old, O.D., was left unsupervised watching the workers through the door for approximately thirty (30) minutes. [115] N.D. explained that at the time of apprehension, December 30, 2001, the children were not clothed because the sitter was getting them ready for their bath and that children with diaper rash healed better if their bottoms were left exposed for periods of time. [116] N.D. agreed the children have had head lice, which she feels was quite common. She tried to treat it, but other grown-ups in the house also had head lice and did not follow the treatments. Therefore, N.D. had problems keeping the head lice under control in relation to her children. [117] N.D. indicated that she did move to number of apartments, but she was never evicted. On cross-examination she indicated she may had been evicted once because her cheque was late. There may have been two (2) other occasions when she was the subject matter of an eviction but these evictions were against R.M. because he had not paid his rent and she happened to be cohabitating with him at that time. She indicated that she has returned to R.M. on numerous occasions because of his need for financial support to keep his car going and his insurance paid. [118] At the time of trial, N.D. indicated that she quit her job at local restaurant in [..] as she was told to quit or be fired. She said that she was having difficulty with people at work, who were customers. She believed these people were getting even at her because they were not able to get even with her brother. She believes that some people believe she is bad person because of the death of her daughter, K.D.. [119] At the time of trial, she didn’t have an apartment and was living with friend. She had no income, but she has number of job prospects she is examining. Her first plan was to obtain home through Regional Housing, which she believes can happen quite quickly. Until that time, her friend in [...] has house and will allow N.D. to take the children there until she has suitable accommodations. [120] N.D. has no concerns if R.M. has custody of S.M.. Before, she had concerns because he had too many girlfriends and they all became known to S.M. as “mommy”. She maintains that she has many boyfriends but describes most of her relationships as on again, off again she indicated on examination from Mr. Campbell: Q. Do you in fact know who the father of A.D. is? R. It’s not R.M.? .A No it’s not. S. Does that person appear anywhere on an official document? Did you list that person’s name as the father? .A don’t know if it was officially written down but have told Children’s Aid Workers who the father was. T. When did you do that? .A On several occasions actually. U. After apprehension or before apprehension? .A Both. When J. would come over she would look at A.D. and say, “Is he ever cute” and this and that and the other thing and we got into the conversation of who the...as bad as this is going to sound there is more than one father of my children. There’s not much can do about it. [121] She is quite certain that R.M. is not the biological father of A.D.. She puts that certainty at 98%. But, there is small, but remote, chance that he may have been intimate with her without her knowledge, after she had had consumed couple of beer, however, she does not think this is likely. [122] N.D. believes that M.L. is not really close to S.M.; however she believes, S.M. is close to Mr. L.. N.D. has no problem with Mr. L.. She believes the L.s will take care of S.M.’s necessities, but not her emotional needs. If she receives custody of S.M., she will take S.M. off all prescribed medications and cancel her current behavioural modification program. N.D. is skeptical of the improvements that S.M. has made so far, believing there is possibility that S.M. may regress. [123] N.D. believes that she and M.L. did not get along because M.L. felt guilty for not spending time with D.D. when she did spend time with S.M.. She also believes M.L. harbors ill feelings towards her due to K.D.’s death. [124] She attributes her many changes of address at least eight (8) since 1997 to R.M. or to her landlord. She gave conflicting evidence whether or not she believed these multiple moves were not healthy for her children. [125] N.D. indicated that she called Children’s Aid several times over the years to provide food, formula and diapers. She also relied on family and friends from time to time to assist her in acquiring basic provisions. She admitted under cross-examination that she, on at least two (2) occasions, worked for cash under the table which is cash without deductions while accepting Family Benefits. She has had approximately six (6) jobs since S.M. was born in 1997. [126] She believes that she is not resistant to change. She has completed two (2) six-week courses on Stress Anger Management and “How to Talk to Children”. She told Children’s Aid she would take whatever courses they want, “read book”, or do whatever they want. All Children’s Aid did to help her was to give her two (2) courses on budgeting. She did have Parent Aid come to the house, she recalled, but it did not work out as well, as the Aid arrived when she and the baby were resting. She advised the Family Skills worker saw her only few times. However, N.D. agreed on cross-examination that it was possible that the Family Skills worker made up to twenty-two (22) separate visits to her home. [127] She indicated R.M. did report her to the Children’s Aid, but this was only to get back at her and had nothing to do with her care of the children. She indicated R.M. used the threats of Children’s Aid to keep her in relationship. She remained with him after the time of apprehension. They started business together because she believed if she did R.M. would tell Children’s Aid the truth and her children would be returned to her. [128] N.D. wants her children returned as she believes she can care for them. She believes she has never done anything to disentitle her from caring for her children. She believes that the Children’s Aid are biased and are “nit-picking” because of complaints made about her. She believes that R.M. and C.B. caused her to lose her children due to their calls to Children’s Aid about her slapping one of the girls. Although she did agree that her children were in need of protective services at the Protection finding, she could not explain at permanent care hearing why she agreed to the protection finding, except that she felt that she had no choice. [129] She was unable to explain why R.M., C.B. and M.L. would all call the Children’s Aid on the same day to complain that they saw or heard one of the children being slapped by N.D.. [130] Dr. Myatt, her physician, wrote the two (2) letters referred to in the Protection Affidavit. She indicated that Dr. Myatt wrote for the purpose of helping her get oil, and that he has retracted the negative portions. No evidence was provided to support her claim. [131] She indicated that if she does not have the children returned to her, she wants all four children to remain in foster care. She does not want S.M. to stay with the L.s. She would prefer S.M. be placed in foster care. She believes that if S.M. is moved, she would be disrupted for awhile, but in her own words, “after awhile it would go unnoticed”. [132] N.D. cannot explain why so many people have complained about her in the past nurses at the hospital, her treating physician, Department of Community Services, R.M., C.B., the police and M.L.. N.D. has indicated she only joked about calling her son “L.”, and she was not talking to the nurses at that time. This is one of the examples that she uses for being taken out of context by service providers. [133] She agreed the October, 2001 protection application for supervision was more serious than any of her previous Children’s Aid involvements. When asked what she did to improve her situation with the children prior to apprehension in December,2001, indicated that she tried to listen and to be patient with Children’s Aid. She appeared to agree she should not have left broken window in her apartment when the children were around, but she denies that her two (2) year old daughter was anywhere near the window unattended as the Children’s Aid workers alleged. [134] N.D. agrees that she had been advised to obtain counseling but would rather talk to her friends who can better relate to her problems. N.D. complained the L.s had frustrated her weekly access to S.M. in November, December and January; however, on cross-examination agreed that she cancelled some of these visits due to work or Court. She maintained the L.s at least failed to provide access for two (2) visits in row. She did not accept the Agency records that there was only one (1) such default, nor did she accept M.L.’s evidence that the L.s had never intentionally frustrated access. [135] She concludes that she has no deficits as parent. Her only deficit is that she does not have her children with her. DECISION [136] The Agency applied for permanent care of the three (3) younger children and for custody of S.M. to be granted to the L.s. Counsel agree that the outer time for completion of this case runs from the date of this decision, February 20, 2003. Where adjournments were made to allow assessments to be prepared, all parties agreed it was in the best interests of the children, and the best interests of the parties, that the extensions were granted. Adopting this premise the maximum time period for improvement, and to assess change in the foreseeable future expires on February 20, 2004. [137] The L.s filed an application for custody for S.M. on February 12, 2003. All parties expected the application to be made as the standing application was granted previously in December, 2002. The Agency supports this placement if Children’s Aid will continue to supervise S.M.. R.M. is to have limited involvement with S.M.. A.D. is not to be placed with the L.s as this would be too demanding for the L.s and S.M. and could jeopardize S.M.’s placement. [138] The Court finds, based on the review of all of the evidence, both N.D. and R.M. have very serious parenting deficits. acknowledge R.M. was not part of the Section 40 Protection finding but subsequent reliable evidence shows he has serious parenting deficits. [139] Without the assessments, the evidence is clear that all four (4) children would be at risk of harm under both Section 22(2)(b) and 22(2)(g) if returned to either parent as primary caregiver. [140] Both parents have caused or allowed the children to experience the following: (1) have head lice for protracted times; (2) endure bad diaper rash; (3) be without diapers, milk and food, frequently; (4) miss medical appointments, to the nature that even the doctor made report to Children’s Aid; (5) move eight (8) to eleven (11) times over four (4) years; (6) live in houses with mice, insufficient heat, broken windows and dangerous items on the floor; (7) witness the parents with multiple partners; one boyfriend physically abused N.D. in front of the child D.D.; (8) their home kept in an unhygienic state with dishes on the floor, while the children were present; (9) children in the home not dressed appropriately for time of year; (10) children were left without appropriate supervision; inappropriate supervision of the children continued even in supervised access setting; efforts to remedy this problem were not successful. [141] Neither parent learned from the numerous sessions of Family Skills Worker or Parent Aid. They were unwilling to accept direction unless it was to their liking. Neither parent accepted they have serious parenting deficits and that these deficits pose danger to the child. Neither parent acknowledged that they have any room to improve essential parenting skills. [142] Evidence from every source, excluding the assessments, and including N.D.’s own evidence, shows that she has bad temper and reacts badly to life’s stresses. Throughout the hearing she gestured frequently in court, interrupted the hearing on occasion and left the courtroom when testimony was negative. [143] certain amount of upset is understandable in permanent care cases and in Family Court generally, but N.D. presented to the Court to be in constant state of agitation. The Court acknowledges Judges are cautioned against placing too much emphasis on courtroom decorum, however, have observed N.D.’s deportment throughout the hearing; in particular the constancy of her agitation. [144] R.M. could have protected the children. He could have worked to at least provide the necessities for them. His calls to complain about Children’s Aid were often not timely. He has many children that he does not support. What is more alarming is he does not seem to have problem with the failure to support. He has modified or forgotten many of his complaints again N.D.. He exhibits no difficulty with discrepancies in his own evidence. Any child rearing complaints are due to N.D. or causes he cannot remember. At the same time, he believes that N.D. has no child-rearing problems at the present time due to of the two (2) six-week programs she completed. [145] The Applicant seeks to have the three (3) youngest children placed in permanent care without access to the parents. To agree with the Applicant’s position, must find all less intrusive avenues have been tried and failed or would not likely be changed within the foreseeable future, which is year from today’s date. [146] The remedial measures for both parents have been numerous money, transportation, budgeting, Family Skills Worker, Parent Aid, Counseling Referral Assistance, recommendation to mental health, coordinated care for S.M. to help her with her behavior, addressing concerns in the foster home and investigating various complaints. After approximately seven (7) years of involvement, four and one-half (4 ½) years of informal involvement, two and one-half (2 ½) years of court involvement, despite the consensual protection finding by N.D., both parents believe they have no problem areas to correct. One cannot correct serious parenting problems which put children at risk- if the parents cannot see that they have the need to correct these problems. Even up to the last day of evidence, N.D. believes that she has no deficits and R.M. supports her in this belief. [147] find the onus under Section 42(2) of the Children and Family Services Act has been met in this case. 42 (2) The court shall not make an order removing the child from the care of parent or guardian unless the court is satisfied that less intrusive alternatives, including services to promote the integrity of the family pursuant to Section 13, 1.(a) have been attempted and have failed; (b) have been refused by the parent or guardian; or (c) would be inadequate to protect the child. [148] Based on the evidence at the Protection Hearing, the protection finding and the evidence at the Disposition Hearing as already set forward in this decision, I find neither parent can, or wishes to, change in the foreseeable future. Less intrusive avenues have been tried and failed. [149] While I have effectively disregarded both assessments, the Respondents were not willing to accept any input from any professional. There is nothing to be gained, nor is it in the children’s best interests to order yet another Assessment or any further remedial measures. Therefore I find there is no likelihood of change in either parent in the foreseeable future as specified in Section 42(4) of the Children and Family Services Act. [150] The assessments were to provide an aid for new avenues to help the Respondents parent. The Respondents were not impressed with either assessment, which were negative to their cause. However, the Respondents have repeatedly refused to listen to any professional on how they could improve. The Respondents, by their own evidence, proved clearly the children would be at great risk if returned to them. It is not in the best interests of the children to be returned to the Respondents’ care, either together or separately. [151] The case has been made out against the Respondents on evidence excluding the opinion evidence. The Applicants plans could have been presented without opinion evidence. In this case, opinion evidence could be classified as “nice to have” and that is not the onus. refer the Court to the decision of R. D.(D.), decision of Major J. and the citation is 2000 SCC 43 (CanLII), 2000 S.C.J. No. 44 at page 48, where Justice Major said: The second requirement of the Mohan analysis exists to ensure that the dangers associated with expert evidence are not lightly tolerated. Mere relevance or helpfulness is not enough. The evidence must also be necessary. agree with the Chief Justice that some degree of deference is owed to the trial judge’s discretionary determination of whether the Mohan requirements have been met on the facts of particular case, but that discretion cannot be used erroneously to dilute the requirement of necessity. Mohan expressly states that mere helpfulness is too low standard to warrant accepting the dangers inherent in the admission of expert evidence. fortiori, finding that some aspects of the evidence might reasonably have assisted the jury is not enough.10 [152] Justice Major goes on to quote Professor Paciocco, when he said: As the Mohan Court explained, the four-part test serves as recognition of the time and expense that is needed to cope with expert evidence. It exists in appreciation of the distracting and time-consuming thing that expert testimony can become. It reflects the realization that simple humility and desire to do what is right can tempt triers of fact to defer to what the expert says. It even addresses the fact that with expert testimony, lawyers may be hard-pressed to perform effectively their function of probing and testing and challenging evidence because its subject matter will often pull them beyond their competence, let alone their expertise. This leaves the trier of fact without sufficient information to assess its reliability adequately, increasing the risk that the expert opinion will simply be attorned to. When should we place the legal system and the truth at such risk by allowing expert evidence? Only when lay persons are apt to come to wrong conclusion without expert assistance, or where access to important information will be lost unless we borrow from the learning of experts. As Mohan tells us, it is not enough that the expert evidence be helpful before we will prepared to run these risks. That sets too low standard. It must be necessary.11 [153] In this particular case, ordered the assessments as possible road map to examine some personality deficits which would provide remedial measures for the purposes of reuniting this family. At the end of the day, am not putting any weight, or very little weight, on the Bryson Report and none on the Hann Report for reasons already given. In the final analysis, and hindsight is wonderful thing, the expert opinion in this particular case with this history, was not necessary at least not necessary to decide if future remedial measures may work. [154] find there is no extended family capable of caring for these children as meant by Section 42(3) of the Children and Family Services Act, with the exception of S.M.. Section 42(3) of the Act states as follows: Where court determines that it is necessary to remove the child from the care of parent or guardian, the court shall, before making an order for temporary or permanent care and custody pursuant to clause (d), (e) or (f) of subsection (1), consider whether it is possible to place the child with relative, neighbour or other member of the child’s community or extended family pursuant to clause (c) of subsection (1), with the consent of the relative or other person. [155] endorse the decision of Justice Cromwell where he quotes Judge Levy, in the case of Nova Scotia (Minister of Community Services) v. C(B).T. and F.Y. (2002), 2002 NSCA 101 (CanLII), 207 N.S.R. (2d) 109, at page 7, T.B. v. Children’s Aid Society of Halifax that the evidence of the extended family must involve family that has the extra dedication to make the long-term commitment; that they have to be good and caring people and be willing to assert the responsibility of adding another child to their home. The evidence is clear, however, that the extra dedication that is needed to their own children is long-term commitment, conceivably until they leave home. These are good and caring people and parents, but it appears third child would be taking on more than they could handle. [156] find that with the exception of S.M., there is no other extended family member that has been put forward as an appropriate placement for the three (3) younger children. [157] In my review of Sections 22 and (2) of the Children and Family Services Act, and the best interests of these children. I find it is to be in S.M.’s best interest to be placed in the supervised care of M.L.. did not hear from Mr. L.. If the L.s wish to pursue their custody application for S.M., it may be prudent to have an actual medical opinion of Mr. L.’s health, as is usually provided in these cases, and to hear evidence from Mr. L. as to his view of his role in S.M.’s life. [158] R.M. is to find his own quarters apart from his parents. R.M.’s vision on parenting, his credibility, and his responsibility to his family are so diverse from that of his mother that he cannot serve as long-term positive force living in that household. He can have visits with S.M., unsupervised, and these are to be four (4) times week, over the next four (4) months and then two (2) times week after that for two-hour period. He is to always advise M.L. where he is taking S.M.. He will be courteous and prompt, failing which, access may be curtailed or terminated if it is not in S.M.’s best interests. acknowledge that S.M. will obtain professional help shortly. Therefore, if it is in her best interests to increase her access with her father, leave that in the discretion of the caregivers and the Children’s Aid Society, after proper consultation with S.M.’s counsellors. [159] S.M.’s access to her father is to be carefully monitored. If access becomes positive feature, it is to be expanded. If it becomes negative feature, it is to be terminated. [160] find that N.D.’s access record with S.M. has not been consistent. However, she seems to have exercised her access consistently with the other three (3) children. It is my finding, as I have indicated already, that these children have experienced a chronic environment of absence of necessity; multiple moves; one child has seen physical violence; medical needs have not been met; basic hygiene had not been met; supervision and safety concerns have not been met. The provisions of the Children and Family Services Act are preventative in nature. We have four (4) children who have been overwhelmingly neglected by one or both parents. It is in their best interests, that the three (3) youngest children will be placed in permanent care for the purposes of adoption, and there is to be no access to either parent. find that access is not in their best interest. The adoption option is the best hope for their right to secure home; their right to have an attachment; their right to have their basic needs met; and their right to be safe. [161] They have limited opportunity to bond with other people and to have another family to be happy, stable and content. find that their needs can be met if placed for adoption, with appropriate families. [162] Access to the mother and father shall be weaned from the three (3) younger children. If either party does not comply with proper access provisions, access will be terminated. All three (3) children shall be placed for adoption forthwith. N.D shall have supervised access to S.M., as supervised by Mr. L.. If this access is not exercised, it shall be terminated. Access shall take place twice month for two (2) hours at time convenient for N.D. and Mr. L.. [163] have heard very little, unfortunately, of S.M. and her bond with her siblings. Unfortunately, do not have authority to have input as to the terms of adoption. It may well be that all four (4) children would benefit from knowing each other. Hopefully, D.D. and O.D. will be adopted by the same family. am advised they have solid bond. Ideally, it would be better if all three (3) children be adopted by one family, but that is tall order, especially with the needs D.D. and O.D. have. [164] This Court now has spent two and one-half (2 ½) years with these children’s problems; it is my view they may benefit from form of an open adoption arrangement. This possibility is prohibited by the current Nova Scotia Adoption Legislation. Therefore, access between all four (4) children will continue at least until it becomes impossible due to the current adoption law in Nova Scotia. When adoptions are pending, an appropriate weaning-off process is to take place before access between these four (4) children is terminated. M. Clare MacLellan Justice of the Supreme Court of Nova Scotia (Family Division) 1Stahl, P.M., Conducting Child Custody Evaluations: Comprehensive Guide, Sage Publications, Inc., 1994 at pg. 261 2Stahl, P.M., Conducting Child Custody Evaluations: Comprehensive Guide, Sage Publications, Inc., 1994, at pg. 55 3Stahl, P.M., Conducting Child Custody Evaluations: Comprehensive Guide, Sage Publications, Inc., 1994, at pg. 56 4Stahl, P.M., Conducting Child Custody Evaluations: Comprehensive Guide, Sage Publications, Inc., 1994, at pg. 57 5Delisle, R.J., Evidence: Principles Problems, 5th Ed., 1999 Thomson Canada Limited at p. 643 6Delisle, R.J., Evidence: Principles Problems, 5th Ed., 1999 Thomson Canada Limited at p. 643 Chayko Gulliver, Forensic Evidence in Canada, Canada Law Book, 1999, pg. 19. Stahl, P.M., Conducting Child Custody Evaluations: Comprehensive Guide, Sage Publications, Inc., 1994, at pgs. 149 150 Stahl, P.M., Conducting Child Custody Evaluations: Comprehensive Guide, Sage Publications, Inc., 1994, at pgs. 147 148 10 Doherty, M.P., The Portable Guide to Evidence, Thomson Canada Limited, 2001, at pg. 53 11 Doherty, M.P., The Portable Guide to Evidence, Thomson Canada Limited, 2001, at pg.

The Agency applied for the permanent care of four young children, aged 2 to 5 years. The three youngest children had been in the Agency's temporary care and the oldest child had been in the supervised care of her paternal grandparents. The family had come to the Agency's notice due to problems with money, food shortage and housing. Despite several years of assistance from a Family Skills Worker and Parent Aid, concerns remained as to the mother's willingness and ability to care for her children. The oldest child had continuously moved between her biological father's home (which was often with the mother) and her paternal grandparents. The biological father had custody of her at the present time. The paternal grandparents wanted custody of both the oldest and youngest children, whom they believed to be their son's children. Application granted; the oldest child to be placed in the supervised care of her paternal grandmother and the biological father is not to live in that home; both parents can have supervised carefully monitored access to that child (if access is not exercised by either party, that access will be terminated); the three youngest children are to be placed in the permanent care of the Agency for the purposes of adoption with both parents' access to these children to be weaned. Access between all four children will continue at least until it becomes impossible due to the current adoption law in the province. Although the expert evidence presented by the Agency was rejected due to its apparent lack of objectivity and the fact that the experts appeared biased by their access to the entire Children's Aid file which contained numerous unproven allegations, the court found that despite extensive remedial measures provided to the family, all four children would be at risk of harm if returned to either parent due to an environment of absence of necessities, multiple moves, one child having witnessed physical violence, medical needs not having been met, basic hygiene not having been met and basic supervision and safety concerns not having been met. The father failed to either protect the children or provide the necessities for them. Both parents were not willing to accept input from any professional. Neither parent could, nor wished to, change in the foreseeable future.

b_2003nssf19.txt

Q.B.C.N.J. A.D. 1999 No. 28 J.C. R. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF REGINA BETWEEN: HER MAJESTY THE QUEEN and GERALD KELVIN DOTY M.T. Beaton for Her Majesty the Queen J.T. Schuck for Gerald Kelvin Doty JUDGMENT KRAUS J. June 29, 1999 [1] The central issue is identity. [2] The accused wrote letter to fellow inmate within one month of the trial. The text of the letter is as follows: ALEX Hey Dude! How are you? I'm fine. DOTY here... [two paragraphs of personal irrelevant information deleted] So I'm up to 200 lbs, lift weights everyday. Read lots....this doing time is hard on Remand. Remand is different than population. Remind is kinda hard time. may as well get to the point ... I'm charged with armed robbery ... and I'm trying to find an alibi. witness to tell them was at Eureka Club. 1st I'll say, really don't think you'll want to do this, certainly don't expect you too, and if you don't, absolutely no hard feelings. Could you just hear me out before you decide...? Why am asking you? Well honestly, don't have no friends. I'm totally on my own here. wrote another letter to you (but never sent it) trying to explain how my life ended up this way. No family, no friends. But this other letter sounded to much self pity. guess I'm tryin[sic] to figure out for myself why don't have any close friends. should tell you, these letters are safe, no one reads them. But they open in-coming mail, but usually don't read it. Well don't hardly ever us[sic] the phone, haven't had canteen service since got here. Lost my car last year, my oldest boy won't talk to me, the other kids are in foster care ... are you buttered up yet? I've been here since Feb 5/98 except weeks last summer and also weeks last Christmas. Last fall got charged for armed robbery, this robbery happened last summer (July 18). The Jan 14 got charged for another armed robbery which occurred Jan 8/99. already beat this last one not guilty (Jan 8) so still got this one from last summer. It was DOMO gas station that got robbed. should be able to prove my innocent's[sic], but its close. The robbery happened 10:00 p.m. SATURDAY July 18. On Sept 25/98 someone told cops did it, but cops never took photo line up to gas jockey's[sic] until November. One gas jockey picked my picture and said it was me. The other gas jockey never picked no picture. At my Preliminary Hearing neither gas jockey picked me out (in court room). The only other evidence they have is ... they (cops) say they found motorcycle matching description of one used for this robbery, they found it 2-3 blocks from my apartment. So they really have weak case ... but if judge thinks one gas jockey picking my picture out of photo line up is enough to convict me guilty, I'll get years PEN TIME ... So what I'm asking is ... would you be willing to testify TESTIFY that you seen me at Eureka Club, all night, from 9:00 p.m. 1:00 p.m., Saturday July 18 ... then sometime Sunday talked to you and you remember was really down because July 19 is my littlest boys birthday. was down because LUKE is in Foster Care and couldn't see him on his birthday. This is how you'd remember July 18 at Eureka, the day before Lukes[sic] birthday. We could fill in the blanks, or get our story straight, my trial isn't until June 9. Because I'm writing all this doesn't mean expect you to do this. understand its scary thing and its hassle. I'll still respect and like you if you say no. wrote Sandy Weisgerber letter asking the same and asked JOE ROSS (if you know him) if he would. Joe said he would but he never showed up at my pre-trial conference so can't trust him to show up at my trial. The cops or Crown prosecutor don't know anything about any of this. told my lawyer was at Eureka and am trying to find someone to testify. Before my pre-trial conference told my lawyer Joe Ross might show up ... but he never. Sooooo Also understand, know what I'm doing. know the system. would never ask unless was 100% sure it was safe for you. Its fool proof. For thing Crown has to tell my lawyer all there[sic] evidence before trial, so if somehow Crown could proof[sic] wasn't at Eureka, or you weren't at Eureka, they'd have to tell my lawyer. Remember this was last summer. already phoned Eureka to make sure there was dance that night. There was. There's just nothing that could go wrong. Theirs[sic] the moral issue, but man I've seen cops lie so many times, I've seen the prosecutors lie ... this system sucks. For you it would be ... say you call my lawyer and tell him you'll be witness. Then he has to notify prosecutor, sometimes they'll send cops to take statement from you. I'm not sure if you have to or not. But my lawyer said you don't have to have given statement to testify at trial. So this could be hassle or stress. The cops coming to your house. But you don't have to answer the door. Other than this when you go to court you'd have to wait outside court room till your turn to testify. figure you'd be on the stand about 15-20 minutes. If prosecutor even asked you any questions they'd want to know how you remember this Saturday night, and how can you be sure never left and came back, and did we talk or sit together ... But my lawyer would ask questions 1st and after he asked you all the questions, usually, the prosecutor doesn't ask questions (like in this case) because my lawyer already asked all the questions. could get my lawyer to make it so you don't have to wait outside court room to long. Sometimes witness's have to wait an hour or more. My lawyer keeps telling me to get an alibi (witness). He would help you. If it happens Crown wants statement my lawyer could probably set up time so you could be expecting cops. can't thing of nothing else of importance. Alls[sic] can say is ... If you do this, MAN would appreciate it. would give you my clothing advance I'd get from welfare, thats[sic] 200$ or 250$ ÷2 100$ or 125$. give you my word I'd give this to you. No problem. Compared to over yrs in jail, 100$ is nothing. If it'd[sic] make difference I'd give you more. Like if you'd do it for 500$ please tell me, cause if you could give me months to pay you (in payments) I'd peice[sic] you off, would too. just gotta get job, and will. There's chance oil rigs will start up, then could pay 1st and 2nd check (250$ each). Well, they have weak case, but, this asking you is something had to do, just had to try. Sandy never got back to me and wrote her about wks ago so guess she doesn't want to. If Joe would sow up then you wouldn't have to take the stand. Well, old feller, I've run out of paper. Please don't let any of this stress you out. And no hard feelings if you don't want too[sic]. Gerald Doty If you'll do this just call my lawyer, then I'll give you call. he's not legal aid he's private court appointed My lawyer is Joe Schick 565-5163 [I have added emphasis] [3] admitted this letter into evidence following voir dire. The defence had applied to exclude the letter on the basis that it was obtained by an unreasonable search or seizure and thereby violated the right of the accused under s. 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. [4] Does the letter admit fact which is against the accused's interest? Or is the letter exculpatory? Or are parts of the letter admissions of fact against the interest of the accused and other parts of the letter exculpatory? What is the evidentiary value of the whole of the letter? [5] The accused expressly said in his letter: He is charged with armed robbery. He is trying to find an alibi. He is seeking a witness to testify that he was at the Eureka Club on the date and at the time of the robbery. The accused says that he should be able to prove his innocence, but it is close. He proposes to the potential witness that they "could fill in the blanks and get our stories straight". He says that if the Crown can prove that he was not at the Eureka Club or that the proposed witness were not at the Eureka Club, the Crown would have to give disclosure to the defence. He acknowledges that he is requesting the proposed witness to lie, but justifies it on the rationale that "cops lie so many times" and "the prosecutors lie ... this system sucks". He coaches the proposed witness by suggesting that the prosecutor may ask how he would be able to remember this particular date and whether the accused was always in the presence of the proposed witness throughout the evening. The accused offers to pay the proposed witness for his proposed testimony. He refers to another potential witness who has not responded to his request to give evidence but says that if that other witness were to appear at trial, then the witness to whom this letter were addressed would not be required to testify. [6] Of course, the letter is not an alibi — it is an attempt to induce a potential witness to fabricate an alibi. If it were an alibi, the requirements set out by the Supreme Court of Canada in R. v. Cleghorn (1995), 1995 CanLII 63 (SCC), 100 C.C.C. (3d) 393 would apply that is, it must be given in sufficient time to permit the authorities to investigate and it must be given with sufficient particularity to enable the authorities to meaningfully investigate. Furthermore, when alibi evidence is offered at trial, the trial judge has the opportunity to weigh and assess the alibi evidence in light of all of the other evidence, and to assess credibility. As well, the trial judge then has the benefit of guidance from the jurisprudence of making distinction between disbelief of the alibi or proof of its falsity the distinction being that if the trial judge disbelieves the alibi, it is treated as if it had not been given, whereas proof of falsehood leads the trial judge to an inference of guilt. [7] I do, however, draw an adverse inference against the accused by his attempt to induce a potential witness to fabricate an alibi by perjury. do not view the accused's letter as an attempt by an innocent man to protect himself against wrongful conviction by system that is skewed by police and prosecutorial misconduct (as stated by the accused in his letter). I am convinced beyond a reasonable doubt that the purpose of the accused in formulating his letter was not to insure himself against the prospect of wrongful conviction, but to induce perjured evidence for his benefit in order to discredit the identification evidence adduced at the preliminary inquiry. That portion of his letter "so if somehow Crown could proof[sic] wasn't at Eureka, or you weren't at Eureka, they'd have to tell my lawyer" leaves me in no doubt about the intentions of the accused nor in any doubt about his whereabouts at the time of the robbery. His letter is direct evidence that he was not at the Eureka Club at the time of the robbery and is corroboration for the identification evidence of Robert Hanson. [8] The adverse inference which have drawn against the accused is independent evidence which corroborates the evidence of Mr. Hanson. make this connection corroboration as matter of common sense. adopt the reasoning of Mr. Justice de Grandpré in R. v. Warketin, Hanson and Brown (1976), 1976 CanLII 190 (SCC), 30 C.C.C. (2d) (S.C.C.) wherein he said at p. 16: Corroboration is not word of art. It is matter of common sense. In recent years, this Court has repeatedly refused to give narrow legalistic reading of that word and to impose upon trial Judges artificial restraints in their instructions to juries or to themselves... He later observed at p. 18-19: This treatment of corroboration as matter of common sense, the purpose of which is to ensure that no conviction will be entered if there is reasonable doubt as to the guilt, is not restricted to Canada. It is sufficient for my purpose to refer to two recent decisions of the House of Lords, namely: Director of Public Prosecutions v. Hester, [1972] All E.R. 1056, and Director of Public Prosecutions v. Kilbourne, [1973] All E.R. 440. From the headnote of this last case, extract two sentences: The word "corroboration" had no special technical meaning; by itself it meant no more than evidence tending to confirm other evidence. No distinction could, therefore, be drawn between evidence which could be used as corroboration and evidence which might help the jury to determine the truth of the matter. [9] I view the evidence of Mr. Hanson to be direct evidence to prove the accused\'s identity, and the accused\'s letter is corroborative evidence of such a nature that leads me to a reasoned conclusion that Mr. Hanson correctly identified the accused in the photo ID line-up. Mr. Hanson testified that he was visited by the robber on two occasions, first in the early evening when he drove to the service station on his motorcycle. Mr. Hanson had an opportunity to look at his face on that occasion; he was wearing helmet with no visor or mouth guard. That occasion was remarkable because the motorcyclist dismounted his motorcycle and asked Mr. Hanson few questions, including whether he had telephone, but did not purchase anything. few hours later, the same motorcyclist reappeared, dismounted the same motorcycle at the same location and ordered some cigarettes and chips. While Mr. Hanson was filling the order, the motorcyclist appeared with knife in his right hand which was pointed at Mr. Hanson's stomach. The robber demanded money; Mr. Hanson complied. Mr. Hanson asked him why he was doing it; to which the robber replied "desperate". Mr. Hanson observed the robber's face, knife and clothing, and testified that it was important to "get description of the individual". As soon as the robber left, he called the police. He judged the robber to be between 5'7" and 5'9" in height, with blue eyes which were bloodshot, wearing cut-off tee shirt (grey) and jeans. He testified that the robber's hair was blonde/reddish. He did not notice scar on the arm of the robber but said that he would not have noticed it in the circumstances. [10] It is understandable that Mr. Hanson did not observe the scar on the accused's arm in those frightful circumstances since his attention was directed primarily on the robber's face and knife. Mr. Hanson testified that there were not lot of customers that evening. Subsequently, on November 4, 1998, Mr. Hanson was shown photo ID line-up by Sergeant Smith of the Regina City Police who telephoned earlier to advise that he would be attending. Mr. Hanson testified that Sergeant Smith said that the police had someone who they thought had committed the crime, although Sergeant Smith was careful to instruct Mr. Hanson not to jump at anything and cautioned him that the person may not be in the line-up. Indeed, the photographic line-up instructions were entered as Exhibit P-2; both Mr. Hanson and Sergeant Smith testified that there were no other instructions or suggestions given to Mr. Hanson who signed the declaration to that effect on Exhibit P-2 which also indicated that he had read over the following instructions, namely: 1. The person who committed the crime may or may not be in the group of photographs. 2. You are in no way obliged to select anyone. 3. Study each photograph carefully before making any comments. Consider that the photographs could be old or new, that hairstyles change and that persons can alter their appearance by growing or shaving facial hair. [11] Mr. Hanson readily identified the accused's photograph from the photo ID line-up which consisted of eight photographs in total and he commented on the instruction sheet "The face is the one that remember". These photographs are black and white and obviously do not show hair and eye colour. The photo ID line-up shown to Mr. Hanson does not contain the names and dates of anyone in the line-up or any other particulars and is produced by digital system which has been used by the police service for long time. Sergeant Smith testified that he utilizes the black and white photos in order to make it more difficult for witnesses. [12] The day following his interview with Mr. Hanson, Sergeant Smith attended at the Provincial Correction Centre to arrest the accused and noted that he matched the initial description given by Mr. Hanson to the police at the time of the robbery. During cross-examination, Sergeant Smith testified that he received the file approximately two months after the robbery and that he could be characterized as the investigating officer at the time he prepared the photo ID line-up. Sergeant Smith and Mr. Hanson are credible witnesses and am satisfied that the integrity of the identification system employed was maintained. Sergeant Smith showed the photo ID line-up to Mr. Hanson's girlfriend who was also in the small kiosk at the time of the robbery. She was behind Mr. Hanson who was standing between her and the robber. Although she had clear view of the robber, am certain that her opportunity for observation of his facial features was less than that of Mr. Hanson who had seen the robber approximately two hours previously. In any event, she did not pick out the accused from the photo ID line-up take that as being supportive of the integrity of the identification system employed by Sergeant Smith but do not attach any great importance to her evidence because of the circumstances of the robbery. [13] Neither Mr. Hanson nor his girlfriend were able to identify the accused at his preliminary inquiry or at his trial. At trial, the accused was clean shaven but the defence photograph taken within one month of the trial shows him with prominent mustache slightly reddish. The black and white photograph identified by Mr. Hanson shows the accused without mustache. Mr. Hanson reported to the police, at the time, that the robber had mustache. take Mr. Hanson's girlfriend's failure to identify the accused as evidence supportive of the integrity of the system. Considering and weighing the evidence of the description of the robber given by Mr. Hanson and his girlfriend to the police at the time, the evidence related in court by each of those witnesses, the photograph of the accused identified by Mr. Hanson in the photo ID line-up, the photograph of the accused tendered as defence evidence, and the appearance of the accused in court (no mustache), have no reasonable doubt that Mr. Hanson identified the accused as being the robber. [14] In assessing the evidence of Mr. Hanson, am satisfied that he looked at the accused directly and without obstruction for period of several minutes at very close distance. There was nothing which obstructed his view nor was there anything else which was happening at the time which my have distracted him except, obviously, for the holding of the knife by the accused and Mr. Hanson's compliance with his instruction to give him money. Mr. Hanson appears to have good eyesight and memory. Mr. Hanson immediately notified the police on the telephone and gave good description of the accused. During the course of his testimony at the preliminary inquiry and at the trial, Mr. Hanson did make some change to the description of the accused but it was not significant. Mr. Hanson's girlfriend gave similar description but she was unable to identify the accused from the photo ID line-up some three and one-half months after the robbery. attach more weight to Mr. Hanson's evidence since he had an opportunity to observe the accused prior to the robbery when the accused first came to the gas station approximately two hours before the robbery. On that occasion, the accused acted out of the ordinary and Mr. Hanson recalls the conversation with the accused at that time in detail. During the robbery, Mr. Hanson and the robber were face to face. Mr. Hanson did not see photograph of the accused before he made the identification of the accused in the photo ID line-up and am satisfied that his selection of the accused from the photo ID line-up was from his memory of the person who committed the offence. [15] During able cross-examination of Mr. Hanson, he did admit certain discrepancies in his evidence at trial from previous evidence at the preliminary inquiry, but am satisfied that the discrepancies were minor in nature and did not affect the central issue of the identity of the accused. For example, Mr. Hanson testified that the accused was not wearing glasses at the time of the robbery whereas at the preliminary inquiry he said that he could not remember. Also, during cross-examination, Mr. Hanson agreed that his memory was not as good at the time of the photo ID line-up as it was at the time of the robbery but he added that "you don't forget face like that". And yet he did not identify the accused who was in the prisoner's docket at the preliminary inquiry and at trial (having been remanded in custody). The accused did not have mustache at trial, but he did not have mustache in the photo ID line-up either. do not find Mr. Hanson's failure to identify the accused at the preliminary inquiry (eight months after the robbery) nor at trial (eleven months after the robbery) to be reason to suspect or reject his evidence that he identified the accused in the photo ID line-up three and one-half months after the robbery and gave an accurate description to the police immediately at the time of the robbery. However, this evidence does not stand alone and is buttressed and supported by the adverse inference which have drawn from the contents of the letter of the accused made within month of his trial. [16] have no reasonable doubt that the motorcyclist (on the first occasion), the motorcyclist on the second occasion, the robber, the person reported to the police at the time, and the person identified in the photo ID line-up by Mr. Hanson approximately three and one-half months thereafter, are the same person the accused. [17] In weighing the entirety of the letter, have concluded that it is tantamount to an admission by the accused that he was not at the Eureka Club at the time of the robbery, and that he attempted to manufacture an alibi by eliciting false testimony from potential witness. There is no other explanation in evidence for the purpose of the request for the false evidence to be given; the defence asserts that the accused, as an experienced criminal, knows that he may be wrongfully convicted unless he comes up with an alibi and, ergo, the intention of the accused was pure that is, to ensure that an innocent man would not be wrongfully convicted. The defence urges that the letter may be construed in that light. am satisfied that the sole reason for the intended fabrication was to deceive the court; there is no other express or inferred explanation in evidence. The admission by the accused that he was not at the Eureka Club at the time of the robbery, taken together with his knowledge of all of the circumstances of the offence and his plan to meet that evidence at trial by fabricating evidence, warrants an adverse inference against him which, together with the identification facts which have been proved, leads to the reasonable and just conclusion that the accused is the person who committed the robbery. have not drawn this inference with mathematical certainty, but am satisfied beyond reasonable doubt by all of the evidence that the accused is the perpetrator of the robbery, and that all of the other elements of the Indictment have been proven beyond reasonable doubt as well, that is, that the accused stole money from Domo Gas while armed with an offensive weapon. [18] Accordingly, I find the accused guilty as charged in the Indictment.

The accused is on trial for armed robbery and the central issue is identity. The Court admitted a letter into evidence in which the accused attempts to induce a potential witness to fabricate an alibi for him. HELD: Accused found guilty. The accused was correctly identified. The Court drew an adverse inference against the accused by his attempt to induce a potential witness to fabricate an alibi by. The Court was convinced beyond a reasonable doubt that the accused's purpose in writing the letter was not to insure himself against the prospect of wrongful conviction, but to induce perjured evidence for his benefit in order to discredit the identification evidence adduced at the preliminary inquiry. The letter is direct evidence of where the accused was not at the time of the robbery and is corroboration for the identification evidence of the Crown witness.

4_1999canlii12738.txt

S.C.C. No. 02287 IN THE SUPREME COURT OF NOVA SCOTIA APPEAL DIVISION Clarke, C.J.N.S.; Matthews and Chipman, JJ.A. BETWEEN: JAMES DOUGLAS HILTZ and HER MAJESTY THE QUEEN Respondent E. R. Saunders for the Appellant A. C. Reid for the Respondent Appeal Heard: December 10, 1990 Judgment Delivered: December 10, 1990 THE COURT: The appeal is allowed, the conviction is set aside and a new trial is ordered as per oral reasons for judgment of Chipman, J.A.; Clarke, C.J.N.S. and Matthews, J.A., concurring. The reasons for judgment of the Court were delivered orally by CHIPMAN, J.A.: The appellant appeals from his conviction following a trial in the Supreme Court before a jury on a charge that he:"did assault Richard MacKay, a Peace Officer, to wit: a Police Constable for the Town of Bridgewater, engaged in the execution of his duties contrary to Section 270(2)(a) of the Criminal Code of Canada." In the early morning hours of October 24, 1989, Constable MacKay of the Bridgewater Town Police and two other officers responded to call on LaHave Street in connection with disturbance. On arrival at their destination they found evidence of disturbance, and the occupants of the residence were very upset. Constable MacKay saw the appellant there and thought he recognized him as person who was wanted by the police. He testified that he knew that there were outstanding warrants for the appellant's arrest. When Constable MacKay asked the appellant his name, the appellant gave fictitious one. The officers then responded to another call from next door and following investigation there, Constable MacKay became certain that the appellant was person who was sought by the police. MacKay returned to the location of the first call and found the appellant in car. He told him that he was arresting him on warrant at the Bridgewater Detachment. He stated that this warrant was for assault causing bodily harm and that there was another warrant for property damage. The appellant was given his Charter rights to counsel and police warning. He was escorted to the police car at which point he engaged in verbal confrontation with one of the occupants of the second residence to which the police had been called. As Constable MacKay was getting the appellant into the police car, he suddenly kicked the constable hard in the abdomen just above the groin, knocking him off balance. The other officers eventually subdued the appellant who was then taken to the station and in due course charged with the two offences for which the warrants were issued and an offence arising out of the disturbance on LaHave Street. The appellant has raised number of grounds, only one of which need be dealt with. The appellant's counsel takes the position that the Crown failed to establish that Constable MacKay was engaged in the execution of his duty at the time of the assault, and that the trial judge improperly instructed the jury on this issue. It is not disputed that the Crown must, in order to establish that the officer was in the execution of his duty, prove that he was authorized to make the arrest in question. It is an essential ingredient of the offence charged that the. assault take place while the officer was exercising some power or performing some duty imposed on him either by common law or statute. See R. v. Corrier (1972), 1972 CanLII 1432 (NB CA), C.C.C. (2d) 461 at 464. Constable MacKay was clearly involved in the duty of investigating disturbance on LaHave Street. The Crown's position is that he was entitled to make this arrest, as he did, without warrant. Section 495(1)(c) of the Code provides: 495. (1) peace officer may arrest without warrant (c) person in respect of whom he has reasonable grounds to believe that warrant of arrest or committal, in any form set out in Part XXVIII in relation thereto, is in force within the territorial jurisdiction in which the person is found.” The only evidence about the arrest was that MacKay told the appellant that he was under arrest for assault causing bodily harm on warrant outstanding in the Bridgewater Detachment and that there was also warrant outstanding for him for property damage. He said that he knew the warrants were outstanding. The constable did not give evidence in so many words as to the grounds for his belief, if any, that the warrants met the requirements of s. 495(1)(c) of the Code. The warrants were not put into evidence at the trial. Constable MacKay also made it clear that he was not arresting the appellant with respect to the alleged assault by the appellant on one LeGay on the evening in question. The existence of reasonable grounds for belief as referred to in s. 495(1)(c) of the Code must be established as part of the Crown’s case. In Storrey v. R. (1990), 1990 CanLII 125 (SCC), 75 C.R. (3d) 1, Cory, J., speaking for the Supreme Court of Canada said at p. with respect to s. 450(1) of the Code (now s. 495(1)): “In summary, then, the Criminal Code requires that an arresting officer must subjectively have reasonable and probable grounds on which to base the arrest. Those grounds must, in addition, be justifiable from an objective point of view. That is to say, reasonable person placed in the position of the officer must be able to conclude that there were indeed reasonable and probable grounds for the arrest. On the other hand, 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." The issue whether the officer had the requisite grounds for belief was therefore one that the jury had to resolve. In giving his charge, the trial judge said: "So, you have two reasons you have evidence of two reasons for the arrest one being the assault on LeGay and the other being the arresting on the Warrants. That's in the evidence. There is no doubt that when Constable MacKay and the other officers were called to number 638 that they were answering complaint and that that was in the execution of their duty. It's for you to find that they were, but I'm suggesting to you that and you're not bound by my suggestion in any way that certainly, it's not difficult to find that they were in the execution of their duty in responding to that call. They were also within the execution of their duty in responding to the second call, and if you accept the evidence of Constable MacKay that he was arresting the accused for the assault on LeGay, then he was acting in the execution of his duty in making that arrest because he had evidence that there was an assault and under the law, I'm directing you that if he was arresting for that purpose, that under the law in these circumstances that it was proper arrest. I'm also suggesting to you, as far as the law is concerned, that if you were to find that he was arresting him on the Warrants that that also would be proper arrest. As far as the law is concerned, there are outstanding Warrants directed to peace officer in the territory. Generally, the territory is Nova Scotia and the order is directed to any peace officer in the province of Nova Scotia. Any peace officer has the right to make the arrest. Now, so if the reason was the outstanding arrests, it's still within the execution of his duty. That's the duty of the peace officer." In the first place, the evidence did not support the conclusion that Constable MacKay was arresting the appellant for an assault on LeGay. In the second place, it was not made clear to the jury that they must make the essential determination whether Constable MacKay had, in making the arrest, the reasonable grounds referred to in s. 495 of the Code. In the result, we believe that there was misdirection by the trial judge. Pursuant to s. 686(1)(a) and s. 686(2) of the Code, we allow the appeal and order a new trial. J.A. Concurred in: Clarke, C.J.N.S. Matthews, J.A. CANADA PROVINCE OF NOVA SCOTIA S.B.W. 1557 IN THE SUPREME COURT OF NOVA SCOTIA TRIAL DIVISION BETWEEN: HER MAJESTY THE QUEEN and JAMES DOUGLAS HILTZ (T‑R‑I‑A‑L) HEARD BEFORE: The Honourable Mr. Justice Nunn and Jury PLACE HEARD: Bridgewater, Nova Scotia DATE HEARD: May and 10, 1990 COUNSEL: C. Lloyd Tancock, Esq., for the Crown E.R. Saunders, Esq., for the Defence S.C.C. No. 02287 IN THE SUPREME COURT OF NOVA SCOTIA APPEAL DIVISION BETWEEN: JAMES DOUGLAS HILTZ and HER MAJESTY THE QUEEN Respondent REASONS FOR JUDGMENT BY: CHIPMAN, J.A. (Orally)

The appellant appealed his conviction for assaulting a police officer engaged in the execution of his duty. The police officer had responded to a call in connection with a disturbance during which the appellant assaulted a third person. Upon arriving at the scene the officer recognised the appellant as someone wanted by the police. The officer told the appellant that he was under arrest because of two outstanding warrants. The appellant assaulted the officer. The officer did not give evidence as to the grounds for his belief that the warrants met the s. 495(1)(c) Criminal Code requirement, i.e., that they were in a format set out in Part XXVIII and in force within the jurisdiction. In his charge to the jury the trial judge indicated that the arrest was for the assault against the third party and did not direct the jury to consider if the officer had reasonable grounds for believing that there were warrants outstanding. Allowing the appeal and ordering a new trial, that the evidence did not support the conclusion that the officer arrested the appellant for the assault on the third party and it was not made clear to the jury that they must make an essential determination if the officer had reasonable grounds as required in s. 495 of the Code, such that he was acting in the execution of his duty.

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E. J. Gunn NOVA SCOTIA COURT OF APPEAL Citation: Cape Breton (Regional Municipality) v. Nova Scotia (Attorney General), 2009 NSCA 44 Date: 20090508 Docket: CA 296232 Registry: Halifax Between: Cape Breton Regional Municipality Appellant Respondent on cross-appeal v. Attorney General of Nova Scotia Respondent Appellant on cross-appeal Judge: The Honourable Chief Justice Michael MacDonald Appeal Heard: February 2, 2009 Subject: Constitutional law; Justiciability of s. 36; Constitution Act, 1982; statutory interpretation; Practice; Application to strike; Nova Scotia Civil Procedure Rule (1972) 14.25 Summary: Section 36 of Canada’s Constitution Act, 1982 commits the federal and provincial governments to the principles of equalization and the redress of regional disparities. The Cape Breton Regional Municipality (“CBRM”) interprets s. 36 as representing commitment owed to municipalities and on this basis asserts that the Government of Nova Scotia has breached its commitment to the CBRM. It sought declaration to this effect from the Supreme Court of Nova Scotia. The Court struck the claim as disclosing no reasonable cause of action. The CBRM appeals to this Court. Issues: 1. What is the appropriate test for striking the CBRM’s claim? 2. Can s. 36 represent an actionable commitment for the benefit of the CBRM? Result: Appeal dismissed. 1. Such claims should be struck only if they appear to be “absolutely unsustainable” or “certain to fail”. Therefore, in the context of this appeal, the claim must survive unless the CBRM’s proposed interpretation of s. 36 offers no chance of success. 2. The commitment set out in s. 36 embodies an agreement among the provinces and the federal government following a comprehensive negotiation process. Therefore, while this commitment may be actionable at the instance of the negotiating parties i.e., the provinces and federal government, it cannot be considered actionable at the hands of municipalities such as the CBRM. In other words, the CBRM’s proposed interpretation of s. 36 offers no chance of success. This information sheet does not form part of the court’s judgment. Quotes must be from the judgment, not this cover sheet. The full court judgment consists of 34 pages. NOVA SCOTIA COURT OF APPEAL Citation: Cape Breton (Regional Municipality) v. Nova Scotia (Attorney General), 2009 NSCA 44 Date: 20090508 Docket: CA 296232 Registry: Halifax Between: Cape Breton Regional Municipality Appellant Respondent on cross-appeal v. Attorney General of Nova Scotia Respondent Appellant on cross-appeal Judges: MacDonald, C.J.N.S.; Oland and Fichaud, JJ.A. Appeal Heard: February 2, 2009, in Halifax, Nova Scotia Held: Appeal and cross-appeal dismissed per reasons for judgment of MacDonald, C.J.N.S.; Oland and Fichaud, JJ.A. concurring. Counsel: Neil Finkelstein and Catherine Beagan Flood, for the appellant Alexander Cameron, for the respondent Reasons for judgment: [1] Few would contest the fact that the Cape Breton Regional Municipality ("CBRM") is economically depressed. In large measure, the CBRM faults the government of Nova Scotia for failing to take appropriate steps to alleviate this disparity. It is especially troubled because the province receives equalization funds from Ottawa for this very purpose. It claims therefore that the province has breached what the CBRM views as constitutional commitment to properly distribute this federal funding. It sought declaration to this effect from the Nova Scotia Supreme Court. However, its application was struck summarily by Justice John Murphy, in Chambers, as disclosing no reasonable cause of action. The decision is reported at 2008 NSSC 111 (CanLII), (2008), 267 N.S.R. (2d) 21 The CBRM now appeals to this court. [2] For reasons that I will develop, I would dismiss this appeal. Simply put, the CBRM's claim is not sustainable because it is premised on purported constitutional obligation which, in this context, does not exist. [3] On March 29, 1982, the Canada Act, 1982, (U.K.), 1982, c. 11, received royal assent. It provided for the repatriation of Canada's Constitution including the incorporation of Canada's new Constitution Act, 1982, being Schedule to the Canada Act,1982, (U.K.), 1982, c. 11 (the "Act"), which in turn was proclaimed on April 17, 1982. Part III of the Act is entitled Equalization and Regional Disparities, and contains this single section (with relevant portions highlighted): Commitment to promote equal opportunities (1) Without altering the legislative authority of Parliament or of the provincial legislatures, or the rights of any of them with respect to the exercise of their legislative authority, Parliament and the legislatures, together with the government of Canada and the provincial governments, are committed to (a) promoting equal opportunities for the well‑being of Canadians; (b) furthering economic development to reduce disparity in opportunities; and (c) providing essential public services of reasonable quality to all Canadians. Commitment respecting public services (2) Parliament and the government of Canada are committed to the principle of making equalization payments to ensure that provincial governments have sufficient revenues to provide reasonably comparable levels of public services at reasonably comparable levels of taxation. [Emphasis added.] [4] In the CBRM’s submission, this provision represents legally enforceable constitutional commitment, because after all, it reminds us that by s. 52 of the same Act, "the Constitution of Canada is the supreme law of Canada". [5] Citing its region's patent economic disparity and the provincial government's purported failure to appropriately respond, the CBRM brought its application specifically for "declaration that the Government of Nova Scotia has breached its constitutional commitment in s. 36 of the Constitution Act, 1982". While this application is brought against the Government of Nova Scotia, the Attorney General is the named respondent. [6] Following the exchange of extensive pre‑hearing disclosure, the Attorney General applied to strike the claim as disclosing no reasonable cause of action. Specifically, the application was brought under then Nova Scotia Civil Procedure Rule (1972) 14.25 (now Nova Scotia Civil Procedure Rule (2nd Edition) 13.03)): (1) The court may at any stage of proceeding order any pleading, affidavit or statement of facts, or anything therein, to be struck out or amended on the ground that, (a) it discloses no reasonable cause of action or defence; (b) it is false, scandalous, frivolous or vexatious; (c) it may prejudice, embarrass or delay the fair trial of the proceeding; (d) it is otherwise an abuse of the process of the court; and may order the proceeding to be stayed or dismissed or judgment to be entered accordingly. (2) Unless the court otherwise orders, no evidence shall be admissible by affidavit or otherwise on an application under paragraph (1)(a). [E. 18/19] [Emphasis added.] [7] The Chambers judge ruled for the Attorney General, concluding that he had met the heavy burden required to summarily strike the claim. The judge concluded that, as framed, the claim was simply too vague: [58] In this case, without challenge to legislation, CBRM’s pleading does not raise reasonable cause of action. The Municipality does not create justiciable issue by referring in the claim to s.36 of the Constitution Act, when the commitments set out in that section do not alter the Nova Scotia Legislature’s right to exercise legislative authority. general attack on “government” action, alleging that the Nova Scotia regime is constitutionally deficient, is too vague basis for court to determine under s.52 of the Constitution Act that law “is inconsistent with the provisions of the Constitution.”...and “of no force or effect.” [8] We are now asked to reverse this decision. [9] The Attorney General also filed cross-appeal regarding one aspect of the judge’s order. Specifically, the judge directed that should his decision to strike the claim be reversed on appeal, he would retain jurisdiction to decide additional procedural issues. [76] This Court recognizes that if CBRM successfully appeals the decision to strike out its claim, the conversion application could require determination. Accordingly, the Order granting the Province’s motion to strike the proceeding will provide that, if an appeal from that decision is allowed, this Court will retain jurisdiction to decide whether the claim should be converted to an action. The submissions already made by the parties on the conversion issue can be considered by this Court in the context of any directive from the Court of Appeal. The Attorney General asserts that by striking the claim, the judge retained no further jurisdiction over the matter. DEVELOPING THE ISSUE The Parties’ Positions [10] Unfortunately, the parties cannot agree on the issues in this appeal. therefore will take some time to refine what in the end will be very narrow question. [11] The CBRM focuses on the justiciability of s. 36, asserting that it represents an actionable commitment. Its position is summarized in its factum: B. Section 36 of the Constitution Act, 1982 is Justiciable (i) CBRM’s Claim is Legal Claim Properly within the Judicial Role 34. Subsection 52(1) of the Constitution Act, 1982 provides: “The Constitution of Canada is the supreme law of Canada ...” Subsection 52(2)(a) specifically defines the “Constitution of Canada” as including the Constitution Act, 1982, of which s. 36 is part. Accordingly, when the commitments expressed in s. 36 were included in the text of the Constitution Act, 1982, they became legal justiciable issues as part of the supreme law of Canada. Indeed, even unwritten constitutional principles are justiciable. [12] On the other hand, although asserting that s. 36 is mere statement of aspiration and therefore not justiciable, the Attorney General identifies more fundamental issue. He focuses on the pleadings and asks whether the Chambers judge erred in striking the claim. Thus his factum submits: 20. The Attorney General Respectfully disagrees that the Appellant properly states the issue. The issue, rather, is whether the judge below erred in striking the Appellant's application for failure to disclose reasonable cause of action. In other words, the issue first and foremost is the Appellant's pleadings. The alternative issue is the justiciability of s. 36. [13] Of the two approaches, believe that the Attorney General is closer to the mark. Let me elaborate. [14] The thrust of CBRM's submission, both written and oral, is that, as opposed to mere statement of aspiration, s. 36 represents justiciable commitment on the part of the federal government and the provinces, enforceable at the instance of the CBRM. The issue for the Chambers judge was whether, pursuant to Civil Procedure Rule 14.25, CBRM\'s pleadings disclosed a reasonable cause of action. He concluded that they did not. The issue in the Court of Appeal is whether the Chambers judge committed an appealable error. Standard of Review [15] Let me now review the standard upon which we should review the judge’s decision. This is constitutional issue, involving the interpretation of s. 36 of the Act. The facts were not significantly in issue on the application to the Chambers judge or on this appeal. The normal standard on an application to strike is whether the judge erred in law leading to an injustice: Purdy Estate v. Frank, [1995] N.S.J. No. 243 (Q.L.) (C.A.), at para. 10. If the Chambers judge erred in law by striking the CBRM's claim, clearly that would be an injustice. So our effective standard of review is correctness whether the chambers judge erred in law in striking the CBRM's claim. [16] To further refine the issue, will next consider the applicable legal principles surrounding applications to strike and, in this regard, the heavy burden faced by the Attorney General, as an applicant for an order to strike. Rule 14.25- The Applicable Legal Principles [17] Rule 14.25 offers drastic remedy. It provides for an action to be dismissed summarily, thus denying litigants their “day in court”. Understandably, therefore, any defendant seeking such relief bears heavy burden. The Chambers judge would have to consider this claim at its highest, by assuming all allegations to be true without the need to call any evidence. Then even with this assumption, it must still remain "plain and obvious" that the pleadings disclose no reasonable cause of action. In Hunt v. Carey Canada Inc., 1990 CanLII 90 (SCC), [1990] S.C.R. 959 at p. 980, the Supreme Court of Canada, when considering the corresponding British Columbia provision: Thus, the test in Canada governing the application of provisions like Rule 19(24)(a) of the British Columbia Rules of Court is the same as the one that governs an application under R.S.C. O. 18, r. 19: assuming that the facts as stated in the statement of claim can be proved, is it "plain and obvious" that the plaintiff's statement of claim discloses no reasonable cause of action? As in England, if there is chance that the plaintiff might succeed, then the plaintiff should not be "driven from the judgment seat". Neither the length and complexity of the issues, the novelty of the cause of action, nor the potential for the defendant to present strong defence should prevent the plaintiff from proceeding with his or her case. Only if the action is certain to fail because it contains radical defect ranking with the others listed in Rule 19(24) of the British Columbia Rules of Court should the relevant portions of plaintiff's statement of claim be struck out under Rule 19(24)(a). [18] In following Hunt, our court has recently confirmed that in order to strike pleadings under Rule 14.25 (1)(a), they must appear to be either "certain to fail" (Sable Offshore Energy Inc. v. Ameron International Corp., 2007 NSCA 70 (CanLII) at para. 13) or "absolutely unsustainable” (CGU Insurance Co. of Canada v. Noble, 2003 NSCA 102 (CanLII) at para. 13). [19] In this appeal, the Chambers judge fully recognized this heavy burden facing the Attorney General: [13] CBRM's position that defendant must satisfy very high onus in an application to strike claim under Rule 14.25(1)(a) was not contested by the Province, and is correct. In Operation Dismantle v. The Queen, 1985 CanLII 74 (SCC), [1985] S.C.R. 441, the Supreme Court noted that proceedings challenged on the basis of failure to disclose reasonable cause of action should be dismissed only in "plain and obvious cases." (para.73) [14] The threshold that moving party must meet on an application to strike is very high. Such motion can only succeed in the clearest of cases, where it is plain and obvious or beyond reasonable doubt that there is no reasonable cause of action. [20] Furthermore, in the face of this burden, the CBRM reminds us that the justiciability of s. 36 represents an important issue of law that has yet to be judicially considered. It adds that courts should therefore be hesitant to summarily strike such claims. agree and, in fact, note the comments of Roscoe, J.A. in Sable, supra: [12] When statement of claim reveals "difficult and important point of law", it is generally desirable to allow the case to proceed to trial so that "the common law ... will continue to evolve to meet the legal challenges that arise in our modern industrial society.": Hunt v. Carey Canada Inc., supra at 990‑991. As Wilson J. put it in Hunt at 977: "The fact that the case the plaintiff wishes to present may involve complex issues of fact and law or may raise novel legal proposition should not prevent plaintiff from proceeding with his action." [21] The novel issue of law at play in this appeal involves the proper interpretation of s. 36 and, specifically, whether this provision represents an enforceable commitment by the Attorney General to the CBRM. Therefore, it explores the true meaning and purpose of s. 36 and, of course, on this the parties present conflicting theories. As noted, to the CBRM it represents an actionable commitment at the instance of the CBRM. To the Attorney General, it represents statement of aspiration that is unenforceable by municipal unit such as the CBRM. When considering these opposing positions, must remember that this appeal involves an order that struck the CBRM’s claim without hearing on its merits. Thus, at this early stage, it would not be enough for us to simply compare and then choose the proposed interpretation that we would prefer. That would be the wrong test in an application to strike. Instead we must stick to the “plain and obvious” test set out in Hunt by deciding whether the CBRM’s proposed interpretation has any chance of success, or whether it is at least worthy of consideration. If so, it should not be dismissed summarily. This was the approach taken by the Federal Court of Appeal in Laboratoires Servier v. Apotex Inc., 2007 FCA 350 (CanLII), and it is one that endorse. Specifically, Nadon, J.A., facing this same type of issue, concluded 34 At paragraph 39 of its written submissions, Apotex submits, rightly in my view, that "if the responding party has put conflicting interpretation 'worth considering', it is not plain and obvious that the claim will not succeed". Although it is clear the Motion Judge correctly understood the "plain and obvious" test enunciated in Hunt, supra, she did not answer the question of whether or not Apotex's proposed interpretation was "worth considering" or whether it had any chance of success. Rather, she reached her own conclusion on the disputed point of statutory interpretation. That, in my view, constitutes an error on her part. therefore turn to the issue of whether or not Apotex's proposed interpretation has any chance of success. [22] Our ultimate task then is to decide whether the CBRM’s proposed interpretation of s. 36 has any chance of success. To this end, in my analysis that follows will initially examine the pleadings with view to determining the exact nature of the relief sought. Then, with that backdrop, will address the true meaning and purpose of s. 36. ANALYSIS The Pleadings [23] Let me begin therefore with the details of the claim. [24] As noted, in its Notice of Application before the Supreme Court, the CBRM seeks: declaration that the Government of Nova Scotia has breached its constitutional commitment in s. 36 of the Constitution Act, 1982. [25] Highlighting what it views as the government’s dismal track record in distributing federal equalization payments, it further pleads: (e) CBRM has low fiscal capacity compared to other Nova Scotia municipalities; (f) residents of CBRM receive levels of public services that are significantly lower than the standard for Nova Scotia municipalities as whole and for regional municipalities and towns in particular; (g) despite these lower levels of service, CBRM’s residential and commercial tax rates are significantly higher than the provincial average and the average for other regional municipalities and towns; (h) Nova Scotia’s chosen means of distributing federal equalization monies across municipalities therefore falls well short of providing CBRM with sufficient fiscal capacity to provide comparable level of public services for comparable tax burden; (i) the Government of Nova Scotia has failed to fulfil its commitment to further economic development to reduce the disparity in opportunities between citizens of CBRM and of other Nova Scotia communities; (j) Nova Scotia is in breach of its constitutional commitments in s. 36 of the Constitution Act, 1982; [26] Recognizing the perils of asking court to tell an elected government how to spend its revenue, the CBRM expressly seeks no more than declaration: (k) declaration that the Government of Nova Scotia has breached its constitutional commitment in s. 36 of the Constitution Act, 1982 is an appropriate remedy that does not require that the court dictate to the provincial government how it should remedy the constitutional breach; the manner of compliance would appropriately be left to the provincial government. [27] In defending its quest for declaration, the CBRM elaborates in its factum: 71. The courts can issue declaration that provincial government has failed to meet its constitutional obligations without altering the province’s legislative authority or rights with respect to that authority. Thus, in Mahe v. Alberta, the Supreme Court of Canada held that the province had failed to provide the parents of minority language students with sufficient representation on school boards to satisfy the requirements of s. 23 of the Charter. However, the Court refused to strike down the relevant statute, holding: ... the right which the appellants possess under s. 23 is not right to any particular legislative scheme, it is right to certain type of educational system. What is significant under s. 23 is that the appellants receive the appropriate services and powers; how they receive these services and powers is not directly at issue in determining if the appellants have been accorded their s. 23 rights. ... For these reasons think it best if the Court restricts itself in this appeal to making declaration in respect of the concrete rights which are due to the minority language parents in Edmonton under s. 23. Such declaration will ensure that the appellants' rights are realized while, at the same time, leaving the government with the flexibility necessary to fashion response which is suited to the circumstances. 72. Similarly, the commitment in s. 36 is to provide reasonably comparable levels of services, not to provide them in specific manner. Accordingly, the legal issue for the Court to determine is whether the Province’s equalization regime, taken as whole, is sufficient to meet the “reasonably comparable” benchmark established by s. 36 of the Constitution. ... [28] Armed with such declaration, the CBRM therefore feels that it could then negotiate an appropriate settlement with the province. For example, Professor Kent Roach in Constitutional Remedies in Canada, (Aurora: Canada Law Book, 2006) highlights the merits of such strategy at pp. 15-28: Declarations concerning the general nature of constitutional rights allow the parties the flexibility to apply general constitutional principles to local circumstances. In Mahe v. Alberta, the Supreme Court of Canada recognized that declarations of general constitutional rights were appropriate in dealing with minority language rights which, like aboriginal rights, require fact-specific, community-by-community determination of their precise scope and content. Declarations of aboriginal rights, like declarations of minority language rights, may require positive governmental action such as the provision of enabling legislation and resources. Negotiations between governments and the communities intended to benefit from the rights will often be necessary to determine the best means to implement the general principles of the declarations. In Reference re: Public Schools Act (Man.), Lamer C.J. stated that “[t]he participation of minority language parents or their representatives in the assessment of educational needs and the setting-up of structures and services which best respond to them is most important”. The purpose of aboriginal rights also supports consultation and negotiation about how to implement declarations of constitutional rights. [29] At this juncture, should note that the CBRM does not challenge any specific legislative provisions. Nor does it challenge any specific executive action. Without either, the Attorney General asserts that the claim is destined to fail. Therefore, he argues forcefully in his factum: 35. Provincial statutes control and direct the economic spending and economic policies of the Province. Yet none of these statutes are challenged by the Appellant. They are, accordingly, valid and presumptively constitutional provincial laws: Nova Scotia (Board of Censors) v. MacNeil, 1978 CanLII (SCC), [1978] S.C.R. 662, Hogg, Constitutional Law of Canada, Vol. 1, p. 15‑23; Vol. II, p. 38‑39. Pursuant to those laws spending and economic development policy is lawfully carried out. After all, taxation and expenditure are constitutionally the authority of the legislature. But, the Appellant seeks declaration that "the Government" has violated s. 36. With respect, one cannot, in the same breath, accept the legality of the legislation which dictates economic development policy, yet seek to declare that 'Government' is acting unlawfully in applying the such legislatively‑authorized policy. To challenge that policy requires challenge to the legislation. Absent such challenge, there is no justiciable issue. CBRM has not raised cause of action. 36. This is not to say that government action cannot be challenged constitutionally. Government action involves the exercise of discretionary statutory power, and the exercise of that statutory discretion can be alleged to be unconstitutional. The Supreme Court of Canada in Eldridge v. British Columbia, 1997 CanLII 327 (SCC), [1997] S.C.R. 624 confirmed, in Charter case, that the Charter could be infringed, "not by the legislation itself, but by the actions of delegated decision‑maker in applying it" (paras. 20, 21). Importantly, the Court's discussion of constitutional infringement by delegated statutory authority was tied explicitly to the legislation pursuant to which the delegated authority was exercised. But, the Appellant’s complaints respecting Departmental expenditures and public service employment reference nothing of the kind. There is no challenge to legislated funding. There is no challenge to particular statutory discretion. Rather, there is simply generalized complaint against "the Government" despite ample opportunities to particularize the pleading. This is, with respect, fatal. No law has been put in issue in respect of which justiciable claim is raised. No statutory discretion is identified in respect of which it is pleaded that it has not been properly exercised in CBRM's favour. In the result, then CBRM's proceeding must be struck. Neither the laws governing Departmental spending and public service employment have been challenged, nor have specific statutory discretions under these laws been impugned. No justiciable claim is raised. No cognizable cause of action is pleaded. The "claim" advanced is merely generalized expression of dissatisfaction respecting policies. [30] In summary, what then is the nature of the relief sought? In my view, the CBRM’s proposed declaratory relief contains these three elements: a. That s. 36 represents justiciable commitment on the part of the province (as opposed to being merely an unenforceable statement of aspiration). b. That this justiciable commitment is owed to and enforceable by the CBRM. c. That this commitment has been breached. [31] In my view, it is the second element justiciable commitment to and enforceable by the CBRM that is the key to resolving this appeal. Let me elaborate. [32] In advancing its position, the CBRM concentrated almost exclusively on the first element whether s. 36 was justiciable per se. Respectfully, this misses the mark. As will detail below, s. 36 may indeed be justiciable in certain contexts. However, the more challenging question for the CBRM involves the second element whether any such commitment would extend to the CBRM. [33] As for the third element the breach this would be assumed in the context of an application to strike. In other words, if s. 36 represents an actionable commitment to the CBRM, we would, for the purpose of this application to strike, assume all pleadings to be true and therefore assume that the commitment had been breached. [34] Therefore the key to this appeal is not whether s. 36 is justiciable per se, or even whether the CBRM’s allegations against the government have merit. The key is whether s. 36 represents justiciable commitment to the CBRM. [35] Having identified the exact nature of the claim, now turn to the proper interpretation of s. 36. Interpreting Section 36 [36] The Supreme Court of Canada had endorsed the “modern approach” to statutory interpretation as expounded by Elmer Driedger, Construction of Statutes, 2nd ed. (Toronto: Butterworths, 1983) at p. 87: ... the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. See Re Rizzo and Rizzo Shoes Ltd., 1998 CanLII 837 (SCC), [1998] S.C.R. 27 at 41; Canada (House of Commons) v. Vaid, 2005 SCC 30 (CanLII), [2005] S.C.R. 667; and Imperial Oil Ltd. v. Canada; Inco Ltd. v. Canada, 2006 SCC 46 (CanLII), [2006] S.C.R. 447. [37] It is suggested by some that this approach is no more than an amalgam of the three classic rules of interpretation: the Mischief Rule dealing with the object of the enactment; the Literal Rule dealing with grammatical and ordinary meaning of the words used; and, the Golden Rule which superimposes context. See Stéphane Beaulac Pierre-Andre Côté in Driedger’s “Modern Principle” at the Supreme Court of Canada: Interpretation, Justification, Legitimation (2006), 40 Thémis 131-72 at p. 142. [38] In any event, as Professor Ruth Sullivan explains in Sullivan on the Construction of Statutes, 5th ed. (Markham: LexisNexis Canada Inc., 2008) beginning at p. 1, this modern approach involves an analysis of: (a) the statute's textual meaning; (b) the legislative intent; and (c) the entire context including the consideration of established legal norms: The chief significance of the modern principle is its insistence on the complex, multi-dimensional character of statutory interpretation. The first dimension emphasized is textual meaning. ... second dimension endorsed by the modern principle is legislative intent. All texts, indeed all utterances, are made for reason. Authors want to communicate their thoughts and they may further want their readers to adopt different views or adjust their conduct as result of the communication. In the case of legislation, the law-maker wants to communicate the law that it intended to enact because that law, as set out in the provisions of statute or regulation, is the means chosen by the law-maker to achieve set of desired goals. Law-abiding readers (including those who administer or enforce the legislation and those who resolve disputes) try to identify the intended goals of the legislation and the means devised to achieve those goals, so that they can act accordingly. This aspect of interpretation is captured in Driedger’s reference to the scheme and object of the Act and the intention of Parliament. third dimension of interpretation referred to in the modern principle is compliance with established legal norms. These norms are part of the “entire context” in which the words of an Act must be read. [39] That said, applying these dimensions is often easier said than done. Professor Sullivan elaborates at p. 3: The modern principle says that the words of legislative text must be read in their ordinary sense harmoniously with the scheme and objects of the Act and the intention of the legislature. In an easy case, textual meaning, legislative intent and relevant norms all support single interpretation. In hard cases, however, these dimensions are vague, obscure or point in different directions. In the hardest cases, the textual meaning seems plain, but cogent evidence of legislative intent (actual or presumed) makes the plain meaning unacceptable. If the modern principle has weakness, it is its failure to acknowledge and address the dilemma created by hard cases. [Emphasis by author] [40] Thus in considering whether s. 36 applies to the facts of this case, Professor Sullivan would invite us to answer three questions: Under the modern principle, an interpreter who wants to determine whether provision applies to particular facts must address the following questions: what is the meaning of the legislative text? what did the legislature intend? That is, when the text was enacted, what law did the legislature intend to adopt? What purposes did it hope to achieve? What specific intentions (if any) did it have regarding facts such as these? what are the consequences of adopting proposed interpretation? Are they consistent with the norms that the legislature is presumed to respect? [41] Finally, in developing our answers to these three questions, Professor Sullivan invites us to apply the various “rules” of statutory interpretation: In answering these questions, interpreters are guided by the so-called “rules” of statutory interpretation. They describe the evidence relied on and the techniques used by courts to arrive at legally sound result. The rules associated with textual analysis, such as implied exclusion or the same-words-same-meaning rule, assist interpreters to determine the meaning of the legislative text. The rules governing the use of extrinsic aids indicate what interpreters may look at, apart from the text, to determine legislative intent. Strict and liberal construction and the presumptions of legislative intent help interpreters infer purpose and test the acceptability of outcomes against accepted legal norms. [42] Let me therefore now attempt to answer each of Professor Sullivan’s three questions with view to determining whether the CBRM’s proposed interpretation of s. 36 has any chance of success? What is the Meaning of the Legislative Text? [43] will start with the full text. Here again is the English version: EQUALIZATION AND REGIONAL DISPARITIES Commitment to promote equal opportunities (1) Without altering the legislative authority of Parliament or of the provincial legislatures, or the rights of any of them with respect to the exercise of their legislative authority, Parliament and the legislatures, together with the government of Canada and the provincial governments, are committed to (a) promoting equal opportunities for the well‑being of Canadians; (b) furthering economic development to reduce disparity in opportunities; and (c) providing essential public services of reasonable quality to all Canadians. Commitment respecting public services (2) Parliament and the government of Canada are committed to the principle of making equalization payments to ensure that provincial governments have sufficient revenues to provide reasonably comparable levels of public services at reasonably comparable levels of taxation. [44] Section 36, of course, should be read as coherent whole. But if, as CBRM submits, s. 36 affords commitment that is legally enforcable by CBRM in an action against the Province of Nova Scotia, the ultimate source of that actionable commitment can only be s. 36(1). will explain. [45] By its plain language, subsection (2) deals exclusively with commitments by Parliament and the government of Canada. Therefore, in my view, no measure of creative interpretation could possibly transform this provision into an obligation on the part of the provinces. agree that should subsection (1) be seen to support claim against the provinces, then subsection (2) might inform that analysis. However, any such claim would have to be rooted in subsection (1) and, therefore, my analysis will focus only on that subsection. [46] Returning then to the text of subsection (1), the key word, in my view, is "committed". This is an obvious indication of some responsibility on the part of Nova Scotia's government and legislature. But what is the nature of that responsibility? [47] There are two elements to this question that will address separately. They are: (a) whether s. 36 is justiciable per se; and (b) if so, whether the commitment is owed to, and enforceable by, the CBRM. Is s. 36 Justiciable Per Se? [48] Does “committed” merely connote statement of aspiration (i.e., to use one's best efforts) or does it mean something more as the CBRM asserts? Considered in isolation and applying ordinary parlance, both appear plausible. [49] For example, The Oxford English Dictionary succinctly identifies both options: committed having strong dedication to cause or belief... obliged (to take certain action). The Oxford English Dictionary, 2d ed., (2004) s.v. "committed" [50] Thus, by its plain meaning "committed" could, in appropriate circumstances, connote justiciable obligation. [51] That deals with the English version. Let me now turn to the French version which by virtue of s. 57 of the Act is equally authoritative [52] The equivalent key word used in the French version is the third person plural for the verb “s’engager”. Here is the full text: PÉRÉQUATION ET INÉGALITÉS RÉGIONALES Engagements relatifs l'égalité des chances (1) Sous réserve des compétences législatives du Parlement et des législatures et de leur droit de les exercer, le Parlement et les législatures, ainsi que les gouvernements fédéral et provinciaux, s'engagent a) promouvoir l'égalité des chances de tous les Canadiens dans la recherche de leur bien‑être; b) favoriser le développement économique pour réduire l'inégalité des chances; c) fournir tous les Canadiens, un niveau de qualité acceptable, les services publics essentiels. [Emphasis added.] [53] Like its English equivalent, the verb "s'engager" may also connote justiciable obligation as well as mere statement of aspiration. Here is the definition from the Grand Usuel Larousse with the two relevant options highlighted: s’engager v. pr., être engagé v. pass. 1. Se loger dans un lieu étroit, qui retient: Le tenon s’engage dans la mortaise. 2. Entrer, avancer, pénétrer, se trouver dans une voie, un passage: Le train s’engage dans le tunnel. 3. Entreprendre une action, participer; se lancer: S’engager dans des négociations difficiles. 4. S’inscrire une compétition: Vingt coureurs sont déjà engagés dans la course. 5. Se mettre dans une situation où on aura faire des dépenses, des frais. 6. En parlant d’une action, commencer: L’affaire est mal engagée. 7. Prendre nettement position, en partic. sur des problèmes politiques, sociaux, économiques (to clearly take position, in particular on political, social or economic problems). 8. Choisir telle voie, commencer entre-prendre telles études, etc. 9. Contracter un engagement; (To contract commitment). Grand Usuel Larousse: dictionnaire encyclopédique, ed mise jour (Paris: Larousse, 1997) s.v. "s'engager" (Emphasis added) [54] Thus, in either the English or French version, the key verb "commit/s’engager" can grammatically support the CBRM’s proposed interpretation that s. 36 is generally justiciable, at least when that word is considered in isolation. If there is Justiciable Commitment, is it commitment to the CBRM? [55] To answer this, let me extend my analysis of the legislative text by considering how the verb “committed” fits first in the context of s. 36 generally, and then in the context of the Act generally. [56] Firstly, consider the nature of the three commitments contained in s. 36(1) (a) promoting equal opportunities; (b) furthering economic development; and, (c) providing essential public services. These vague standards are inconsistent with the notion that an individual, or municipal unit representing individuals, is accorded an enforcable cause of action. Rather, the wording supports the interpretation that s. 36 represents the terms of an agreement among federal and provincial governments, and s. 36(1)\'s standards establish the ambit of those terms of agreement. Later will return to this interpretive approach. The same can be said for the French version. [57] Furthermore, the heading under which particular provision falls can be instructive. See Law Society of Upper Canada v. Skapinker, 1984 CanLII (SCC), [1984] S.C.J. No. 18 (Q.L.). Here, s. 36 falls under the heading "Part III Equalization and Regional Disparities". If s. 36 were meant to grant justiciable legal rights as the CBRM contends, would one not expect to find the word "rights" in the heading as was done in the two preceding headings: “Part Canadian Charter of Rights and Freedoms” and “Part II Rights of Aboriginal Peoples of Canada” (“droits” in the French version)? [58] If, as the CBRM submits, s. 36 granted an enforcable right, actionable by municipality, one would expect s. 36 to name the beneficiary who has that constitutional right. For instance, s. begins with "Everyone has the following fundamental freedoms...". Section begins "Every citizen of Canada has the right...". Sections 7‑10 begin "Everyone has the right...". Section 11 says "Any person charged with an offence has the right...", and similar wording asserts the rights and names the beneficiaries in ss. 12‑14. Section 15(1) opens "Every individual is equal before and under the law and has the right...". Sections 17, 19 and 20 expressly state their language rights and expressly identify the beneficiaries of those rights, as do the opening words of ss. 23(1) and (2) for minority language rights. Then s. 24(1) authorizes an actionable remedy to "[a]nyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied ...". Outside the Charter, s. 35(1) expressly affirms the existing "rights of the aboriginal peoples". [59] When the Act intends to grant constitutional right to be enforceable in an action by an individual or group of individuals, the constitutional document defines the principle, describes it as right or freedom, and identifies the beneficiaries who could sue to enforce the right. Then we come to s. 36. There is no described or asserted right and no identification of beneficiary of any right. There is no mention whatsoever of municipal units like the CBRM. There is only statement that the commitments of provincial and federal governments are to promote opportunities, well‑being and reasonable public services of "Canadians". [60] The CBRM's submission necessarily assumes that s. 36(1)'s reference to "Canadians" means that any Canadian may sue under s. 36 to enforce his or her right to opportunity, well‑being and reasonable public service, and that the CBRM may sue as representative of those Canadians from the CBRM. If this assumption held, then any Canadian in Halifax, Toronto, Calgary, or elsewhere equally could sue. Then judge would undertake microeconomic analysis of government spending and taxation fairness and, if the plaintiff's claim is established, order that the government upgrade the individual's well‑being or opportunity or access to public services or, at least as requested in this application, declare that the government has breached its commitment. [61] In my respectful view, nothing in s. 36 supports the existence of such constitutional cause of action. Even the expressly assigned rights in ss. and 15(1) have been interpreted not to encompass state guarantee of minimum and constitutionally enforceable standards of living: Gosselin v. Quebec (Attorney General), 2002 SCC 84 (CanLII), [2002] S.C.R. 429, at paras. 82‑3, per McLachlin C.J.C. for the majority; Boulter v. Nova Scotia Power Corp., 2009 NSCA 17 (CanLII), at paras. 32‑44 and cases there cited. Section 36, containing no expressly defined and assigned right, cannot reasonably be construed to establish such an enforceable right by implication. [62] Rather, in my view, s. 36 codifies an agreement among the federal and provincial governments respecting the principles of equalization and the redress of regional disparities. The standards in paras. (a), (b) and (c) of s. 36(1), including the references to opportunities, well‑being and reasonable public services to Canadians, are the benchmarks of the commitments among the federal and provincial governments. Whether the federal or provincial governments could sue, or maintain justiciable cause of action, inter se for violation of these standards is not an issue in this appeal. So express no view on that matter. The point that is relevant here is that the constitutional privity to the agreement that is codified in s. 36 rests with the federal and provincial governments, not with individual Canadians or municipalities such as the CBRM. [63] Then there is the important qualifying phrase at the outset of s. 36: Without altering the legislative authority of Parliament or the provincial legislatures, or the rights of any of them with respect to the exercise of their legislative authority ... This alone, says the Attorney General, would pre‑empt any concept of justiciability. refer again to his factum: 69. The introductory language of s. 36(1) is important. It contains two significant caveats. The commitments set out in para. (a), (b), and (c) do not alter two things: 1. The legislative authority of Parliament or of the legislatures. 2. The rights of any of them with respect to the exercise of their legislative authority. 70. The "legislative authority" of the legislatures is broad language. It encompasses the unwritten doctrines of constitutional law, discussed earlier, that are "major elements of the architecture of the constitution and...its lifeblood" (Reference re Secession of Quebec at para. 51). Those include the authority of the legislature to "make or unmake any law whatever", (subject to the s. 91/92 division of legislative authority), to authorize government expenditure, and to raise taxes. The "rights" of legislatures "with respect to the exercise of their legislative authority" is equally broad language. It encompasses the legislatures' right to make law. It encompasses the legislatures' right to approve or not approve expenditures, to tax or not to tax, and to craft any type of law including laws granting or delegating discretions. All of this is unaltered by the "commitment" described in s. 36(1)(a), (b), and (c). To alter is to change. So the authority and rights of the legislature before the inception of s. 36(1) are unchanged. 71. To put it simply, all laws, including those related to expenditure and taxation, have been removed from the "commitment" in s. 36(1). Since justiciable issue is one that involves "the interpretation of law", "legal component", there is nothing left in s. 36(1)for this Court to adjudicate. There is no justiciable issue, and absent justiciable issue, there is no cause of action that attracts the jurisdiction of this Court. [64] Yet on this last point, the CBRM offers plausible counter point. It asserts that this qualifying introductory phrase may simply be an acknowledgment of the division of legislative powers set out in ss. 91 and 92 of the British North America Act, 1867, Constitution Act, 1867, (U.K.), 30 31 Vict., c. 3, reprinted in R.S.C. 1985, App. II, No. (“BNA Act”). In other words, nothing in s. 36(1) can be seen to limit the power of the federal government under s. 91 of the BNA Act nor the power of the provincial governments under s. 92. Further, the CBRM submits that “the rights of any of them with respect to the exercise of their legislative authority” in the prefix of s. 36(1) refers to legislative process and immunities, and does not protect the content of legislation. If the CBRM is correct on these points then it would be equally correct to submit that the verb “committed” must mean something more. In fact, as the CBRM correctly urges, all words in statute are presumed to be there for specific purpose. Professor Sullivan calls this the presumption against tautology: Governing principle. It is presumed that the legislature avoids superfluous or meaningless words, that it does not pointlessly repeat itself or speak in vain. Every word in statute is presumed to make sense and to have specific role to play in advancing the legislative purpose. ... ...every word and provision found in statute is supposed to have meaning and function. For this reason courts should avoid, as much as possible, adopting interpretations that would render any portion of statute meaningless or pointless or redundant. [65] All this said, come back to my initial observation that the word "committed" may indeed, in appropriate circumstances, represent an actionable obligation among the parties to the agreement that is being codified in s. 36, i.e., the federal and provincial governments, including, of course, the Province of Nova Scotia. In other words, such an interpretation is worthy of consideration. So would not strike the claim on the basis of injusticiability per se. As have stated earlier, and will reiterate, the claim should be struck because it is not cause of action belonging to the CBRM. [66] That deals with the meaning of the legislative text. Let me now turn to Professor Sullivan's remaining questions the law‑makers’ intention and the consequences should we endorse the Attorney General’s proposed interpretation. What did the Law‑makers Intend? [67] What then was the legislative intent of s. 36? An examination of the Act generally produces little guidance. It contains no objects clause. There is only one preamble and that is limited to “Part The Charter of Rights and Freedoms” and it is very general, referencing only the supremacy of God and the rule of law. [68] One thing is very obvious about the Act’s legislative history. It was the product of longstanding and comprehensive negotiations between the federal government and the provinces. With s. 36 being no exception, would therefore assume that the commitments set out in s. 36(1) were the product of compromise. In other words, they would have been offered by the two negotiating bodies (federal v. provincial governments) for each other’s benefit and in any event certainly not for the benefit of municipalities. This is in fact borne out by the authorities cited by the CBRM. Authorities cited by the CBRM [69] The limited evidence of legislative history that was summarized in the record for this appeal does not disclose any intent that the principles of s. 36 be actionable by individuals or municipalities. Rather, this evidence points to the view, discussed earlier, that s. 36 represented an agreement among the federal and provincial governments establishing the principles to govern the systems of equalization and redress of regional disparities. The justiciable rights, if any, belong to those governments, not to individuals or municipalities. [70] For example, the CBRM refers to work by Mr. Aymen Nadar, “Providing Essential Services: Canada’s Constitutional Commitment under S. 36" (1997), 19 Dal. L.J. 306. He summarizes the history of s. 36 as the product of numerous federal-provincial constitution conferences: c. History of s. 36 (1972-1982) Articles 46 and 47 of the Victoria Charter were redrafted five times (1975, 1978, 1979, 1980 and 1981) before their final version appeared as s. 36 of the Constitution Act, 1982. In substance, the provision remained the same from 1971 to 1982, with two significant exceptions: the addition, in 1979, of the precursor to the present subsection 36(2), and the abandonment of the ‘non-compellability’ clause. ... Then Nadar explains how the decade-long process culminated in an agreement on equalization payments that would become embodied in s. 36: In the midst and as result of, the existing atmosphere of tension, uncertainty and distrust between Ottawa and the provinces over federal transfer payments, subsection (2) of the provision on regional disparities was included for the first time for discussion at the Federal-Provincial First Ministers’ Conference, on February 6, 1979. This subsection reads: (2) Parliament and the Government of Canada are further committed to the principle of making equalization payments to the provinces that are unable to provide essential public services of reasonable quality without imposing an undue burden of taxation, or to the principle of making arrangements equivalent to equalization payments to meet the commitment specified in Section 96(1)(c). This pressure was redoubled in other fora on the Constitution. The provinces were determined to gain, inasmuch as possible, their guarantee for federal equalization payments. Finally, in the final months of negotiation, the federal government came as close to the province’s position as they would go. Speaking to the Special Joint Committee of the Senate and the House of Commons on the Constitution of Canada on January 12, 1981, then Minister of Justice, Jean Chrétien assented to the use of the term “equalization payments”: Both the Premiers Hatfield and Blakeney and many members of this Committee have made representations to the effect that Section 31(1) should state clearly that equalization payments must be made to provincial governments. am prepared to accept wording somewhat along the following lines: 31(2) Parliament and the government of Canada are further committed to the principle of making equalization payments to ensure that provincial governments have sufficient revenues to provide reasonably comparable levels of public services at reasonably comparable levels of taxation. The new provision was acceptable; and the amendment passed on January 30, 1981. It would remain virtually unchanged and become subsection 36(2) of the Constitution Act, 1982. Of importance in the history of s. 36 is the fact that subsection (2) did not belong to the provision until 1979, eight years after the original formulation of the section in the Victoria Charter. Nor had there been reason for the provinces to insist on it initially. Only after time had passed and economic pressures on the federal government had resulted in squeeze on provincial treasuries did the provinces become concerned. Numerous unilateral actions by the federal government to control the costs of open-ended programmes, and at least one attempt to restructure unconditional grants altogether, had led to an atmosphere of tension and distrust between the provinces and the federal government. Finally, the provinces had fought for an assurance, at the constitutional level, that equalization payments would continue. The present subsection 36(2) is the fruit of their combined efforts. [71] Furthermore, other constitutional scholars who have studied the legislative history of s. 36 offer no consensus on its intent. Some feel that the commitments may be generally justiciable while others say that they are not. However, none suggest that they represent justiciable commitments to outside players such as municipalities. [72] For example, Professor Peter W. Hogg in Constitutional Law of Canada, 5th ed. (looseleaf) (Toronto: Carswell, 2007) at p. 6-10, sees s. 36 as no more than statement of aspiration and likely not enforceable by anyone in court of law: The constitutional obligation to make adequate equalization payments to the poorer provinces is probably too vague, and too political, to be justiciable. It is like the “directive principles of state policy”in the Constitution of India, which are statements of economic and social goals that ought to guide governments but which are not enforceable in court. [73] Now the CBRM asserts that certain scholars take an opposite view and contend that commitment is just that binding obligation. For example, in its factum, the CBRM in addition to Aymen Nadar, supra, refers to the works of Professor Lorne Sossin, Boundaries of Judicial Review: The Law of Justiciability in Canada, (Thomson Canada Limited, 1999): 52. Numerous constitutional experts have also reached the conclusion that s. 36 is justiciable. In his text on justiciability, Professor Sossin stated: The argument that s. 36 was intended to create justiciable obligations on the federal and provincial governments is reinforced by the inclusion of the term “commitment” to describe the protections contained therein. commitment suggests the creation of an enforceable obligation, at least to employ one’s best efforts in securing that to which one is committed. However, it falls short of creating any mandatory obligation to provide particular level of funding or type of benefit. There is further support for this position if one views the treatment of constitutional convention, discussed above, as analogous to how the Supreme Court would approach s. 36. The Patriation Reference [in which the Supreme Court of Canada decided that it was appropriate to answer reference question regarding constitutional convention, even though such conventions are not enforceable by the courts] is authority for the proposition that political disputes [sic] may nonetheless be justiciable if they possess “constitutional feature”. It simply does not make sense that unwritten, judge-made constitutional doctrines such as conventions possess this “constitutional feature,” while written provisions of the Constitution Act, 1982 do not. 53. In an earlier law review article, Professor Sossin concluded that while s. 36 “may not be enforceable in terms of requiring the government to penalize provinces whose welfare policies failed to meet certain standards, it could appropriately be the subject of declaration by the Court regarding the proper action by the government in the circumstances.” 54. In another law review article, Aymen Nader concluded, Sufficient jurisprudence exists to suggest that if the issue put to court has constitutional feature or sufficient legal component then, in spite of its more open texture of political dimensions, the court will take cognizance of it ... Although coercive remedy may or may not be available in an action based on this section [s. 36], considerable authority exists to suggest that the courts have the power to make “binding declarations of right, whether or not any consequential relief is or could be claimed.” statement by the courts that government is acting in violation of the Constitution without further judicial requirement that its actions be rectified remains viable remedy. [74] Let me address both of these references. Regarding Professor Sossin, it is interesting to note that earlier in his text, he acknowledges the ongoing debate surrounding the justiciability issue. He then credits Mr. Nadar for his thesis that it may be justiciable: Given the apparent non-binding nature of the protections contained in this section, some have argued that disputes arising between governments concerning fiscal transfers and other intergovernmental relations are not justiciable. This view, however, has been subject to persuasive challenge. For example, in “Providing Essential Services: Canada’s Constitutional Commitment under Section 36,” Aymen Nader argues that s. 36 imposes constitutional obligation on governments with respect to how they discharge their spending powers. While this may not be enforceable in terms of compelling governments to change fiscal or social policies, it could appropriately be the subject of declaration by the Court regarding the proper action by the government in the circumstances. According to Nader, s. 36 sets out obligations by which both federal and provincial governments must abide in relation to the CHST. [75] Yet it is also interesting to note that Mr. Nadar, when making the case for justiciability, focussed only on the obligation of the federal government and its duty to see that the provinces meet their equalization obligations. In other words, Nadar sees the federal government (and not municipalities) as the gatekeeper: ... Thus, the provision of essential public services of “reasonable quality” to “all Canadians” will require the federal government to place, as condition for the receipt of federal grant monies, the stipulation that provincial programmes meet standard of comprehensiveness and intrinsic adequacy. This standard of comprehensiveness will be the minimum by which provinces must abide in order for them to meet their commitment of providing essential public services of “reasonable quality.” ... In order to meet its commitment under s. 36(1)(c), Parliament and the federal government must also place conditions on the use of federal grants to the provinces in order to ensure that “all Canadians” are provided with essential public services of “reasonable quality”. Under the current division of powers, the role of the federal government in its commitment pursuant to s. 36(1)(c) is the use of conditional grants to ensure (i) the provision of essential public services which are (ii) of “reasonable quality”, and (iii) are provided to “all Canadians”. Accordingly, the federal government is bound by its commitment to require that essential public services be comprehensive and adequate, thus ensuring their “reasonable quality”, and that they be made universal, accessible and free of residency requirement, thus ensuring their availability to “all Canadians”. Only the federal government can effect such commitment for the nation as whole, and it can only do so through the device of conditional grants. If the federal government were to fail (i) to meet standards of reasonable quality, or (ii) to serve all Canadians, then the national government would have reneged on its commitment pursuant to s. 36(1)(c). Since the spending power is the basis of federal action under this section, and because conditional grants are the means by which that power can be used to effect standards in public services nationwide, the federal government is constitutionally obligated by its commitment to maintain national standards at least in the areas of health and welfare, pursuant to s. 36(1)(c). Those standards, of course, must be of reasonable quality. Although failure on the part of the federal government as described above may or may not lead to coercive remedy, the Courts have the power to issue declaratory relief. With declaration from the Court that the federal government has failed to meet its commitment pursuant to s. 36(1)(c), the government will be found to be have been acting unconstitutionally. Such declaration in the context of s. 36(1)(c) is fitting. This provision is ultimately about Canada’s commitment to maintaining national standards for individual social and economic protection “essential public services”. [76] Nadar then goes on to identify the merits of court declaration. Note, however, that he sees it being issued not against the province, but against the federal government: As earlier stated, this is ultimately political decision, one which must be made by the body politic itself. If the federal government should wish to deviate from its present constitutional commitment, then the question would have to be decided by the people of Canada. Accordingly, declaration of unconstitutionality would be most appropriate, as the Court itself would not be attempting to balance difficult political issues with respect to the spending power by seeking to coerce solution. This is not to say that the courts do not have role to play in this process. The courts are well situated in access, or declare, whether federal legislation complies with the constitutional requirements in s. 36(1)(c). If the federal government wants to restructure the country by amending the Constitution through the political process, however, then that is what it should set about doing but, in the meantime, it is bound by the Constitution. By not compelling the federal government to rectify legislative action in violation of s. 36(1)(c), while declaring that action unconstitutional pursuant to s. 36(1), the Court will effectively be returning the matter to the political arena. This would force the federal government, unless it is willing to remain in violation of the Constitution, either to fix the offending legislation by amending it to comply with constitutional norms, or to seek an amendment to its commitment under s. 36(1). The process of amending the Constitution is that political process by which new public resolution may be made about Canada’s continued commitment to national standards in essential public services. In democracy such as Canada, declaration of unconstitutionality by the Courts would thus be most fitting. [77] In this light, in my respectful view neither the Nadar nor the Sossin thesis supports the CBRM. [78] Yet, the CBRM also relies on two appeal court decisions to support its position that s. 36 is justiciable. In its factum it observes: 44. In relation to s. 36 of the Constitution Act, 1982 specifically, both the Manitoba and British Columbia Courts of Appeal have stated that the provision may be justiciable. 45. In Manitoba Keewatinowi Okimakanak, the appellant relied in part on s. 36(1)(c) to challenge Hydro general rate increase that had been approved by Manitoba’s Hydro-Electric Board. The Manitoba Court of Appeal held that there was no nexus between rate-setting and s. 36(1)(c), because the Board lacked jurisdiction to order Manitoba Hydro to improve the level or quality of service in any region. However, in obiter, the Manitoba Court of Appeal did comment on the meaning of s. 36(1)(c) as follows: There have been no cases dealing with the interpretation of s. 36(1)(c) of the Constitution Act, 1982. There is considerable academic debate as to whether the section in fact creates enforceable rights and, if so, whether they are not in any event by virtue of the preamble of the section subordinate to the ordinary acts of Parliament and the provincial legislatures. Suffice it to say am satisfied that in the general sense reasonable argument might be advanced that the section could possibly have been intended to create enforceable rights. However, it is not necessary to decide this point in light of the disposition am about to make. 46. In the recent Canadian Bar Association case, the British Columbia Court of Appeal rejected statement by Chief Justice Brenner of the B.C. Supreme Court that section 36 of the Constitution Act, 1982 “cannot form the basis of claim since it only contains statement of ‘commitment’.” The Court of Appeal instead adopted the Manitoba Court of Appeal’s holding that section 36 may be enforceable, stating:”I accept that “a reasonable argument might be advanced that the section could possibly have been intended to create enforceable rights” (Manitoba Keewatinow Okimakanak at para. 10).” 47. Ultimately, the B.C. Court of Appeal concluded that the CBA had not raised reasonable claim, but on the basis that broad-based systemic claim that legal aid in British Columbia is inadequate is not constitutionally cognizable claim at all, including pursuant to s. 36. In light of the Supreme Court’s binding precedents on this point, the Court of Appeal held that “the broadly-directed pleadings of systemic problem violating unwritten constitutional principles do not raise reasonable claim. [79] Respectfully, neither of these cases is persuasive in the context of this appeal. First of all, in each case, the reference to justiciability is pure obiter. Secondly, they are hardly ringing endorsements for justiciability; using words like "might" or "could possibly". Finally, as I have already acknowledged, s. 36 might be justiciable in certain circumstances. Again, that is not the issue in this case. Instead, the issue comes down to the merits of the pleadings and whether in this context, s. 36(1) involves justiciable commitment to the CBRM. These cases do nothing to support such proposition. [80] Thus, when it comes to legislative intent, it appears that s. 36 represents a legislative compromise with commitments by and for only the negotiating parties - namely the federal government and the provinces. It offers no support for the concept of a commitment to municipalities. The Consequences of the Attorney General’s Proposed Interpretation [81] Let me therefore now turn to Professor Sullivan's final question the consequences should we endorse the Attorney General’s proposed interpretation that s. 36 cannot possibly represent commitment enforceable at the hands of municipalities such as the CBRM. In response to this, the CBRM warns of serious negative consequences. For example, it asserts that such an interpretation would render the Province of Nova Scotia immune from judicial review of what the CBRM views as clear constitutional commitment. It also cautions that, by this approach, the Court would be abdicating its responsibility as the last line of defence for Canadian citizens. Specifically, in its factum, the CBRM offers this overview of its case. 1. The federal and provincial governments and legislatures have constitutionally committed pursuant to s. 36 of the Constitution Act, 1982 to provide Canadians with comparable levels of public services for comparable levels of taxation wherever in Canada they reside. If Justice Murphy’s decision is upheld, the government and legislature of Nova Scotia (collectively, the “Province” or “Nova Scotia”) will be immune from judicial review of this legal, constitutional commitment. 2. It is submitted that the issue of whether Nova Scotia is in compliance with its constitutional commitment under s. 36 of the Constitution Act, 1982 must be justiciable. Section 52(1) of the Constitution Act, 1982 provides: “The Constitution of Canada [including s. 36] is the supreme law of Canada.” Section 36 accordingly sets out legal commitments to payment (by the federal government) and use (by the provinces) of equalization and regional disparity payments for purposes of providing all Canadian citizens with reasonably comparable levels of public services at reasonably comparable levels of taxation. Whether Nova Scotia has complied with that commitment is thus question of law, and as such is justiciable. 3. Indeed, the Supreme Court of Canada has held that courts cannot “abdicate their responsibility” to determine whether government’s choice falls within constitutional limitations. This is the case even when the constitutional question is controversial or has political implications. In Chaoulli, which dealt with the highly political issue of whether prohibition against taking out insurance to obtain private sector health care services violates the Constitution, Justices Binnie and LeBel stated: “There is nothing in our constitutional arrangement to exclude ‘political questions’ from judicial review where the Constitution itself is alleged to be violated. 4. Pleadings should only be struck out if there is settled law making it plain and obvious that the claim is certain to fail. Here, both the Manitoba and British Columbia Courts of Appeal have stated that s. 36 of the Constitution Act, 1982 may be justiciable. Courts should be especially reluctant to strike out case, like this application, that raises novel constitutional arguments. 5. The Cape Breton Regional Municipality (“CBRM”) stands almost apart in Canada as an urban region experiencing severe localized disparities. There has been no effective government intervention pursuant to s. 36. The situation is comparable to Chaoulli, in which Justice Deschamps said of public health care waiting times: “it seems that governments have lost sight of the urgency of taking concrete action. The courts are therefore the last line of defence for citizens.” [Underlining by author] [82] Respectfully, this submission misses the mark. As have said, s. 36 may indeed be justiciable. My point is that this provision is simply not justiciable at the hands of the CBRM. Therefore, to track the CBRM’s language in its factum, am not at all suggesting that the Province of Nova Scotia is immune from s. 36. As have said, s. 36 embodies an agreement among the federal and provincial governments. Thus, the Government of Nova Scotia, in an appropriate case, might well be held to account but only to one of these parties. This is not that case. [83] Nor, by this interpretation, would the court be abdicating its responsibility. This is not matter of court being reluctant to hear case because it involves “constitutional question that is controversial or has political implications”. Courts should never shy away from protecting the Constitution simply because issues of public policy may be involved. In fact, endorse the CBRM’s reference to Chaoulli v. Quebec (Attorney General), 2005 SCC 35 (CanLII), [2005] S.C.R. 791. There, the Supreme Court of Canada considered the constitutionality of legislation that prohibited private health insurance that would prevent excessive hospital wait times. Specifically, refer to Deschamps, J.’s justification for her Court's involvement in those circumstances: 89 The courts have duty to rise above political debate. They leave it to the legislatures to develop social policy. But when such social policies infringe rights that are protected by the charters, the courts cannot shy away from considering them. [84] As well, the Supreme Court of Canada in Newfoundland (Treasury Board) v. N.A.P.E., 2004 SCC 66 (CanLII), [2004] S.C.R. 381, considered the appeal of female hospital workers who claimed that legislation reneging on pay equity agreement violated their equality rights under s. 15 of the Charter of Rights and Freedoms. There, Binnie, J. concluded: 111 The "political branches" of government are the legislature and the executive. Everything that they do by way of legislation and executive action could properly be called "policy initiatives". If the "political branches" are to be the "final arbitrator" of compliance with the Charter of their "policy initiatives", it would seem the enactment of the Charter affords no real protection at all to the rightsholders the Charter, according to its text, was intended to benefit. Charter rights and freedoms, on this reading, would offer rights without remedy. See also Boulter, supra at para. [85] The simple reality is that this is not matter for the courts because s. 36 cannot be reasonably interpreted as bestowing constitutional right on municipalities such as the CBRM. Interpreting s. 36 Conclusion [86] The cumulative effect of answering Professor Sullivan's three questions is inevitably as follows. In an appropriate context, s. 36 might represent a justiciable commitment, but only among the federal and provincial governments who were privy to the agreement that is represented by s. 36. It is not actionable by an individual or municipality such as CBRM. Yet this is something the CBRM would have to establish if this matter were to proceed further. Therefore, this proposed interpretation respectfully offers no chance of success. [87] The Chambers judge committed no error of law because it remains "plain and obvious" that these pleadings disclose no reasonable cause of action. Respectfully they are "certain to fail" and "absolutely unsustainable". DISPOSITION [88] I would dismiss this appeal but, as agreed to by the parties, without costs. In the circumstances, need not consider the Attorney General’s cross-appeal. MacDonald, C.J.N.S. Concurred in: Oland, J.A. Fichaud, J.A.

The municipality appealed the trial court's decision to summarily strike their claim against the province, pursuant to R14.25 of the Civil Procedure Rules (1972). At trial, the municipality argued s. 36 of the Constitution Act compels the province to take appropriate steps to alleviate regional disparities. Arguing this is an enforceable obligation that was breached by the province, the municipality sought a declaration from the court to that effect. The municipality's arguments on appeal focused on the justiciability of s. 36. The province concentrated on the fact the judge had dismissed based on deficiencies in the pleadings, calling the municipality's claim too vague to succeed. Appeal dismissed. The effective standard of review is correctness - whether the judge erred in law by striking the claim. The appeal court carefully framed the issues, and examined s. 36 (its intent, and application). Rule 14.25 is a drastic remedy, and the trial judge was aware the province had a high threshold to meet in order to have the claim struck. While s. 36 might be justiciable, it does not provide an enforceable right to municipalities. Rather, it embodies an agreement among federal and provincial governments, and only those parties who were privy to the agreement can act to have it enforced. On this basis, the municipality's claim had no chance of success and the trial judge was correct to dismiss it.

2009nsca44.txt

J. Q.B.G. A.D. 2000 No. 1188 J.C. S. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF SASKATOON IN THE MATTER OF JUDICIAL REVIEW PURSUANT TO PART 52 OF THE QUEEN’S BENCH RULES AND THE INHERENT SUPERVISORY JURISDICTION OF THE COURT AND IN THE MATTER OF AN APPLICATION TO SET ASIDE THE OCTOBER 6, 1999 DECISION OF THE SASKATCHEWAN LIQUOR AND GAMING LICENSING COMMISSION (SLGLC) RE: DISQUALIFICATION OF THE HORSE “CHEETARA” 6TH RACE, SUNDAY, AUGUST 5, 1999—MARQUIS DOWNS, SASKATOON BETWEEN: BEVERLY BROOKS, BARCLAY BROOKS and STERLING McWATTERS and THE SASKATCHEWAN LIQUOR AND GAMING LICENSING COMMISSION (SLGLC), THE SASKATCHEWAN LIQUOR AND GAMING AUTHORITY, CHERYL TWIGG, JIM TWIGG, RIVER RIDGE FARMS and MERV WILSON RESPONDENTS Gwen V. G. Vanstone for the applicants Rodger W. Linka for The Saskatchewan Liquor and Gaming Authority Jeffrey M. Lee for Cheryl Twigg, Jim Twigg, River Ridge Farms and Merv Wilson JUDGMENT BARCLAY J. November 28, 2000 It’s Post Time! [1] This is an application by Beverly Brooks, Barclay Brooks and Sterling McWatters (collectively referred to as the “applicants”) for a judicial review of a decision of one of the respondents, The Saskatchewan Liquor and Gaming Licensing Commission (the “Commission”). The decision was with respect to horse race that took place at Marquis Downs Race Track in Saskatoon, Saskatchewan, on August 15, 1999. The race was “The Woodland Heritage”, $15,000.00 “stakes” race that comprised the sixth race on that day’s race card and featured field of eight horses. [2] The applicants are the owners of two horses which were involved in the race. The horse which won (Cheetara) was disqualified for interference at the gate. The applicants’ horses were moved up in the standings and as result were entitled to greater portion of the purse. [3] By virtue of s. 10.1 of The Alcohol and Gaming Regulation Act, S.S. 1988-89, c. A-18.01 (the “Act”), the Saskatchewan Liquor and Gaming Authority (the “Authority”) may make rules for the conduct of horseracing (s. 10.1(1) of the Act) and may authorize steward to enforce the Act and the rules of horseracing, as well as to conduct an investigation into breach of the Act or the rules of horseracing (s. 10.1(3) of the Act). [4] Rule 20 of the Rules of Racing (the “Rules”) requires that each race be observed by at least two stewards. Section 10 of this rule requires that “at least one Steward/Judge shall observe the jockeys/drivers throughout the stretch, specifically noting changing courses, interference, improper use of whips, breaks, and failure to contest the race to the finish.” [5] Where steward observes rule violation or receives an objection, s. 9(L) of Rule 20 provides that it is the duty of the stewards/judges to “Post the objection, or inquiry sign on the odds board in the case of complaint or possible rule violations and immediately notify the announcer of the objection and the horses involved....” [6] In accordance with the Rules, stewards Doug Schneider and Larry Huber observed the sixth race on August 15, 1999. Steward Huber watched the race on closed circuit television monitor, while steward Schneider watched the race through binoculars. The horse Cheetara finished first in the race. [7] After the race, Ken Gold, jockey on the third place horse “Mafia Mamma”, filed an objection with steward Schneider. The objection alleged that the winning horse, Cheetara, interfered with Mafia Mamma shortly after leaving the starting gate. [8] After making their inquiry, the stewards disqualified Cheetara and placed Cheetara in third place. This decision of the stewards had the effect of elevating Mafia Mamma from third place to second place. River Ridge Farms and Merv Wilson (two of the respondents) the owners of the disqualified horse, appealed the ruling of the stewards to the Commission. The right to appeal to the Commission is contained in provisions of the Rules and the Act. [9] The hearing of the appeal took place before the Commission in Saskatoon on September 10, 1999. The applicants were not given any notice as to the time and place of the hearing. [10] The Commission held that the veering to the left by Cheetara and Mafia Mamma was within the tolerance of interference at the gate for two year olds and overturned the decision of the stewards. Consequently, Cheetara was restored to first place. This judicial review application followed. ISSUES 1. Are the Hearsay Opinions of Stewards from Other Jurisdictions Admissible Before this Honourable Court? 2. Did the Commission Exceed its Jurisdiction by Overturning the Stewards’ Decision to Disqualify Cheetara? 3. Did the Commission Breach the Rules of Natural Justice by Failing to Give Notice of the Hearing to the Applicants? 1. Are the Hearsay Opinions of Stewards from Other Jurisdictions Admissible Before this Honourable Court? [11] Exhibit “A” to the affidavit of Barclay Brooks filed in support of the judicial review application consists of number of letters from stewards from other jurisdictions providing their opinions as to whether or not there was interference in the race in question (presumably based upon viewing videotape of the race). [12] Such information is irrelevant to the present proceedings. Not only are the opinions inadmissible as hearsay, but they are also irrelevant to the questions which are before this Court on judicial review. [13] The law is well settled that the Court in certiorari proceedings is restricted to determining whether or not the inferior statutory tribunal acted within its jurisdiction (including matters akin thereto such as fraud, bias, denial of natural justice, etc.) or whether there is error on the face of the record. (R. v. Northumberland Compensation Appeal Tribunal, Ex p. Shaw, [1952] K.B. 338). [14] Further, the evidence adduced at a hearing is not part of the record. (R. v. Labour Relations Board of Saskatchewan, Ex Parte Tag’s Plumbing Heating Limited (1962), 1962 CanLII 307 (SK CA), 34 D.L.R. (2d) 128 (Sask. C.A.). [15] In Tag’s Plumbing, the applicants for judicial review argued that the tribunal whose decision was under review had failed to inquire into certain evidence and had made incorrect factual findings based on the evidence. At pp. 134-35, Culliton C.J.S. stated: Grounds to of the application all allege error in law apparent on the face of the record. think it is clear that the findings of the Board complained of in these various grounds are findings which it was within the Board’s jurisdiction to make. The allegation of error in law on the face of the record can only be substantiated if the Board is bound not only to record its findings, but also the evidence upon which the findings were based.... As in my opinion no error is apparent on the face of the record, and the findings attacked in grounds to were within the Board’s jurisdiction, the Court cannot review the evidence as to whether they were correctly or erroneously made. [Emphasis added] [16] In my view, opinions of stewards from other jurisdictions form no part of the record and therefore cannot be considered by this Court. 2. Did the Commission Exceed its Jurisdiction by Overturning the Stewards’ Decision to Disqualify Cheetara? [17] The powers of the Commission in hearing appeals of the stewards’ decisions are prescribed in the Rules and the Act. [18] The right to appeal decision of the Authority (as represented by the stewards) is provided for in s. 17 of the Act: 17(1) Within 15 days after being notified of the decision, an applicant may apply, in the manner described in subsection (1.1), for review by the commission of decision of the authority to: ... (c) ... impose fine or other sanction on person who has contravened the rules of horse racing or acted in manner that is prejudicial to the best interests of horse racing. [19] Upon receiving such an application, s. 16 of the Act requires the Commission to hold hearing. Section 17(4) sets out the information which the Commission can consider in hearing an application for review of the stewards’ decision: 17(4) On review conducted pursuant to this section, the commission may consider: (a) any information submitted by the applicant; (b) any information considered by the authority in making its decision; and (c) where an oral hearing is held, any information given or representations made at the oral hearing. [20] The authority of the Commission to render decision after holding hearing pursuant to s. 16 is set out in s. 19: 19 Where the commission holds hearing pursuant to section 16 it may: ... (g.2) confirm the decision ... to impose fine or other sanction on person who has contravened the rules of horse racing or acted in manner that is prejudicial to the best interests of horse racing, or substitute its own decision. [Emphasis added] [21] Rule 31 further sets out the power of the Commission with respect to appeals or review of decisions of the stewards. The relevant portions of Rule 31 are as follows: RULE 31 APPEALS SECTION Appeal: An appeal is request to the Saskatchewan Liquor and Gaming Licensing Commission to investigate, consider and review any decisions or rulings of the Stewards/Judges or officials of racing meeting. The appeal may deal with placements, penalties, interpretations of the rule or other questions dealing with the conduct of racing. SECTION The record in appeal before the Commission is constituted of the following documents: A. The notice of appeal signed by the appellant, B. the decision of the Stewards/Judges where applicable, C. the video recording when the offence appealed was committed during race, if any, ... E. such further and other documents as the Commission, in its sole discretion may deem appropriate. SECTION 11 Where the ends of justice so require, the Commission may ex officio or on motion of party, hear witnesses who testified before the Stewards/Judges. SECTION 12 The Commission may also require or authorize additional evidence or the calling of new witnesses that may give evidence relevant to the appeal. ... SECTION 16 The Commission in its sole discretion shall determine all of evidence and procedure for appeals held before it. [22] These provisions in both the Rules and the Act clearly entitle the Commission to overturn decision of the stewards based on the Commission’s own assessment of the evidence. These provisions are clearly inconsistent with the applicants’ assertion (in the second ground for review in the amended notice of motion) that the stewards “are vested with the sole authority to determine whether there was interference at the gate....” [23] In my view this ground of the application is without merit. 3. Did the Commission Breach the Rules of Natural Justice by Failing to Give Notice of the Hearing to the Applicants? [24] There exists general duty to act fairly on the part of public authority and this includes notice and the right to make representations to the tribunal. [25] In Knight v. Indian Head School Division No. 19 (1990), 1990 CanLII 138 (SCC), 69 D.L.R. (4th) 489 (S.C.C.), it is clearly set out that the existence of general duty to act fairly on the part of public authority depends on three factors: 1. The nature of the decision to be made by the administrative body; 2. The relationship existing between the body and the individual; and 3. The effect of the decision on the individual. [26] If the court determines that duty of fairness is owed, it must then go on to determine if that duty has been modified by the statutory framework or by the contract between the public authority and the individual. At p. 506 Laskin C.J.C. states: Having come to the conclusion that there exists general right to procedural fairness, the statutory framework must be examined in order to see if it modifies this right: Wiseman v. Borneman, [1969] All. E.R. 275 (H.L.), at p. 277, per Lord Reid. However, as was pointed out by Dickson J., as he then was, in Kane v. Board of Governors of the University of British Columbia, supra, at p. 113: "To abrogate the rules of natural justice, express language or necessary implication must be found in the statutory instrument." Thus, the provisions of the Education Act must be quite clear to lead us to the conclusion that the respondent's general right to procedural fairness has been restricted. [27] Therefore it is presumed in each case that procedural fairness applies and it will take an explicit or clearly implicit provision to the contrary in the legislation or the contract to override this presumption. At p. 509 Laskin C.J.C. states: In interpreting the contract of employment, it will be presumed, as was the case with the statute, that the parties intended that procedural fairness would apply and it will take an explicit or clearly implicit provision to the contrary to override this presumption: Kane v. Board of Governors of the University of British Columbia, supra, at p. 322, per Dickson J. [28] In the case of Gazdarica v. Calgary R.C. Separate School District No. 1/Catholic School Centre (1986), 26 Admin. L.R. (Alta. Bd. of Reference under the School Act) no notice whatsoever of meeting where school board's decision to suspend teacher and terminate her contract was given. judge of the Alberta Court of Queen's Bench acting as Board of Reference under the School Act quashed the decision. At p. 13 Rowbotham J. states: The duty to act fairly applies to all administrative tribunals including the respondent [see Nicholson v. Haldimand-Norfolk Regional Bd. of Police Comm., 1978 CanLII 24 (SCC), [1979] S.C.R. 311, 78 C.L.L.C. 14,181, 88 D.L.R. (3d) 671, 23 N.R. 410 (S.C.C.)]. Moore C.J.Q.B. in Yarmoloy v. Banff School Dist. No. 102 (1985), 1985 CanLII 1361 (AB QB), 63 A.R. 390 (Alta. Q.B.), case involving the placement of student in another school wrote at p. 394: “In this case, the content of the duty to act fairly included notice and the right to make representation to the board when it considers the placement issue.” In the present reference, the appellant had the right to receive notice of the board hearing which proposed to deal with question of her dismissal and to make representations to the board in opposition to that proposal. heard no evidence or submission which indicated that the appellant was present or was represented at the board meeting which considered the matter of her dismissal. Dr. Kowalski, assistant superintendent for the board was present at the meeting and submitted the administration's recommendation for her dismissal. The board had an obligation, especially when the employment and livelihood of the appellant was in issue, to disclose to her the evidence that they propose to rely upon together with sufficient notice of the hearing to permit her to prepare and present an appropriate response. These requirements were established in Bigger v. Elliot Lake Police Comm. Bd. (1984), C.C.E.L. 174, 26 M.P.L.R. 24, O.A.C. 60 (Ont. Div. Ct.). The rule of fairness requires that, in the words of Lord Hewart C.J. in R. v. Sussex Justices; Ex parte McCarthy, [1924] K.B. 256, [1923] All E.R. Rep. 233: “justice should both be done and manifestly seen to be done....” [29] The basic principles relating to notice were recently reviewed by Esson C.J.S.C. in R.(J.) v. College of Psychologists (British Columbia) (1993), 1993 CanLII 759 (BC SC), 107 D.L.R. (4th) 335 (B.C.S.C.). In that case it was held that committee of the College had failed to discharge its duty to act fairly when it failed to give the petitioner notice of its intention to consider the imposition of conditions on his practice. Esson C.J.S.C. said at p. 340: The primary submission of the petitioner is that the college failed in its duty to act fairly when imposing conditions under s. 9.1. It relies upon the line of authority starting with Nicholson v. Haldimand-Norfolk (Region) Board of Police Commissioners (1978), 1978 CanLII 24 (SCC), 88 D.L.R. (3d) 671, [1979] S.C.R. 311, 78 C.C.L.C. ¶14,181, and particularly on the principle stated by Dickson J. (later C.J.C.) in Kane v. University of British Columbia (Board of Governors) (1980), 1980 CanLII 10 (SCC), 110 D.L.R. (3d) 311, [1980] S.C.R. 1105, [1980] W.W.R. 125. Dickson J. said at p. 322: “In any particular case, the requirements of natural justice depend on ‘the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter which is being dealt with, and so forth’ To abrogate the rules of natural justice, express language or necessary implication must be found in the statutory instrument. 3. high standard of justice is required when the right to continue one's profession or employment is at stake disciplinary suspension can have grave and permanent consequences upon professional career. 4. The tribunal must listen fairly to both sides giving the parties to the controversy fair opportunity ‘for correcting or contradicting any relevant statement prejudicial to their views’: Board of Education v. Rice et al., [1911] A.C. 179 at p. 182 (H.L.); Local Government Board v. Arlidge [[1915] A.C. 120 at p. 140].” [30] Here the applicants’ rights are clearly affected by the decision of the Commission and s. 16 of the Act gives the Commission discretion as to who must receive notice. [31] The sole argument of the respondents is that the privative clause in the Act affords the Commission the right to interpret the notice provisions of its empowering statute subject only to judicial review on the patently unreasonable standard. [32] The respondents rely on the Supreme Court of Canada decision of Bibeault v. McCaffrey, 1984 CanLII 133 (SCC), [1984] S.C.R. 176. Bibeault dealt with the refusal of an investigation commissioner to allow employees to participate in an investigation into the appropriate composition of bargaining unit. Specifically, the employees had requested the right to make oral representations at the investigation, to call witnesses, and to cross-examine other parties’ witnesses. However, the legislation in issue (which contained privative clause) specified that the investigation commissioner was to determine the appropriate composition of bargaining unit in the presence of the associations concerned and the employer. Employees were not contemplated by the legislation as being present for that determination, but neither did the legislation specify employees were to be excluded. Based on the commissioner’s interpretation of the legislation, only the associations and the employer were entitled to participate in the investigation. When the employees were refused the right to participate, they claimed that the audi alteram partem rule of natural justice had been violated. However, the Court held as follows at pp. 184-85: The complaint by the employees that the audi alteram partem rule has been infringed assumes that the law gives them the status of interested party and that ... it has not deprived them of the characteristics of that status. Such finding is within the authority of the commissioners, and the latter, as consequence of the privative clause, is immune from review by the superior courts unless it is patently unreasonable. In my view, the decision of the commissioners and the Labour Court rests on an interpretation of s. 32 L.C. which is not patently unreasonable. [Emphasis added] [33] This case is clearly distinguishable from the case at bar. In Bibeault, the employees were represented by an employees’ association and therefore it would not be necessary for the employees to be separately represented. Furthermore, the decision of the Commission to refuse to give the applicants notice of the hearing is, in my view, patently unreasonable. [34] In Re Central Newfoundland Hospital (1978), 20 Nfld P.E.I.R. 215, the Newfoundland Supreme Court held that the Newfoundland Labour Relations Board, before granting an extension of time (for filing an objection) to party should give the other party an opportunity to be heard, where the granting of an extension of time was quasi-judicial function. The court went on to state that the basic principles of natural justice require that tribunal shall be impartial and that the parties concerned shall be given an opportunity to be heard. CONCLUSION [35] In this case the Commission has failed to discharge its duty to act fairly when it failed to give the applicants any notice of the hearing and also failed to give them any opportunity to make submissions. The Commission has an obligation in order to protect the rights of the applicants to ensure that they have right to be heard. Here, as the Commission did not give adequate or any notice to the applicants, a miscarriage of justice has occurred. The application is allowed and the decision of the Commission is quashed. The matter is remitted back to the Commission to be dealt with according to law after the appropriate notices have been given to the applicants. [36] The applicants are entitled to the costs of their application.

An application for a judicial review of a decision by the Saskatchewan Liquor and Gaming Commission which held that the veering to the left by the two horses was within the tolerance of interference at the gate for two year olds. The Commission overturned the decision of the stewards and restored the horse declared to be in first place. In issue was whether the hearsay opinions of stewards from other jurisdictions were admissible; whether the Commission exceeded its jurisdiction by overturning the steward's decision to disqualify the horse; whether the Commission breached the rules of natural justice by failing to give notice of the hearing to the applicants. The respondents contended the privative clause in the Act gives the Commission the right to interpret the notice provisions of its empowering statute subject only to judicial review on the patently unreasonable standard. HELD: The application was allowed and the decision of the Commission was quashed. The matter was remitted to the Commission to be dealt with according to law after the appropriate notices have been given to the applicants. 1)The opinions were not only inadmissible as hearsay but were irrelevant to the present proceedings. 2)The law is well established that the Court in certiorari proceedings is restricted to determining whether or not the inferior statutory tribunal acted within its jurisdiction or there is an error on the face of the record. The evidence adduced at a hearing is not part of the record. 3)The provisions in both the rules of the Saskatchewan Liquor and Gaming Authority for the conduct of horse racing and the Alcohol and Gaming Regulation Act clearly entitle the Commission to overturn a decision of the stewards based on the Commission's own assessment of the evidence. The stewards were not vested with the sole authority to determine whether there was interference at the gate. 4)Knight v. Indian Head School Division set out that the existence of a general duty to act fairly on the part of a public authority depends on three factors: the nature of the decision, the relationship between the body and the individual, and the effect of the decision on the individual. 5)A miscarriage of justice occurred because the Commission did not give adequate or any notice to the applicants and failed to give them an opportunity to make submissions. The decision of the Commission to refuse to give the applicants notice of the hearing was patently unreasonable. Their rights were affected by the decision. Bibeault was distinguishable. 6)The applicants were awarded costs.

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C.A. No. 113623 NOVA SCOTIA COURT OF APPEAL Hallett, Chipman and Flinn, JJ.A. BETWEEN: WORKERS’ COMPENSATION BOARD OF NOVA SCOTIA -and DONALD LANGLEY Respondent David P.S. Farrar for the Appellant Louis M. Walsh for the Respondent Appeal Heard: May 29, 1995 Judgment Delivered: June 20, 1995 THE COURT: The appeal is allowed and the decision and order of the Chambersjudge are set aside as per reasons for judgment of Chipman, J.A.; Hallett and Flinn, JJ.A., concurring. CHIPMAN, J.A.: This is an appeal from a decision in the Supreme Court in Chambers allowing an application for certiorari to quash a decision of the Workers\' Compensation Board and remitting the matter to the Board to determine the rate of compensation payable to the respondent in accordance with s. 37 of the Workers\' Compensation Act, R.S.N.S. 1989, c. 508. The respondent had worked for M-I Drilling Fluids Canada Inc. or its parent company since 1963, and experienced periods of layoff for as long as two years. He had returned to work in November 1990. Effective January 31, 1993 he was laid off from full-­time employment as warehouse manager. His last day worked as such was January 15, 1993. Since January 31, 1993, the respondent was employed by M-I on contract basis as property caretaker for which he was paid $100.00 weekly and, in addition, he was given part-time casual work for which he was paid at the rate of $15.00 per hour. The part-time work included at least some of the duties he had been performing before he was laid off. On March 16, 1993 while performing his casual work, the respondent sustained back injury. He was able to continue with his caretaking duties for which he was paid the weekly sum of $100.00, but he was unable to continue with the casual work. The respondent submitted claim to the Board and by decision dated June 14, 1993 the Claims Adjudicator of the Board found that the respondent had sustained back injury. He was found to be no longer disabled as of June 14, 1993, and had thus suffered total temporary disability within the meaning of the Act. As he was working on part-time basis, the Adjudicator found he was entitled to be paid compensation for one day of work per week from March 19, 1993 until May 26, 1993 and thereafter for one day of work per month until June 14, 1993. The respondent appealed to Review Officer of the Board who by decision dated December 20, 1993 affirmed the decision of the Adjudicator. The Review Officer's findings of fact included that effective January 31, 1993 the respondent was employed as labourer for one eight hour day per week. Effective May 26, 1993 he was employed as labourer for one eight hour day per month. Temporary total disability benefits had been awarded to him on the basis of wages lost as such labourer. Although the respondent was not disabled from his duties as caretaker, he was to be reimbursed on the basis of total temporary disability for the time lost from casual work. His appeal was dismissed. The respondent appealed to Hearing Officer of the Board who held hearing on March 1, 1994 and filed decision on March 22, 1994. The Hearing Officer reviewed the facts, noting that the respondent's "average weekly earnings" during the previous 12 months from February 1, 1992 to January 31, 1993, based on salary of $30,690 were $590.19. It was on this basis that the respondent's benefits were calculated, albeit on part-time basis. The Hearing Officer reviewed the decisions of the Claims Adjudicator and the Review Officer, the evidence of the respondent, as well as medical reports and other data relating to his income and employment. The Hearing Officer referred to s. 37 of the Act dealing with total temporary disability. She also referred to the respondent's lay off on January 31, 1993 and, in effect, declined to treat the respondent as full-time employee for the purpose of fixing compensation. At the time of the injury, the respondent was part-time employee and as result of the Adjudicator's decision, was compensated with respect to actual time missed from work. He thus received total temporary disability benefits from the Board to replace the income he would have earned as part-time employee had he not suffered the accident on March 16, 1993. The Hearing Officer concluded: "In light of the evidence on the file, do not accept the argument that Mr. Langley should have received temporary total disability benefits on 'full-time basis', given the fact that Mr. Langley's lay off may have been only temporary in nature. This assertion is speculative at best. The Workers' Compensation system is wage replacement system or wage loss system designed to compensate workers for actual wages loss as result of work related accidents. It would be improper to pay Mr. Langley benefits that would reflect Mr. Langley was employed on full-time basis as of the date of his accident, because this was not, in fact, the case. When Mr. Langley suffered his work related accident on March 16, 1993 he had been employed for the past six weeks on an hourly rate basis, earning $15.00 an hour and working one day week. He was not employed on full-time basis nor is there any indication in the file other than speculation, that Mr. Langley would have been reinstated to full-time status during the spring or summer of 1993." The Hearing Officer concluded that to compensate the respondent based on full-time employment status as of the date of the accident would be contrary to the evidence and to the intent of the legislation in performing wage replacement function. The appeal was dismissed. On certiorari proceedings before the Chambers judge, he reviewed the facts and the argument of counsel and referred to s. 37 of the Act: "37 Where temporary total disability results from the injury, the compensation shall be weekly payment of seventy-five percent of the worker's average weekly earnings during the previous 12 months, if he has been so long employed, but if he has not been so long employed, then for any less period during which he has been in the employment of his employer." After referring to the general principles regarding the standard of review by the courts of decisions of administrative tribunals, the Chambers judge concluded that s. 37 of the Act limited the Board's jurisdiction. Thus, he concluded that the interpretation by the Hearing Officer of such provision was one which was subject to review for correctness. The Chambers judge held that the Hearing Officer had ignored the clear words of s. 37 and had arbitrarily decided upon a different rate of compensation. The Board had thus exceeded its jurisdiction. The decision was quashed and the matter remitted to the Board to determine the rate of compensation in accordance with s. 37 of the Act. On the Board's appeal to this Court, two issues are raised: (1) whether s. 37 of the Act limits the Board's jurisdiction; (2) if s. 37 does not limit the Board's jurisdiction, whether the Board's decision was nevertheless patently erroneous and properly set aside in any event. ISSUE ONE JURISDICTIONAL LIMITATION The scope of review of tribunal decisions by courts was recently discussed by the Supreme Court of Canada in Pezin v. British Columbia (Superintendent of Brokers), 1994 CanLII 103 (SCC), [1994] S.C.R. 557 at 589-90. "From the outset, it is important to set forth certain principles of judicial review. There exist various standards of review with respect to the myriad of administrative agencies that exist in our country. The central question in ascertaining the standard of review is to determine the legislative intent in conferring jurisdiction on the administrative tribunal. In answering this question, the courts have looked at various factors. Included in the analysis is an examination of the tribunal's role or function. Also crucial is whether or not the agency's decisions are protected by privative clause. Finally, of fundamental importance, is whether or not the question goes to the jurisdiction of the tribunal involved. Having regard to the large number of factors relevant in determining the applicable standard of review, the courts have developed spectrum that ranges from the standard of reasonableness to that of correctness. Courts have also enunciated principle of deference that applies not just to the facts as found by the tribunal, but also to the legal questions before the tribunal in the light of its role and expertise. At the reasonableness end of the spectrum, where deference is at its highest, are those cases where tribunal protected by true privative clause, is deciding matter within its jurisdiction and where there is no statutory right of appeal. See Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., 1979 CanLII 23 (SCC), [1979] S.C.R. 227, U.E.S., Local 298 v. Bibeault, 1988 CanLII 30 (SCC), [1988] S.C.R. 1048, at p. 1089 (Bibeault), and Domtar Inc. v. Quebec (Commission d'appel en matiere de lesions professionelles), 1993 CanLII 106 (SCC), [1993] S.C.R. 756. At the correctness end of the spectrum, where deference in terms of legal questions is at its lowest, are those cases where the issues concern the interpretation of provision limiting the tribunal's jurisdiction (jurisdictional error) or where there is statutory right of appeal which allows the reviewing court to substitute its opinion for that of the tribunal and where the tribunal has no greater expertise than the court on the issue in question, as for example in the area of human rights. See for example Zurich Insurance Co. v. Ontario (Human Rights Commission), 1992 CanLII 67 (SCC), [1992] S.C.R. 321, Canada (Attorney General) v. Mossop, 1993 CanLII 164 (SCC), [1993] S.C.R. 554 and University of British Columbia v. Berg, 1993 CanLII 89 (SCC), [1993] S.C.R. 353." This Court recently reviewed these principles in Cape Breton Development Corporation v. Workers' Compensation Board Nova Scotia, et al. (unreported February 6, 1995) when at p. Hallett, J.A. said: ... In my opinion one of the clearest statements on this question is that made by Mr. Justice Beetz of the Supreme Court of Canada in U.E.S., Local 298 v. Bibeault, 1988 CanLII 30 (SCC), [1988] S.C.R. 1048 at pp. 1086 to 1090. The key parts of his statements are the following: 'In its decision tribunal may have to decide various questions of law. Certain of these questions fall within the jurisdiction conferred on the tribunal; other questions however may concern the limits of its jurisdiction. It is, think, possible to summarize in two propositions the circumstances in which an administrative tribunal will exceed its jurisdiction because of error: 1. if the question of law at issue is within the tribunal's jurisdiction, it will only exceed its jurisdiction if it errs in patently unreasonable manner; tribunal which is competent to answer questions may make errors in so doing without being subject to judicial review; 2. if however the question at issue concerns legislative provision limiting the tribunal's powers, mere error will cause it to lose jurisdiction and subject the tribunal to judicial review."' In Canadian Broadcasting Corporation v. Canada (Labour Relations Board), 1995 CanLII 148 (SCC), [1995] S.C.R. 157, lacobucci, J. writing for the majority of the Supreme Court of Canada said at p. 179: ... In distinguishing jurisdictional questions from questions of law within tribunal's jurisdiction, this Court has eschewed formalistic approach. Rather, it has endorsed 'pragmatic and functional analysis', to use the words of Beetz J. in U.S.E., Local 298 v. Bibeault, 1988 CanLII 30 (SCC), [1988] S.C.R. 1048. In that decision Beetz J. noted, at p. 1088, that it was relevant for the reviewing court to examine: '. not only the wording of the enactment conferring jurisdiction on the administrative tribunal, but the purpose of the statute creating the tribunal, the reason for its existence, the area of expertise of its members and the nature of the problem before the tribunal.' The goal is to determine whether the legislature intended that the question in issue be ultimately decided by the tribunal, or rather by the courts." We must determine then whether the Board's interpretation of s. 37 of the Act was within its jurisdiction or whether such provision was one conferring jurisdiction on the Board. The purpose of the Act is to provide compensation on no-fault basis to workers who are injured on the job. The compensation is designed, as far as available resources permit, to replace lost earnings or compensate for lost earning capacity. See Hayden v. Workers' Compensation Appeal Board (1990), 1990 CanLII 2423 (NS CA), 96 N. S. R. (2d)108. The cost of the benefits is met from the levies charged by the Board against employers in the industries governed by the Act, based upon payrolls. The Board administers the entire scheme. Claims by workers are decided in the first instance by the Claims Adjudicator. An appeal lies to Review Officer and further appeal lies to Hearing Officer. The Board, acting through these officials can be presumed to have high level of expertise in the assessment of disabilities and awarding compensation. In determining the legislative intent as to where the ultimate decision making power is to rest, the following sections of the Act are relevant: "148 The Board has jurisdiction to inquire into, hear and determine all matters and questions of fact and law necessary to be determined in connection with compensation payments and the administration thereof and the collection and management of the funds therefor. 150 Except as stated in Sections 169, 182 and 183, the decisions and findings of the Board upon all questions of law and fact shall be final and conclusive, and in particular, but not so as to restrict the generality of the powers of the Board hereunder, the following shall be deemed to be questions of fact: (d) the degree of diminution of earning capacity by reason of any injury; (e) the amount of average earning;" (emphasis added) Sections 169, 182 and 183 are not relevant to this inquiry. In my opinion, the Board's function in applying s. 37 involves the determination of matter within its jurisdiction, namely the fixing of compensation for temporary total disability based on the amount of average weekly earnings. Another section available for the Board's use in carrying out this function is s. 53, and in particular subsection thereof. It appears that this section was not drawn to the attention of the Chambers judge. "53 (1) Where owing to the shortness of the time during which the worker was in the employment of his employer or the casual nature of his employment or the terms of it, it is impracticable to compute the rate of remuneration as of the date of the accident regard may be had to the average weekly or monthly amount which during the twelve months previous to the accident was being earned by person in the same grade employed at the same work by the same employer or if there is no person so employed then by person in the same grade employed in the same class of employment and in the same locality. (2) Employment by the same employer shall mean employment by the same employer in the grade in which the worker was employed at the time of the accident uninterrupted by absence from work due to illness or any other unavoidable cause. (3) Where in any case it seems more equitable, the Board may award compensation having regard to the earnings of the worker at the time of the accident." These are not sections which confer or limit jurisdiction on the Board, but rather they govern the Board in carrying out its function of determining compensation in case of disability. The Board is not here concerned with its jurisdiction to award compensation, but rather the amount that ought to be awarded in given case. In my opinion, the Board's interpretation of s. 37 must be judged not by standard of correctness but by standard of reasonableness. The only question left to determine is whether the interpretation by the Hearing Officer was patently unreasonable. ISSUE TWO REASONABLENESS At first blush, it is tempting to say that s. 37, when applied to this case, left the Hearing Officer with no other choice but to take the average earnings of the respondent during the one year period from March 17, 1992 to March 16, 1993, all of which earnings were received during his employ with M-I Drilling Fluids Canada Inc. That is certainly an interpretation of s. 37 which is not unreasonable. However, in considering the application of s. 37, it was also open to the Board to have regard to the Act as whole. On January 31, 1993, the respondent's employment status changed. He was laid off from full-time hourly employment. In its place, the same employer engaged him in two separate ways: contract employment as watchman at rate of $100.00 week (from which he was not disabled) and part­time hourly employment totaling one day week until May 26, 1993 and one day month thereafter. As the Hearing Officer observed "it would be improper to pay Mr. Langley benefits that would reflect Mr. Langley was employed on full-time basis as of the date of the accident, because this was not, in fact, the case." The result of accepting the respondent's submission would be that the hearing officer would award him 75% of an amount close to full-time worker's pay. At the time he was injured he was not full-time worker. This would mean that he would get more compensation than he would have received from his work had he not been disabled. The Hearing Officer rejected the contention that the lay off was temporary, holding that it "was speculative at best". This finding negates any argument based on loss of earning capacity. It was open to the Board to take different approach from that mandated by s. 37. The other option was that prescribed by s. 53(3): "53 (3) Where in any case it seems more equitable, the Board may award compensation having regard to the earnings of the worker at the time of the accident." This provision was particularly applicable to the unique situation before the Hearing Officer. As the privative clause makes clear, the intention of the legislature was to confer upon the Board and not the courts the function of awarding compensation to disabled workers. The scheme of the Act contemplates that the officials of the Board are persons versed in carrying out their function of assessing disabilities, fixing compensation and raising the money to pay for it. In applying the provisions of the Act in the way that she did, I cannot say that the Hearing Officer adopted a patently unreasonable interpretation. Indeed, such interpretation was sensible one in accord with the justice of the situation. I would allow the appeal and set aside the decision and order of the Chambers judge. There should be no costs to either party on this appeal. Chipman, J.A. Concurred in: Hallett, J.A. Flinn, J.A. 1994 S.H. No. 107846 IN THE SUPREME COURT OF NOVA SCOTIA BETWEEN: DONALD LANGLEY -and­- WORKERS' COMPENSATION BOARD OF NOVA SCOTIA DECISION HEARD: at Halifax, Nova Scotia before The Honourable Justice Gordon A. Tidman on September 22, 1994, in Chambers DECISION: November 4, 1994 COUNSEL: Louis M. Walsh, Solicitor for the Applicant Graham J. Steele, Solicitor for the Respondent C.A. No. 113623 NOVA SCOTIA COURT OF APPEAL BETWEEN: WORKERS’ COMPENSATION BOARD OF NOVA SCOTIA -and- DONALD LANGLEY Respondent REASONS FOR JUDGMENT BY: CHIPMAN, J.A.

The appellant Board granted the respondent temporary total disability benefits on a part-time basis. The respondent contended that it should be on a full-time basis, and applied to the Supreme Court in chambers for an order quashing the appellant's decision. The chambers judge found that the appellant had ignored the clear words of s.37 of the Workers' Compensation Act in reaching its decision, and thus had exceeded its jurisdiction; the decision was quashed and the matter remitted back to the Board. The appellant appealed. Allowing the appeal and setting aside the order to quash, that s.37 of the Act was not a section limiting the Board's jurisdiction and that, considering s.37 and s.53 of the Act, the decision of the Board was not patently erroneous.

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IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2011 SKPC 127 Date: July 28, 2011 Location: Moose Jaw, Saskatchewan Between: IN THE MATTER of hearing under THE CHILD AND FAMILY SERVICES ACT AND IN THE MATTER OF T.J.E.S., born April 19, 2010 Appearing: Codi Chudyk For the Ministry of Social Services Mr. D. Ottenbreit For the parents, M.S. and P.K. The parents and children are identified by initials in order to protect their identities. JUDGMENT M. T. GORDON, INTRODUCTION: [1] The Ministry brings an application for a permanent order for the child, T.J.E.S., born April 19, 2010, pursuant to s. 37 of The Child and Family Services Act. [2] The biological parents, M.S. and P.K., oppose the application and submit that the child should be returned to the mother, M.S. LEGISLATIVE FRAMEWORK: [3] The Child and Family Services Act governs these proceedings. The burden is on the Ministry to establish its case on the balance of probabilities being the civil burden of proof. On November 2, 2010, Anna and Wesley Schultz were granted status as persons of sufficient interest pursuant to s. 23 of the Act. They were present throughout the course of this trial but declined the opportunity to take any active part in the proceedings. LEGISLATION: [4] The Ministry seeks permanent order pursuant to s. 11 of the Act declaring this child is in need of protection. The relevant portion of s. 11 reads as follows: 11. child is in need of protection where: (a) as result of action or omission by the child’s parent: (i) the child has suffered or is likely to suffer physical harm; (ii) the child has suffered or is likely to suffer serious impairment of mental or emotional functioning; (iii) the child has been or is likely to be exposed to harmful interaction for sexual purpose, including involvement in prostitution and including conduct that may amount to an offence within the meaning of the Criminal Code; (iv) medical, surgical or other recognized remedial care or treatment that is considered essential by duly qualified medical practitioner has not been or is not likely to be provided to the child; (v) the child’s development is likely to be seriously impaired by failure to remedy mental, emotional or developmental condition; or (vi) the child has been exposed to domestic violence or severe domestic disharmony that is likely to result in physical or emotional harm to the child; (b) there is no adult person who is able and willing to provide for the child’s needs, and physical or emotional harm to the child has occurred or is likely to occur; [5] Sections 14 and 17 of the Act speak to the apprehension process and read as follows: 14(1) Where, on investigation, an officer concludes that child is in need of protection, the officer shall: (a) notify the parent in writing of the officer’s conclusion; and (b) offer family services to the parent. 17(1) Where an officer or peace officer concludes, on reasonable and probable grounds, that child is in need of protection and at risk of incurring serious harm, the officer or peace officer shall: (a) take all reasonable steps that he or she considers necessary to provide for the safety or welfare of the child, including, in the case of an officer, the offer of family services where practicable; or (b) where no other arrangements are practicable, apprehend the child and remove the child to place of safety. (2) Where peace officer apprehends child pursuant to subsection (1), the peace officer shall immediately report the matter to an officer who shall be responsible for the care of the child. (3) Where at any time an officer no longer believes that child apprehended pursuant to subsection (1) would be at risk of incurring serious harm if returned, the officer shall return the child to person who has right to custody of the child. (4) If child apprehended pursuant to subsection (1) is not returned to person who has right to custody of the child within 48 hours of being apprehended, an officer shall: (a) if family review panel has been appointed in the region or locality where the apprehension occurred, apply for review pursuant to section 20 of the reasons for the apprehension; and (b) within seven days, not including the day on which the child was apprehended, make an application to the court for protection hearing. (5) If child apprehended pursuant to subsection (1) is returned to person who has right to custody of the child prior to the review pursuant to section 20, an officer shall withdraw the application for review. (6) Applications pursuant to subsection (4) may be made by telephone in accordance with the regulations. (7) The director may, prior to protection hearing, grant access to child apprehended pursuant to subsection (1) to his or her parent or any other person on any terms and conditions that, in the opinion of the director, would be in the best interests of the child. [6] Section 36 speaks to the protection hearing, as follows: 36(1) On protection hearing, the court shall determine whether the child is in need of protection. (2) Where the court determines that child is in need of protection, the officer shall present to the court the officer’s recommendations respecting an order to be made pursuant to section 37. (3) If the court determines that child is not in need of protection, it shall dismiss the application and order the return of the child to person who has right to custody of the child. (4) An order pursuant to subsection (3) does not constitute an order for custody of the child. [7] In the event find this child is in need of protection, must consider the appropriate order under s. 37 of the Act which provides as follows: 37 (1) Subject to subsection (2), if the court determines that child is in need of protection, the court shall make an order that the child: (a) remain with, be returned to or be placed in the custody of his or her parent; (b) be placed in the custody of person having sufficient interest in the child; or (c) remain in or be placed in the custody of the minister for temporary period not exceeding six months. (2) If, in the opinion of the court, none of the orders described in subsection (1) is appropriate, the court shall make an order permanently committing the child to the minister. (3) Notwithstanding subsections (1) and (2), the court may, if it is of the view that: (a) child is in need of protection; and (b) by reason of the age of the child or other circumstances, it is unlikely that an adoption plan would be made if the child were permanently committed to the minister; order that the child be placed in the custody of the minister until the child attains the age of 18 years. (4) In making an order pursuant to subsection (1), (2) or (3), the court: (a) shall consider the best interests of the child; (b) may consider the recommendations of the officer mentioned in subsection 36(2); and (c) may consider the recommendations of chief, chief’s designate or an agency that appears in court pursuant to subsection (11). (5) In making an order pursuant to subsection (1) or (3), the court may: (a) impose any terms and conditions that the court considers appropriate; and (b) include in the order provision respecting access to the child. (6) If the court, in making an order pursuant to clause (1)(a) or (b), orders supervision of the child by the minister as term or condition of the order, the period of supervision shall not exceed one year. (7) In making an order pursuant to clause (1)(b), the court may direct that the order shall terminate after the expiry of period, not exceeding one year, specified in the order. (8) Any order made pursuant to clause (1)(a) or (b) or section 16 that is inconsistent with an existing custody order of superior court shall be considered an interim order that is subject to further order of superior court. (9) The court shall provide to each party to the proceedings written summary of its reasons for determining that the child is in need of protection. [8] The following provisions of the Act are also relevant in these proceedings as follows: 4. Where person or court is required by any provision of this Act other than subsection 49(2) to determine the best interests of child, the person or court shall take into account: (a) the quality of the relationships that the child has with any person who may have close connection with the child; (b) the child’s physical, mental and emotional level of development; (c) the child’s emotional, cultural, physical, psychological and spiritual needs; (d) the home environment proposed to be provided for the child; (e) the plans for the care of the child of the person to whom it is proposed that the custody of the child be entrusted; (f) where practicable, the child’s wishes, having regard to the age and level of the child’s development; (g) the importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity; and (h) the effect on the child of delay in making decision. 5. Subject to this Act and the regulations, the minister may: (a) establish, operate and maintain family services; (b) provide family services to or for the benefit of parent or child where the minister considers them essential to enable the parent to care for the child; [9] Clearly, the first issue, and only issue depending on my decision is whether the child T.J.E.S. was in need of protection and therefore lawfully apprehended within the meaning of The Child and Family Services Act on April 20, 2010. plain reading of the above sections indicates lawful apprehension is condition precedent to legal proceedings. Without the lawful apprehension there can be no orders under section 37. It follows that the Ministry has no legal authority to force parent to do anything if there is no basis for apprehension. It also follows that evidence obtained after the apprehension cannot validate an invalid apprehension. [10] Mr. Justice McIntyre clearly sets out this procedure in Saskatchewan in the Ministry of Social Services v. S. (E.K.), 1996 CanLII 7131 (SK QB), [1996] 146 Sask. R. 46 at paragraph 28: Step 1: determine if the children are in need of protection, and if so Step 2: determine the appropriate order under s. 37 in accordance with the principles set out in E.K.S. Approach this task as follows: (a) (i) consider the best interests of the child within the meaning of s. of the Act. (ii) may consider the recommendations of the officer. Note: both of these considerations must take place in the context of the objective of the Act as enumerated in s. 3. (b) determine whether any of the options in s. 37(1) are appropriate. The choices are: (i) return the children to the parents, with conditions attached if need be, including supervision by the Minister for up to one year; (ii) place the child in the custody of person having sufficient interest; or (iii) commit the child to the custody of the Minister for up to six months. (c) if none of the options in s. 37(1) is appropriate, then order, pursuant to s. 37(2), the children to be permanently committed to the Minister; or (d) pursuant to s. 37(3), if it is unlikely an adoption plan would be made for the child if permanently committed to the Minister, then order the child placed in the custody of the Minister until the child is 18 years old. [11] Mr. Justice McIntyre set out the following principles: 1. The welfare of the child is the paramount (but not the sole) consideration. The wishes of the parent must be given independent subordinate weight. The weight will depend on the circumstances in each case. (R. v. Saskatchewan (Minister of Social Services), 1974 CanLII 959 (SK QB), [1974] W.W.R. 388, at p. 393 (Sask. Q.B.)) 2. Section 37(4)(a) does not declare that only the best interests of the child shall be considered. The implication is that the court may be mindful of other matters. As well, the list in s. is not exhaustive in determining the best interests of the child. (Saskatchewan (Minister of Social Services) v. R.G. (1990), 1990 CanLII 7428 (SK QB), 88 Sask. R. 262 (U.F.C.)) 3. Any determination made must be in the context of the objective of the Act, set out in s. 3. (M.A.C. v. Saskatchewan (Minister of Social Services) (1993), 1993 CanLII 9025 (SK QB), 110 Sask. R. 81; 46 R.F.L. (3d) 174 (Q.B.)) 4. The court may consider the recommendation of the officer (representative of the Department) but is not bound thereby. 5. The court, having determined the child to be in need of protection, has determined that the level of parenting care is below the minimum tolerated by society. Therefore, in determining whether an order under s. 37(1) is appropriate, including conditions which could be attached, the court must be satisfied either: (a) The parent or parents have altered his or her ways such that the circumstances which gave rise to the determination that the child was in need of protection no longer exist, or (b) The court is satisfied that there is realistic plan or reasonable basis upon which to conclude that the necessary changes can occur within reasonable time whereby the children can be safely returned to the care of their parent or parents. (Saskatchewan (Minister of Social Services) v. A.J. and C.J. (1987), 1987 CanLII 4660 (SK CA), 58 Sask. R. 246 (C.A.); Saskatchewan (Minister of Social Services) v. M.L. and M.L.M. (1988), 1988 CanLII 4925 (SK QB), 71 Sask. R. 110 (U.F.C.); M.A.C. v. Saskatchewan (Minister of Social Services), supra; Saskatchewan (Minister of Social Services) v. R.G., supra.) [50] The court must look at various factors including (without meaning to be exhaustive of the possibilities) any changes in circumstance or conduct of the parent that has occurred or is proposed, any plan of corrective action that is being advanced, the nature of any resources suggested and the time frames which may be involved. The options in s. 37(1) are premised upon reasonable prospect of change, within reasonable length of time and reasonable use of resources if needed. [51] In making an assessment as to whether an order under s. 37(1) is appropriate the court must do so on the basis of the evidence before it. As noted by the Court of Appeal in Saskatchewan (Minister of Social Services) v. A.J. and C.J., supra, p. at 251: However, the following is self-evident. Where, as here, children have been placed into the temporary custody of the Minister, and the parents wish to have the children returned to them, they must make efforts to improve or remove the conditions or circumstances in the home which have resulted in the children being taken from the parents... This analysis is quoted with approval by the Saskatcheawn Court of Appeal in S.F. (Re), 2009 SKCA 121 (CanLII). EVIDENCE AT TRIAL: [12] The Ministry presented ten witnesses at trial, including one expert witness. By consent report of Francis Stewart, who was also qualified as an expert, was admitted as evidence. Following is list of the witnesses and summary of their evidence: 1. Nicole Ansell Ms. Ansell is child protection worker in Moose Jaw. Her first involvement with M.S. was five to six years ago when she was involved with the apprehension of child not the subject of these proceedings. The Ministry received information that the subject child, T.J.E.S., was expected and maternity alerts were put out to the local hospitals. Ms. Ansell stated this decision was based on the parenting capacity assessments of Francis Stewart, Dr. Tim Greenough, the previous family history and decision of Judge Matsalla from Swift Current Provincial Court relating to other children. Ms. Ansell apprehended April 20, 2010 when T.J.E.S. was one day old. Ms. Ansell observed T.J.E.S. with the mother in the hospital and at supervised visits. M.S. handled the child well, but breast feeding was struggle. M.S. kept regular contact with Ms. Ansell by attending the office and telephoning. M.S. pumped and froze breast milk to feed the baby on visitation days. However, the baby experienced digestive problems and after obtaining medical advice no further breast milk was given after mid-June. M.S. was willing to participate in parenting and anger management. However, Ms. Ansell noted that the Ministry had “been down that road” for six years with M.S. and felt her ability was limited. The Ministry was not prepared to put this baby at risk, in particular because of the parents’ past history of domestic abuse and violence. On cross-examination Ms. Ansell agreed that children would have been returned to the mother if they had dealt with their problems of drug and/or domestic abuse. She stated on April 23, 2010 there was permanency planning committee decision to apply for permanent order. Again, Ms. Ansell repeated that the basis for the Ministry’s decision to apprehend at birth and request permanent order was as follows: No stable home environment, only one year in residence, history shows she goes through too many residences, transience, domestic abuse, neglect, parents’ relationship unstable, dirty conditions of the home and the fact the other children were apprehended. All these factors put this baby at risk. The Ministry was of the opinion that the risks were too high and that even if support were put in place, the Ministry would not work with the parents. 2. Stacy Dennison Ms. Dennison is family support worker with the Moose Jaw Family Service Bureau. They received contract January 5, 2011, from Social Services to work with M.S. Ms. Dennison transported the baby to the home of M.S. and observed the visits. She also provided information to M.S. on many topics, including child development, problem solving skills, healthy parenting, violence and effects on children, healthy boundaries, natural and logical consequences and household hazards. She recorded the following observations by the mother: inappropriate behaviour by interrupting, changing topics, making jokes, not taking the matters seriously and inappropriate comments. Examples included M.S. talking to her instead of fully concentrating on the baby, M.S. stating she stole panties and then tried to sell them and not using change pad when changing the baby’s diaper. Ms. Dennison stated she had an appointment with M.S. twice weekly from January to the end of May, and that M.S. called if she had to cancel the appointment. On cross-examination, Ms. Dennison noted the father, P.K., was present on some visits. She noted P.K. exhibited inappropriate behaviour on occasion, such as passing gas, picking his nose, scratching his genitals and making jokes about the resources. Ms. Dennison said she was instructed to record all observations. She noted that on one visit M.S.’s clothes were too tight and her bra strap was sliding down her arm. M.S. did advise she quit smoking. Ms. Dennison admitted that the baby, T.J.E.S., appeared to be content and to have bonded with his mother, M.S. The father, P.K., appeared to be nervous holding the baby and had to be reminded to support the baby’s head. Ms. Dennison noted the home was very clean. When P.K. moved out in March 2011, the home was sometimes messy and cluttered. 3. Christine Racic Ms. Racic is the Family Support Program Coordinator with the Moose Jaw Family Service Bureau. She received the request for services from Social Services, and assigned worker. In this case, she was advised by Social Services that the worker was to supervise visitations. Someone patient, who would testify in Court was specified. As result, Stacy Dennison was chosen based on her studies in criminology, and her ability to communicate clearly with clients. At the conclusion of the contract, Ms. Racic reviews the worker’s report and signs off. She confirmed that the worker is to document all observations. The only time worker is to make comment is if the child is at risk of harm. Every month the worker prepares report which includes the following: child factors such as appearance; caretaker factors such as physical, mental and emotional engagement with the child and any changes. On February 3, 2011, there was visit at the Family Service Bureau. The foster mother brought the child, T.J.E.S., and noted that the baby had fallen and cut his lip and also had cold. At this visit Ms. Racic observed T.J.E.S. went to his mother who fed him, read and played with him. T.J.E.S. was laughing. It was noted the mother did not wash her hands prior to changing the baby’s diaper and brought food and snacks, some of which were inappropriate for the baby. The mother tried to engage the worker in conversation. It was noted that P.K. passed gas and had an erection during this visit. On cross-examination Ms. Racic reiterated that the worker was not to interpret events or act on any observations. If there is change in the home environment that could be danger to the child, she is to inform the care worker. She acknowledged that the observations were used as tool to predict what might happen. She stated it is important to record the parents’ behaviours as they act as role models. 4. Lois Thompson: Ms. Thompson has been the Outreach Coordinator for Moose Jaw Transition House for 17 years and worked at Moose Jaw Transition House for 31 years. For the past 16 years she has conducted an eight week course called “Woman’s Anger Expression Group.” The course is based on conflict or choice theory and assists women in setting goals and boundaries. The sessions are confidential and no notes are taken. M.S. came to the course the third week in January 2011. Ms. Thompson recalls M.S. being in the class and that she wanted her children returned. She observed M.S. attended regularly. M.S. spoke out and participated in group discussion. However, she also observed that M.S. was texting on occasion, and speaking out of turn. M.S. also responded that one of her goals was to “buy panties”. It was noted that she bought coffee and donuts for the group the last day. 5. Lisa Berry has worked at Moose Jaw Transition House for 10 years. She co-facilitated the group with Ms. Thompson. M.S. was in the group from January to March 2011. About the third session M.S. was asked to state her goal and she responded “make an underwear flag”. When asked again she said she wanted to get her “kids back”. Ms. Berry had to remind M.S. and another participant to be quiet when someone was speaking. On cross-examination she stated that M.S.’s goal about the “underwear flag” was very weird. She did note it was not just M.S. who was texting. M.S. attended all seven sessions. Her participation varied from week to week. The purpose of the session is to provide the women with tools and options to use in their daily lives when dealing with anger. 6. Gwen Knoll is registered Social Worker and the Director of Moose Jaw Family Service Bureau. About seventy percent of her time is devoted to counselling. Ms. Knoll saw M.S. and P.K. January 7, 2011. Four appointments were made by M.S. but only two were kept. At the first session Ms. Knoll explained the process and had the clients identify their issues. The second session M.S. stated they had problems with independence issues and boundary issues. M.S. was quite engaged. P.K. only responded when directly asked question. This is not unusual. M.S. left message cancelling future appointments as she had told P.K. to leave the home. Ms. Knoll offered M.S. individual counselling but had no further contact with her. 7. Donna Jones is child protection worker with the Ministry of Social Services. She has been in this position 10 years. She works with families to address child protection concerns where children are at risk. In June 2010 she received this file from Nicole Ansell who went on maternity leave. Ms. Jones first met M.S. and baby T.J.E.S. at scheduled visit in June. She introduced herself, reviewed where things were going and provided an opportunity for questions. M.S. questioned issues that had been dealt with such as the problem with breast feeding and DNA testing. M.S. wanted second opinion as to whether the baby was really allergic to her breast milk. Ms. Jones told M.S. these decisions had already been made and it was up to her to obtain and pay for second opinion. Ms. Jones related that M.S. continually contacted her, sometimes with unreasonable requests and other times it seemed more just to chat. M.S. had requested visits outside of the office such as at the park, Wal-mart or at Tim Hortons. The Ministry was pursuing permanent order so the visits had to be supervised at the office. Two supervised visits outside the office were allowed to have pictures taken. M.S. developed an acceptable routine when visiting. P.K. sometimes came to the visits, but often left early and did not actively participate. As the case management worker, Ms. Jones is to help parents recognize issues to be addressed and to motivate them to connect with the appropriate resources. Ms. Jones was aware of the history of the Ministry’s involvement with M.S. and the basis of the apprehension of the infant. She noted that M.S. was uncooperative with the Ministry previously in regards to services. Ms. Jones looked at previous parenting capacity assessments with respect to the other children. The same issues were still present such as M.S.’s failure to focus on the actual visit, inappropriate conversation, and inappropriate expression of anger. M.S. said she was willing to change and was prepared to work with the Ministry. In November and December 2010, M.S. called to discuss past and current concerns of P.K. sexually abusing the children. These concerns were discussed with M.S. and she was advised to report them to the police. Ms. Jones was also obligated to contact the police and report these allegations. P.K. also called. He admitted that he had child porn site on his phone. P.K. still wanted to see T.J.E.S. He had been to Mental Health to complete sexual offence risk assessment. After the pre-trial conference in December 2010, supervised visits at M.S.’s home occurred. Ms. Jones referred the parents to couple’s counselling to which they agreed. M.S. and P.K. needed to decide the status of their relationship. Ms. Jones referred and connected the parents with other resources such as the anger management program at the Transition House, parenting courses, and Mental Health. Ms. Jones was aware the Ministry had decided to seek permanent order on T.J.E.S. She reminded the parents of this many times and tried to talk to them about other outcomes. She wanted the parents to connect with some resources so they would feel more successful. Ms. Jones told M.S. about the Transition House anger management course as she felt M.S. still had anger issues. M.S. mentioned she had made an appointment to investigate mental health issues. M.S.’s level of cooperation varied depending on whether she was getting her way. On cross-examination Ms. Jones stated that she reviewed the complete file including the previous parenting assessments. She admitted that M.S. seemed to love and bond with the child. M.S. did nothing to harm the child. Ms. Jones repeated that at times M.S. was difficult to talk to, due to her inability to focus, her frustration, and being argumentative. Ms. Jones was concerned that she could become so unfocused or distracted that she could forget the child. M.S. admitted she had not been cooperative with the Ministry in the past. Ms. Jones agreed that people will jump through hoops to have their children returned and that people in desperate circumstances make desperate requests. 8. Gisela Hall has been supervisor at Family Services since 2004 and has worked for the Ministry since 1983. She is the supervisor of Donna Jones. Ms. Hall was part of the Permanency Planning Review committee that decides the type of order the Ministry will request. The committee reviewed the history of these parents with the Ministry, which included the orders with respect to the three older children, the 2007 parenting capacity assessment of Francis Stewart and the 2010 parenting capacity assessment of Dr. Tim Greenough. The committee concluded that between 2007 and 2010 there was no significant change in M.S.’s capacity to parent. The committee put great deal of weight on Dr. Greenough’s assessment. If Donna Jones, the present case worker, had suggested different recommendation other than permanent order, Ms. Hall would have had to discuss that with the committee. On cross-examination, Ms. Hall admitted there was no input from the client at the time the committee met. One of the tools the committee uses is risk assessment matrix called “Permanency Planning: children under eight years of age”. The result indicated that these parents have little chance of success. Ms. Hall admitted that generally the visits by M.S. with the baby had gone well the past year. She concluded that given the history and the opinion of the experts, the risk was too high to return this baby to M.S. even after temporary or supervisory order. 9. Dr. Tim Greenough was, by consent, qualified and allowed to give opinion evidence in the area of the preparation and assessment of parenting capacity. Dr. Greenough explained the process he follows which includes reviewing the history, previous assessments, meeting with the parents, observing the parents with the children in the home. He also conducts number of psychological tests and assessments, the results which are detailed in his report, Exhibit P3. draft copy of his report (without his opinion) is sent to the Ministry and the parents for feedback and then he completes and submits his final report. It is important to remember that Dr. Greenough’s report is an assessment of the parents’ capacity to parent in relation to the three older children. The assessment was done in early 2010, prior to the birth of T.J.E.S. This report documents the observations, tests and findings of Dr. Greenough. In making his assessment as to capacity to parent Dr. Greenough looks at the strengths and weaknesses of each parent. On the strength side he notes the following with respect to the mother, M.S.: She is of average intelligence; no physical ailments; no evidence of psychological pathology; cooperated with this process; the home was adequate; the child, J.S., expressed desire to live with her mother. On the weakness side of the equation Dr. Greenough notes the following in relation to M.S.: She comes from an abusive home, lack of stable work, history of drug use and no identified treatment; criminal involvements; risk taking, impulsive behaviour, weak and unchanged parenting skills; unrealistic career aspirations; unstable volatile relationship with P.K., did not complete the alternative to violence program; number of mental health issues and no sustained commitment to treatment; lack motivation to seek treatment; lack pro-social support; history with Social Services and lack of compliance with previous orders; motivation for attending classes driven by the Court process. Dr. Greenough described the same process for the father, P.K., noting many of the same weaknesses as for M.S. In addition, he noted that P.K. is of low intelligence, has criminal history, moderately unstable work history, high risk for depression, many mental health issues including fetish behaviour that have not been addressed and the unstable relationship with M.S. Dr. Greenough stated P.K. and M.S. should attend parenting groups and relationship or couple’s counselling. On cross-examination, Dr. Greenough testified that if the parents had been able to demonstrate some improvements in the noted weak areas, this would have moved his assessment in more positive direction. Dr. Greenough was familiar with the Francis Stewart report (Exhibit P2), but did not notice any of the unsanitary, unkept conditions noted by Mr. Stewart. Dr. Greenough stated some of his other findings as follows: concerns over lack of follow-up by M.S. regarding possible bi-polar disorder; concern she was minimizing previous drug involvements; acknowledgement that some people can quit using alcohol or drugs on their own and that the situational tests are not one hundred percent accurate. There had been many stressful events in M.S.’s life in the preceding 12 months prior to this that would elevate her parenting stress index. In particular the family dynamics involving J.A.S., M.S. and M.S.’s mother were tense. Dr. Greenough stated that individuals experiencing lot of stress may be less able to respond to the needs of child. Often day to day problems can be magnified out of proportion and person is less able to cope. He agreed that the child, T.J.E.S. is not assessed as high needs child. He stated that in the past the mother’s home life was unstable and abusive. The research shows that this can have an effect on one’s well-being and mental health. He agreed that one can be unemployed and good parent. His concern with respect to the mother’s history of not following court order is consistent with her history with the Ministry of Social Services. However, he agreed that as person matures, they are more likely to take direction or it is possible that an event such as these court proceedings can result in person “waking up”. Mr. Ottenbreit questioned Dr. Greenough about P.K.’s fetish for women’s underwear. The doctor stated that in most cases there is no criminal behaviour associated with this fetish. The potential impact would be on the child if he observed his father in women’s underwear and the potential financial impact on the family. In conclusion, Dr. Greenough testified that the father, P.K., was liability overall and if he was out of the picture some of the risks in returning the children would be decreased. 10. Jane Lynn is the current foster mother of baby T.J.E.S. She describes the child as very healthy, well-behaved, and plays alone or with others. child anyone would want. He is developing normally, although he has asthma. She takes T.J.E.S. to the Ministry’s office twice week for visits by the mother. Ms. Lynn has noticed on the drive home after the visits T.J.E.S. cries uncontrollably and is very fussy. The evidence for the parents: [13] Three witnesses testified, including both parents. P.K. testified he was currently part-time janitor at the military base. He has been with M.S. on and off for about nine years. He believes he is the father of the subject child. He acknowledged that he and M.S. have had history of domestic violence, the last incident was five years ago when he assaulted M.S. At the request of M.S. they have been living separate and apart since March 15, 2011. P.K. loves the baby, T.J.E.S., although he was nervous handling newborn. He has attended many of the visits and feels comfortable playing with the baby. He admits he has several issues to deal with and is continuing counselling and groups, such as Mental Health, parenting classes and anger management. He believes this will benefit him. He wants to visit this child. He spoke about his underwear fetish and the professional help he is seeking. He has no record for child abuse. On cross-examination, he acknowledged he has been involved with Mental Health on and off all his life. In 2010 he saw his mental health worker on an as needs basis. He also admitted to anger problems and in the past to slapping the child, J.A.S., which he acknowledges was wrong. He would like to visit the child T.J.E.S. if the child was returned to M.S. [14] Kayla Erbach is single mother on assistance. She has known M.S. and P.K. for five to six years. She observed the parents to be loving and caring with the two oldest children, J.A.S. and J.J.S. She never saw any drugs, alcohol or physical abuse in their home. [15] M.S. is the mother of the subject child, T.J.E.S. The older three children have been the subject of previous proceedings and on March 4, 2009 the two older children were placed with person of sufficient interest and the third child was made permanent ward of the Ministry. [16] M.S. seeks the return of her fourth child, T.J.E.S. M.S. admits that in the past she refused to seek help or follow any requirements of the Ministry. She testified she has had regular contact with baby T.J.E.S. since birth and she visited regularly as arranged with the Ministry. [17] In April 2010 she requested and obtained money from her financial worker, Mark Branning, to purchase baby layette and crib. Since she had no other information, she assumed she would be able to take her baby home. Shortly before she had the baby, she was told that the Ministry would be apprehending the baby. [18] In June 2010, her new worker, Donna Jones, clearly stated the Ministry was seeking permanent order. However, M.S. thought she might have T.J.E.S. returned to her if she took the suggested classes and counselling. She saw mental health counsellor and participated in one-on-one counselling. She is considered low priority and is on waiting list to see Colleen Pilkie, at Mental Health. [19] M.S. admitted her shortcomings. She is becoming more educated on how to parent. She is prepared to work with Social Services. She is more receptive to their suggestions. She acknowledged that in the past her house was dirty, and she was not following the Ministry’s suggestions or coping well. She acknowledged her past relationship with P.K. and that they have reconciled many times. They have not been together since March 2011. P.K. has his own place and new job. She emphatically states that the relationship has ended for good. She stated she is six weeks pregnant and the father is not P.K. [20] M.S. was working at the pork plant in Moose Jaw and plans to reapply at the end of June. If she returns to work she has checked out daycare and could make the necessary childcare arrangements. P.K. could visit the child on the weekends. She is renting two bedroom duplex, has playpen and other baby items, and she is able to get furniture. [21] M.S. explained some of her behaviour as described by the witnesses. She testified that in the past she was frustrated with the Ministry and was not meaning to be rude to the workers. She found Ms. Jones the most understanding of the workers. She admits that she often had lot of questions for Ms. Jones as she only had few opportunities to meet with her alone without the baby. In fact, she would have so many questions that she blurted them all out at the beginning of the visit. When the baby was present she was just interested in focusing on him. She loves the baby very much, especially when he greets her with his big smile and his arms out. [22] M.S. requested that some visits occur at the nearby park rather than the small, hot and stuffy, windowless room at the Ministry’s visiting area. She had snuggly for the baby. She explained her behaviour at the Transition House group as joke, that she went along with. She denies having cell phone but admits to chatting with one of the other participants. She explained that cell phone with texts relating to class material was being passed back and forth. On reflection she admits she should have waited her turn to speak. M.S. testified her first priority was her child. She does not use alcohol or drugs anymore. Alcohol has never affected her ability to look after her children. [23] On cross-examination, M.S. agreed she had extensive involvement with the Ministry over many years, both in Moose Jaw and Swift Current. She has started addressing some of the Ministry’s concerns. She had participated in programs in December 2010 and January through March 2011 prior to T.J.E.S.’s birth, participating in such groups as Kids First, Dealing with Anger, and Mental Health counselling. [24] Ms. Jones always stated the Ministry was seeking permanent order but M.S. was aware the Ministry’s position could change so she has never given up hope to have T.J.E.S. returned. The mother says she is prepared to follow through with meaningful participation in programming this time. When her older children were apprehended and she was younger, she thought she knew everything, and did not take the programs seriously. POSITION OF THE PARTIES: [25] The Ministry’s position is based on the following grounds: the history of the parents with the Ministry, the 2007 parenting capacity assessment of Francis Stewart (in relation to previous apprehensions of the older children), the February 2010 parenting capacity assessment of Dr. Tim Greenough, and the historical non-compliance and attitude of the parents, particularly M.S., the mother, with the Ministry. [26] The Ministry noted the parents did not provide any independent evidence to support their argument that they were taking steps to address the problem areas. It was not until the matter was set for trial did the mother take any positive steps. [27] The Ministry relies on the provisions of the Act that it is responsible for the welfare and protection of children. The Ministry must have regard to the child’s best interests and take into account the factors stated in section of the Act. [28] The Ministry argues that given the extensive past history involving three older children of M.S. and P.K., the Ministry properly apprehended T.J.E.S. pursuant to section 11(b) of the Act. The Ministry states the permanency planning committee was of the opinion there was no use putting off the inevitable. [29] The Ministry relies on Dr. Tim Greenough’s 2010 parenting capacity assessment. The Ministry is not convinced that the mother is able to sustain any of the changes she might have made. The Ministry is not convinced the mother will continue with any programming. [30] Counsel for the parents submits that there was no basis for the apprehension. He argued that the Ministry decided prior to the birth of the child to apprehend and as result did apprehend the child on April 20, 2010. He argues that the mother has never been given the opportunity to parent. The entire case against her is based on history with the Ministry in relation to three older children. [31] In addition, the evidence at this trial indicated that M.S. has had regular supervised visits with the child. She has acknowledged her past conduct and attitude. She has taken many steps to address the concerns of the Ministry. Counsel for the mother suggested that the Ministry decided that M.S. would not or could not change. ISSUES AND ANALYSIS: [32] In this particular case the Court must first decide whether the initial apprehension of this child, T.J.E.S., on April 20, 2010, was in accordance with the Act. [33] The analysis must start with careful consideration of s. 11 of the Act. The Ministry relies on s. 11(b) which reads as follows: 11. child is in need of protection where: (b) there is no adult person who is able and willing to provide for the child’s needs, and physical or emotional harm to the child has occurred or is likely to occur; [34] In A.J.R.M. (Re), 2010 SKQB 371 (CanLII), 365 Sask. R. 249, Madam Justice Rothery of the Court of Queen’s Bench found the child was in need of protection when the child was apprehended one day after birth. The baby was apprehended because the mother tested positive for residual amount of marihuana. As well, the confrontation at the hospital with the father made it essentially impossible to determine at that time if there was in fact any other option available rather than apprehending the child. [35] The Court also quotes with approval the July 22, 2009 decision of Madam Justice Ryan-Froslie, namely C.C.A.E. (Re), 2009 SKQB 308 (CanLII), 339 Sask. R. 239, where at paragraphs 30 to 32 the Court comments on the Ministry’s authority to apprehend child as follows: [30] Section 17 of The Child and Family Services Act governs the apprehension of children in Saskatchewan. While that section has not been the subject of direct judicial interpretation by the Courts of this Province, it was considered in obiter by Justice L’Heureux-Dube who rendered the majority decision for the Supreme Court of Canada in Winnipeg Child and Family Services v. K.L.W., [2000] S.C.R. 519, 2000 SCC 48 (CanLII). At para. 33 she stated: ... Saskatchewan’s warrantless apprehension also suggests an emergency criterion by requiring that the child be “at risk of incurring serious harm”, although apprehension is obviously last resort, since the provision stipulates that it can occur only where “no other arrangements are practicable”: The Child and Family Services Act, S.S. 1989-90, c. C-7.2, s. 17(1). [31] The stated objective of Saskatchewan’s child protection legislation is set out in s. of The Child and Family Services Act as follows: ... to promote the well-being of children in need of protection by offering, whenever appropriate, services that are designed to maintain, support and preserve the family in the least disruptive manner. Based on this section, apprehension of child which constitutes the most extreme form of state intervention should be viewed as last resort. (See: Winnipeg Child and Family Services v. K.L.W., supra, at para. 79). [32] It is clear that before an officer (in this case supervisor for the Ministry) apprehends child pursuant to s. 17 of The Child and Family Services Act they must conclude firstly, that child is in need of protection and secondly, that the child is at risk of incurring “serious harm”. Those conclusions must be based on reasonable and probable grounds. In addition, the officer is directed to consider all other reasonable options before proceeding with an apprehension. [36] Madam Justice Ryan-Froslie goes on to discuss the meaning of reasonable and probable grounds, as this term is not defined in The Child and Family Services Act, at paragraphs 34, 35, and 38 of C.C.A.E. (Re), supra, she states as follows: 34. Child protection legislation has long been viewed as quasi-criminal in nature. Legal counsel for both the Ministry and Fran indicated in argument that the phrase “reasonable and probable grounds” has the same meaning as that prescribed to it by Courts in the criminal law context. 35. Courts in all jurisdictions of Canada, including the Supreme Court of Canada, have discussed what is meant by “reasonable and probable grounds” in the criminal law context in circumstances relating to warrantless searches and seizures. While the phraseology varies, the theme is basically the same. Whether “reasonable or probable grounds” exist must be based on an objective view of the totality of the evidence in existence at the time the belief was formed. The test is not whether the belief was correct but rather whether it was reasonable in the circumstances having regard to the nature of the information relied upon (i.e. its strength and reliability). (See: R. v. Gill, 2008 SKQB 445 (CanLII), [2008] S.J. No. 679 (QL); R. v. Trask (1987), M.V.R. (2d) (N.S.C.A.) and R. v. Bernshaw, 1995 CanLII 150 (SCC), [1995] S.C.R. 254.) 38. In interpreting s. 40(7) of the Ontario legislation, Justice Quinn in the Children’s Aid Society of Niagara Region v. C.B., supra, at paras. 36 and 39, stated the following: [36] In criminal law, “reasonable and probable grounds” means “reasonable probability.” see no reason to ascribe different meaning in family law. (R. v. Debot, 1989 CanLII 13 (SCC), [1989] S.C.R. 1140.) ... Those risks [warranting an apprehension] are not defined or quantified in the Act. Nevertheless, the risks must be real in the eyes of the worker, in light of what she knew at the time and what she reasonably should have known; furthermore, the risks must be seen to be real by an objective observer when viewed in that same light. The risks here, although real, were low and the harm non-imminent and all protection concerns could have been satisfied, and satisfied easily, be means of an approach far less intrusive and heavy-handed than apprehension. [37] Did the Ministry have sufficient reasonable and probable grounds to believe that T.J.E.S. was in need of protection at the time of the apprehension? [38] Nicole Ansell testified that the decision to apprehend this child was based on the history of the parents and the three older children with the Ministry. The Ministry had worked with this family for six years and were of the opinion that the ability of M.S. to look after children was limited. M.S. and P.K. had history of domestic abuse. In particular, Ms. Ansell referred to the parenting capacity assessments of Mr. Stewart and Dr. Greenough, and the findings and decision of Judge Matsalla. The Ministry takes its responsibility to look after the best interests of child very seriously, and concluded it could not put the child at risk. [39] Francis Stewart is registered psychologist and his report dated January 19, 2007, was filed by consent as Exhibit P2 in these proceedings. Judge Matsalla in his March 4, 2009 decision regarding the three oldest children refers and relies heavily on this report. [40] Mr. Stewart reviewed the file history at the Ministry of Community Resources and Employment in July 2006 and started interviews with the parents in late August 2006. Further interviews, home observation and psychological tests were conducted at p. 50 to p. 52 of the report. Mr. Stewart makes it clear that these recommendations ... are done so to inform the referring agent of the opinions of the psychologist as to the best interest of particular child. The recommendations are not made with respect to parent’s wishes, but rather to that of the needs of the child. Many times, what parent wants and feel they need, are quite different from what the psychologist might determine that child needs.” [41] At this hearing, Dr. Tim Greenough testified with respect to more recent parenting capacity assessment. His curriculum vitae and report are filed as Exhibit and 3a respectively, in these proceedings. Dr. Greenough met M.S. and P.K. in their home in Moose Jaw, February 16, 2010. The report was completed in March 2010 and the children involved are again the three oldest. The child of the present apprehension was not yet born. [42] In my review of the evidence, noted that Dr. Greenough arrived at his conclusions by reviewing what he found to be the strengths and weaknesses of the parents. He made six recommendations as follows: 1. It is recommended that the children not be returned to M.S. and P.K.’s care. The writer was concerned that M.S. and P.K. have not made sufficient change or commitment to change to warrant the potential risks of returning the children to their home. 2. It is recommended that J.S. (April 27, 2002) be given greater opportunities to visit her mother. 3. It is recommended that J.S. (July 12, 2005) continue to have opportunities to see her parents. 4. It is recommended that P.K. participate in treatment and counselling to address anger issues as well as his concerns about his identity and feelings of depression. 5. It is recommended that P.K. and M.S. participate in parenting group. 6. It is recommended that M.S. and P.K. need to resolve whether or not they plan to stay together. Attending couple’s counselling may help resolve this issue. [43] At the time of apprehension the Ministry would have been aware that M.S. had full-term pregnancy, there were no problems noted at birth, and there was no indication of any birth defects or deformities or signs the baby was suffering from alcohol or drug withdrawal. There was no evidence to suggest that T.J.E.S. was anything but healthy baby boy. [44] The Ministry should also have been aware that M.S. had requested and received from her financial worker, monies to purchase layette for the baby, and that M.S. was not told that the baby was going to be apprehended until shortly before his birth. [45] This is the sum total of the information known to the Ministry, April 20, 2010. All the other testimony the Court heard was in relation to the time period from April 20, 2010 (after apprehension), to the date of trial. [46] shall now return to the question posed at the beginning of this discussion, is this child, T.J.E.S., in need of protection within the meaning of the Act. [47] The birth registration indicates 40 week pregnancy and baby weighing 3815 grams or 8.42 lbs. We did not hear of any problems at birth or birth defects. Dr. Greenough noted that responses to the substance abuse subtle screening inventory-3 (SASSI-3) by Muler (1997) indicated high probability of having substance dependence disorder. Earlier in his report, Dr. Greenough notes in telephone interview with Ms. Leslie Kisch of the Ministry that in 2007, Addiction Services tried to assess M.S. They determined she was not being truthful so no further services were provided. However, there is no evidence of drug or alcohol abuse by the mother. [48] The history of M.S. not cooperating with the Ministry is not being disputed. However, this was with three older children. The Ministry quite rightly gave M.S. many opportunities from 2002 to deal with the problems. The Act requires nothing less. [49] Counsel for the Ministry takes the position that this child is in need of protection immediately after his birth, due to the “history”. The Ministry’s entire case is based on the previous conduct of these parents and assessments that have been completed in relation to the three older children. [50] Counsel for the parents submits that the Ministry jumped in too soon. M.S. has never been given an opportunity to parent this child and therefore the “history” and previous assessments are of little value. Counsel quoted the case of (Minister of Social Services) v. E.(S), 1992 CanLII 8071 (SK QB), [1992] W.W.R. 289 (Sask. Q.B.), where Mr. Justice Baynton states at p. 296: ... the issue is not whether the children might be better off or happier or obtain better upbringing in the care of other parents then with their natural parents. The issue however really is whether the children concerned are receiving level of parenting care that is below the minimal standard that will be tolerated in our society. [51] It is clear that in the past, the level of parenting has not met the minimal standard. However, need to consider the time period as of April 20, 2010. The Ministry had decided prior to this time, to apprehend the child at birth and sent out an alert to the hospitals in the area. In the circumstances presented in evidence and pursuant to the factors set out in s. 11 of the Act, was the child in need of protection? cannot overemphasize that this child was not the subject of any previous apprehensions, court orders or decisions. This is fresh start for the parents, but for the baggage that comes with them that being their history with the Ministry. [52] The evidence and report of Dr. Tim Greenough (pages and 3a) provides more current information. However, this report and Dr. Greenough’s testimony must be considered with reference to the three older children. Dr. Greenough states that the purpose of his evaluation in 2010 was as follows: Mr. Sim Stinson (Lawyer) represented M.S. in her dispute with the Ministry of Social Services as to whether her three children should be returned to her care. Mr. Stinson requested that the writer conduct an evaluation of M.S. and her capacity to parent her children. [53] Dr. Greenough first met with the parents February 16, 2010, in their Moose Jaw home. He notes that “throughout the assessment process M.S. and P.K. appeared motivated and cooperative”. [54] Dr. Greenough analysed the parents’ situation in terms of strengths and weaknesses. He then concluded that these three older children should not be returned to the parents. At page 29 he states the parents have not made sufficient changes or commitment to change to warrant the potential risks of returning the children to their home. [55] find it useful to look at these strengths and weaknesses Dr. Greenough recorded in more detail and to do this will identify them in two columns as follows: 1. M.S. has at least average intellectual ability. 1. M.S. raised in an abusive home environment with high level of instability 2. M.S. has no physical ailments that compromise her ability to parent. 2. M.S. has not had successful work history and unemployed at the time of the evaluation. 3. M.S. displayed no clear evidence of clinical psycho pathology on her PAI profile. 3. M.S. has history using illicit drugs. M.S. claims she has not used for years but has had no identified treatment. 4. M.S. cooperated with the assessment process. 4. M.S. has recent criminal record for breaching recognizance. 5. P.K. appears to have been raised by adoptive parents who provided him with supportive healthy home. 5. M.S.’s profile consistent with other individuals who displayed risk taking and impulsive behaviour. This was in stable finding noted in previous evaluations. 6. P.K. is in good physical health. 6. Ministry’s PSI profile suggested that her interaction with J.A.S. was not rewarding for her. 7. J.A.S. would like to live with her mother and have more contact. 7. M.S. verbalized knowledge of parenting skills was weak and not substantially improved for 2007. 8. M.S. and P.K.’s house was adequate to meet the needs of their children. 8. M.S.’s career aspirations are unrealistic. 9. P.K.’s PAI profile suggests he is experiencing anxiety and tension. He is concerned with his personal relationship with M.S. his ability to communicate is compromised. He may be suffering from depression. 10. P.K. has history of difficulty with alcohol and may be at risk of using inappropriately in the future because of his anxiety and tension. 11. P.K. acknowledges some transient and fetish features involving women’s underwear. In the past he has taken J.A.S.’s underwear. 12. M.S. and P.K.’s relationship not stable since 2007. 13. P.K. has not completed alternative to violence program. Concerns about anger management. 14. M.S. and P.K.’s motivation for treatment lower than individuals seen in treatment settings. (PAI) Lack of consistent involvement in treatment is concern. 15. M.S. and P.K. lack prosocial support. 16. M.S. and P.K.’s history of not cooperating with Social Services. 17. M.S. and P.K. only recently participated or planned to participate in training and counselling. This suggests that their motivation is primarily driven. 18. P.K.’s work history is unstable. At June, unemployed. [56] Dr. Greenough noted two neutral observations, namely, P.K. is of low average intellectual ability, and P.K. has criminal history, the last charge being in 1990. [57] If P.K. is taken out of the equation there are five areas of strength for M.S. and 13 weaknesses for M.S. or M.S. and P.K. If one was to do mathematical approach, the outcome is clear. However, Dr. Greenough admitted, when asked by the Court, that each strength and weakness ought not be given equal weight. [58] Under the weakness column, in my view, numbers 1, 2, and should be accorded less weight. M.S. cannot change her background and it no doubt has had an effect on her. However, new skills and approaches can be learned. There are many reasons for M.S.’s poor work history no doubt. Some may have been due to the personality traits noted, but other explanations are lack of education, being young woman and lack of support. While in-patient treatment and counselling is part of an effective treatment plan for alcohol and drug abuse, the evidence presented does not indicate in the past year, in relation to this child that it is of concern. [59] Weakness numbers 14, 16, and 17 were emphasised by the Ministry. Again they are part of the history of the parents with the Ministry. accept these concerns. If the parents do not work with the Ministry in terms of attending and participating in programs the Ministry has less confidence that the best interests of the children will be taken care of. [60] acknowledge and commend the Ministry for recognizing the important role they play in protecting children. The Ministry is required to make difficult decisions based on information it has at the time. While the Ministry cannot predict behaviour, it still has to make an assessment of future behaviour which is often based on the past history of family with the Ministry. The Court in C.C.A.E. (Re), supra, put it well at paragraph 22: Children are among the most vulnerable members of society. They are dependent upon their parents and/or caregivers for the necessities of life and the protection of their physical, mental and emotional well-being. Sadly, parents and caregivers sometimes fail in their duty to protect and nurture the children in their care. Society and governments in general have long recognized the need to intervene to protect children from harm. This is universally recognized principle as evidenced by the United Nations Convention on the Rights of the Child to which Canada is signatory. It is also recognized in Canada by the existence of provincial child protection legislation. [61] At paragraphs 25 and 26 of C.C.A.E. (Re), the Court points out that it is “serious harm” or the threat of harm that provides sufficient grounds to apprehend child: That is not to say that child must suffer actual harm before it can be said they are in need of protection. The threat of harm may be sufficient. The word “harm” is synonymous with injury and includes wide spectrum of situations from slight and inconsequential harm to serious and grievous harm. It is “serious harm” that warrants the apprehension of child pursuant to s. 17(1) of The Child and Family Services Act. [62] Section 17(a) and (b) of the Act requires the officer (as defined in s. 2(m)) to not only have “reasonable and probable grounds, that child is in need of protection and at risk of incurring serious harm”, the officer is to take all reasonable steps to provide for the safety and welfare of the child including the offer of family services. Subsection 17(1)(b) goes on to state the child is only to be apprehended “where no other arrangements are practicable”. [63] There was no evidence presented at trial with respect to any attempts by the Ministry to pursue any less intrusive alternatives. The Ministry proceeded directly to the most severe position being a permanent order. In my view the evidence does not justify this position. There was no medical evidence to indicate that this baby had physical problems or that there were any problems with the pregnancy. [64] All the Court heard was that because of the past history of M.S. with her other children, the Ministry was not convinced that M.S. could sustain any change in improvement long-term. M.S. had not made much effort to follow any of the recommendations of the Ministry. It was after the apprehension that M.S. and P.K. made concerted effort to follow through with programming and counselling. [65] M.S. was not given any opportunity, due to the early apprehension, to parent this baby. equate this situation with the “hunch” Judge Morgan refers to supra. In my view, without something more, this is not sufficient to satisfy the “reasonable and probable grounds” requirement. It is not sufficient to establish that T.J.E.S. was in need of protection within the meaning of the Act at this point in time. [66] good portion of the evidence at trial concerned the actions of M.S. and P.K. after the apprehension. am unclear as to whether the Ministry was relating this evidence to bolster or justify its decision to apprehend T.J.E.S. at birth, or whether it was to convince the Court that permanent order under s. 37 is necessary in these circumstances. In order for this apprehension to be lawful within the meaning of the Act, there must be more evidence than M.S. being “bad parent” in the past. The events after April 20, 2010, cannot be used to justify the apprehension. Otherwise, every baby she may give birth to in the future will be apprehended at birth because of her “history”. [67] In conclusion, I have determined that T.J.E.S. was not in need of protection pursuant to s. 36(3) of the Act. dismiss this application. [68] As result of my finding that T.J.E.S. was not in need of protection on April 20, 2010, need go no further. However, assuming am incorrect and that T.J.E.S. was apprehended in accordance with the Act, will consider the appropriate order under section 37. [69] go back to the test as set out by McIntyre J. in E.K.S. at paragraph 49 as follows: The Court, having determined the child to be in need of protection, has determined that the level of parenting care is below the minimum tolerated by society. Therefore, in determining whether an order under s. 37(1) is appropriate, including conditions which could be attached, the court must be satisfied either: (a) The parent or parents have altered his or her ways such that the circumstances which gave rise to the determination that the child was in need of protection no longer exist, or (b) The court is satisfied that there is realistic plan or reasonable basis upon which to conclude that the necessary changes can occur within reasonable time whereby the children can be safely returned to the care of their parent or parents. (Saskatchewan (Minister of Social Services) v. A.J. and C.J. (1987), 1987 CanLII 4660 (SK CA), 58 Sask. R. 246 (C.A.); Saskatchewan (Minister of Social Services) v. M.L. and M.L.M. (1988), 1988 CanLII 4925 (SK QB), 71 Sask. R. 110 (U.F.C.); M.A.C. v. Saskatchewan (Minister of Social Services), supra; Saskatchewan (Minister of Social Services) v. R.G., supra.) [70] M.S. was quite candid in her evidence and past involvement with the Ministry. She was young, thought she knew everything and was not about to take much direction from anyone. M.S. is not shrinking violet. She has opinions and is not afraid to express them. She challenges opinions that she does not agree with and wants good solid reasons before she accepts another point of view. As young person she had her difficulties. She has been involved with P.K. for many years and he is the father of three of the children. Both M.S. and P.K. acknowledge the relationship has been abusive. The instability of the relationship has been commented on by Francis Stewart, Dr. Greenough and the Ministry. [71] M.S. and P.K. were living in the same house in 2010 when Dr. Greenough did his assessment. They had separate bedrooms and each was free to date others outside the home. Both claim the relationship is over. [72] Donna Jones has been involved with M.S. since Ms. Ansell went on leave in early June 2010. Visits were arranged at the Ministry office and Ms. Ansell noted that M.S. physically handled the child well. Breast feeding became an issue and was stopped on doctor’s orders. M.S. was not pleased and wanted another opinion. The foster mother was having to cope with little baby who was vomiting and very unhappy. M.S. is said to have persisted with Donna Jones requesting second opinion. This is only natural as breast feeding is way to bond with the baby and is generally recommended by the medical community. [73] M.S. was diligent in visiting twice weekly at the Ministry’s office. The fact that she asked to go to the park, mall or Tim Hortons is of no consequence other than indicating being confined in small room with baby for two hours can be tedious. [74] At trial, both parents testified they were living separate and had no intention of reuniting. They have said this before. However, M.S. confessed to seeing someone else and being six weeks pregnant. P.K. stated he had his own place and part-time job and he would like to have visiting rights. [75] The evidence presented by the Ministry and reviewed in some detail shows that M.S. has contacted and attended various programs since the spring of 2010. It is noted that most of the programming has occurred since January 2011. M.S.’s attendance has not been perfect but for the most part she called ahead when she was unable to attend. [76] accept the mother’s evidence and explanation of events from the past year. The witnesses for the Ministry confirm that the mother accessed various programs and participated in them. She did not attend all appointments but called ahead to cancel and/or reschedule. There was evidence from Lois Thomson and Lisa Berry that she did not always respect the group rule of one person talking at time. There was also the panty flag incident. The mother explained both incidents and am not prepared to conclude from such incidents that she is not able to care for her baby. The Ministry argues that these are just examples of the mother’s impulsivity and inability to focus. This coupled with all the phone calls, and questions of her worker, Donna Jones, along with sometimes carrying on conversation with the worker when having supervised visit, having an unrealistic career goal as related by Dr. Greenough all point to the fact that the situation meets the requirements of s.11(b) of the Act, according to the Ministry. [77] am satisfied that M.S. is making progress. She has explained her version of the problems encountered in some of the classes such as talking, joking around and the panty flag. acknowledge M.S. may be making light of these incidents. On the other hand, because of her history, am concerned the Ministry may be attaching too much weight to these episodes. Overall, conclude M.S. is addressing some issues as identified by the Ministry. She is now 28 years of age and with the passage of time she is maturing. She realizes that she needs to establish positive track record. [78] Dr. Greenough noted that the home was clean and tidy, adequately furnished and the cupboards stocked with proper food. The house was in neighbourhood not associated with lot of crime/vandalism. [79] The weaknesses that would be of the most concern and most relevant are #5 and #7 on my chart. In regards to the risk taking and impulsive behaviour finding, there is nothing more than this profile. There was no evidence presented for the Court to draw the inference that this type of behaviour would result in the baby being at risk. The “underwear flag” episode is not sufficient. [80] The other weakness was the mother’s lack of improvement since 2007 of her ability to verbalize parenting skills as measured by the Parent Awareness Skills Survey. [81] Again, Dr. Greenough gave an example of scenario he used with M.S. (the year old took toy of the year old). He concluded her answer did not demonstrate sufficient grasp of parenting skills. In my view, her answer was practical and appropriate solution to the matter that any parent might use. It is true the answer did not incorporate verbally the stages of child development and theory. However, the practical solution of speaking to each child at an age appropriate level incorporated some understanding of child development. M.S. did not over-react and clobber the year old. [82] In the recent case (June 16, 2011) of Saskatchewan (Minister of Social Services) v. D.D., T.D. and J.D., 2011 SKPC 76 (CanLII), 2011 SKPC 076, Judge B. Morgan states at para. 45: However, once the decision to apprehend is made, s. 17(3) also places positive statutory obligation upon the worker to return the child to his or her custodian if the officer no longer believes child would be at risk of incurring serious harm if returned. Thus, Ministry officials are required to reassess the situation on an ongoing basis (see M. (A.J.R.), Re, 2010 SKQB 371 (CanLII), para. 32). [83] Since the birth of T.J.E.S. the evidence was that the mother has made significant efforts as required by the Ministry. Although not perfect, she is moving in the right direction, and in my view making some considerable efforts. She is showing progress in attitude and actions. [84] The legislation requires the Court “to promote the well-being of children in need of protection” and “to determine the best interests of child”. have considered the factors enumerated in section 4, in light of the evidence. conclude that even if the apprehension was in accordance with the Act, would return the child to the mother pursuant to s. 37(1)(a). SUMMARY: [85] I have found that there was no basis for the initial apprehension. [86] Therefore, the Act requires that the child, T.J.E.S., shall be returned to the mother, M.S., who is a person who has a right to custody of the child pursuant to s. 36(3) of the Act. The “best interests of the child” is an important factor in all orders. am satisfied have jurisdiction to order the return be done following transition period. This shall be done on a transitional basis as determined by the Ministry. T.J.E.S. is to be completely returned to the mother, M.S., within 30 days of this order. P.K., the father, is not living with the mother and requested only access. Dated at Moose Jaw, Saskatchewan, this 28th day of July, 2011. M.T. Gordon,

The Ministry brought an application for a permanent order for the child pursuant to s. 37 of The Child and Family Services Act. The Minister apprehended the child at birth. The mother's three older children had been apprehended with two other older children placed with a person of sufficient interest and the third child was made a permanent ward of the Ministry. The Minister argued that given the extensive past history of the three older children, the Minister properly apprehended the infant and the permanency planning committee was of the opinion that there was no use putting off the inevitable permanent order for the child. The mother and the child's father had separated with the father supporting the mother having the child returned to her care and the father having access to the child. HELD: There was no basis for the initial apprehension as the child was not in need of protection. The child shall be returned to the mother who is a person who has a right of custody of the child pursuant to s. 36(3) of the Child and Family Services Act. This shall be done on a transitional basis as determined by the Ministry with the child to be completely returned to the mother within 30 days of this order. There was no evidence presented at trial regarding attempts by the Ministry to pursue any less intrusive alternatives and instead proceeded directly to the most severe position being a permanent order. The evidence did not justify the Ministry's position.

4_2011skpc127.txt

NOVA SCOTIA COURT OF APPEAL Citation: Quigley v. Willmore, 2007 NSCA 122 Date: 20071212 Docket: CA 287370 Registry: Halifax Between: Karen Agnes Quigley v. Gary Willmore Respondent Judge: The Honourable Justice Elizabeth Roscoe Application Heard: December 6, 2007, in Halifax, Nova Scotia, in Chambers Held: Application for a stay pending appeal is dismissed with costs in the cause. Counsel: David Bright, Q.C., for the appellant Gordon R. Kelly, for the respondent Decision: [1] The appellant appeals from and applies for a stay of execution of an order setting aside her petition for divorce made by Justice Darryl W. Wilson of the Supreme Court (Family Division). On an application by the respondent to set aside the divorce petition on the basis that Nova Scotia lacked jurisdiction, Justice Wilson determined that the appellant had not been ordinarily resident in Nova Scotia for at least one year immediately preceding the filing of the petition, as required by s.3 of the Divorce Act, R.S.C. 1985, (2nd Supp.), c. 3. [2] In the decision under appeal, Justice Wilson set out the history of the relationship between the parties and made several findings of fact respecting the residence of the appellant during the marriage and for the year prior to the commencement of the divorce proceedings. See: 2007 NSSC 305 (CanLII). The judge concluded that the appellant was ordinarily resident in Texas for at least seven of the twelve months prior to November 7, 2006 when the petition was filed in Nova Scotia. The order of Justice Wilson sets aside the petition for divorce and declares that all interim orders, interlocutory orders, execution orders, and judgments in the proceeding are void. Included in the orders declared void are interim orders giving custody of the eight year old child of the marriage to the appellant, and providing for access, child support and spousal support. As well an order has issued releasing the respondent’s interest in the Nova Scotia matrimonial property, subject to accounting at later date. [3] The respondent commenced divorce proceedings in Texas on November 9, 2006. temporary order issued in Texas on March 30, 2007 states that the District Court for the 253rd Judicial District in Liberty County Texas has jurisdiction of the case and of all the parties. It also appoints both parents as “temporary joint managing conservators of the child of the marriage” and provides that the appellant mother has “... the exclusive right to designate the primary residence of the child within Hantz (sic) County, Nova Scotia or Liberty County, Texas”. The respondent is obligated to pay child support. [4] The appeal of Justice Wilson’s decision has been scheduled to be heard by this court on April 10, 2008. It is acknowledged by counsel that stay of the order under appeal would not operate to stay the on-going proceedings in Texas. [5] The Rule under which the application is brought states: Stay of execution (1) The filing of notice of appeal shall not operate as stay of execution of the judgment appealed from. (2) Judge on application of party to an appeal may, pending disposition of the appeal, order stayed the execution of any judgment appealed from or of any judgment or proceedings of or before magistrate or tribunal which is being reviewed on an appeal under Rules 56 or 58 or otherwise. (3) An order under rule 62.10(2) may be granted on such terms as the Judge deems just. (4) Interest for such time as execution may be delayed by an appeal shall be allowed on the judgment at the rate of six per cent (6%) per annum from the filing of the notice of appeal, unless otherwise ordered by the Court or Judge, and the interest shall be added to the judgment on execution without an order for that purpose. (5) Nothing herein prevents the staying of execution or proceedings by the court appealed from, as authorized by rule of court or by an enactment. (6) Where an execution has been issued and is thereafter stayed as provided in this rule 62.10 the appellant is entitled to obtain certificate from the Registrar that the execution has been stayed pending the appeal, and, upon the certificate being lodged with the sheriff, the execution shall be superseded, but the execution debtor shall pay the sheriff's fees and the sum so paid shall be allowed to him as part of the costs of the appeal. (7) Where the execution of judgment is stayed pending an appeal, all further proceedings in the action other than the issue and recording of the judgment in the office of the Registrar of Deeds and the taxation of costs thereunder, shall be stayed unless otherwise ordered by the Court or Judge. [6] Counsel for the appellant submits that the effect of stay would be to allow the appellant’s divorce action in Nova Scotia to remain active, allow her to continue enforcement proceedings of the Nova Scotia courts’ interim orders, and most importantly, to use these orders as justification for not complying with any conflicting orders from the Texas courts. It is not suggested that the appellant would seek to have the Family Division proceed with the divorce hearing or grant any final orders pending the appeal of the jurisdiction order. [7] Counsel for the respondent argues that since the appellant is not required to do anything pursuant to Justice Wilson’s order, stay of execution is not appropriate. There is no pending execution order to be stayed. He submits that the appellant is essentially asking for an interim order temporarily allowing the appeal. [8] I tend to agree with the respondent that the order under appeal is not one which lends itself to being stayed in accordance with Rule 62.10 and that the application for a stay should be dismissed for that reason. In Prince Edward Island (Director of Child Welfare) v. M. (H.), [1989] P.E.I.J. No. 167; 81 Nfld. P.E.I.R. 93, Mitchell, J.A., as he then was, in case where the appeal was from declaratory judgement, said: It is my opinion that Rule 62.15 has no application in this case because the decision of Campbell, J. was merely declaratory and does not call for or contemplate any consequential relief or require the taking of any further steps to enforce it. This rule does not provide for staying "decision", rather it calls for "stay of proceedings under the order appealed from". In other words, the stay contemplated by Rule 62.15 applies to proceedings to enforce or give effect to decision not to the decision itself which has already been rendered. Rule 62.16 generally provides that where an order is stayed under 62.15, no steps may be taken under the order appealed from for its enforcement. Here there are no proceedings that follow from the judgment of Campbell, J. which could be the subject of stay. His decision is merely declaratory as to the state of the law. There is nothing that has to be done to enforce or to give effect or to carry out his decision. No steps have to be taken to enforce his declaration. There simply are no "proceedings under the order appealed from" to be stayed. Accordingly, would dismiss the application for stay. [9] The wording of the Nova Scotia Rule is different from that in Prince Edward Island, but in my view the intent of our Rule is to provide for stay that stops further proceedings or suspends the payment of funds. In R. v. Jewitt, 1985 CanLII 47 (SCC), [1985] S.C.R. 128, Dickson, C.J. described stay of proceedings as follows at p. 137: stay of proceedings is stopping or arresting of judicial proceedings by the direction or order of court. As defined in Black's Law Dictionary (5th ed. 1979), it is kind of injunction with which court freezes its proceedings at particular point, stopping the prosecution of the action altogether, or holding up some phase of it. stay may imply that the proceedings are suspended to await some action required to be taken by one of the parties as, for example, when non‑resident has been ordered to give security for costs. In certain circumstances, however, stay may mean the total discontinuance or permanent suspension of the proceedings. [10] In this case, what is sought by the appellant would have the opposite effect. stay does not normally have the effect of permitting matter that has been dismissed to continue pending an appeal. [11] In the event however that am taking too narrow view of the Rule and thus in error with respect to the appropriateness of stay of execution in this proceeding, will assume without deciding that stay is an available remedy and proceed to deal with the application on the usual basis. [12] The notice of appeal sets out the following grounds: 1. That the Learned Trial Judge erred in his determination as the Appellant’s residency status within the meaning of Section of the Divorce Act; 2. That the Learned Trial Judge failed to properly consider the relevant facts related to the issue of residency when determining the legal issue of residency; 3. That the decision of the Learned Trial Judge is perverse and unreasonable in that it is not supported by the evidence; and 4. Such other grounds of appeal as may arise upon review of the transcript of the evidence. [13] The test to be applied in determining whether or not to grant stay is set out by Hallett, J.A. in Fulton Insurance Agencies Ltd. v. Purdy (1991), 1990 CanLII 2357 (NS CA), 100 N.S.R. (2d) 341 (C.A.) at pp. 346‑347: review of the cases indicates there is trend towards applying what is in effect the American Cyanamid test for an interlocutory injunction in 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: (i) that there is an arguable issue raised on the appeal; (ii) 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 trial has executed on the appellant's property, whether or not the appellant if successful on appeal will be able to collect, and (iii) that the appellant will suffer greater harm if the stay is not granted than the respondent would suffer if the stay is granted; the so‑ called balance of convenience or: (2) failing to meet the primary test, satisfy the court that there are exceptional circumstances that would make it fit and just that the stay be granted in the case. [14] In Coughlan et al. v. Westminer Canada Ltd. et al. (1993), 1993 CanLII 3254 (NS CA), 125 N.S.R. (2d) 171, Justice Freeman explained what is meant by an "arguable issue" at 11: 'An arguable issue' would be raised by any ground of appeal which, if successfully demonstrated by the appellant, could result in the appeal being allowed. That is, it must be relevant to the outcome of the appeal; and not be based on an erroneous principle of law. It must be ground available to the applicant; if right of appeal is limited to question of law alone, there could be no arguable issue based merely on alleged errors of fact. An arguable issue must be reasonably specific as to the errors it alleges on the part of the trial judge; general allegation of error may not suffice. But if notice of appeal contains realistic grounds which, if established, appear of sufficient substance to be capable of convincing panel of the court to allow the appeal, the Chambers judge hearing the application should not speculate as to the outcome nor look further into the merits. Neither evidence nor arguments relevant to the outcome of the appeal should be considered. Once the grounds of appeal are shown to contain an arguable issue, the working assumption of the Chambers judge is that the outcome of the appeal is in doubt: either side could be successful. [15] The grounds of appeal appear to raise issues of fact and question of mixed fact and law which typically require palpable and overriding error before this court would interfere with the judgment under appeal. However, the threshold necessary to demonstrate an arguable issue is not high nor is it dependent upon detailed assessment of the likelihood of success on appeal. See: Royal Bank of Canada v. Saulnier, 2006 NSCA 108 (CanLII) 10. Although not specified in the notice of appeal, one of the arguments made in support of the stay application is that the judge erred in not severing the applications made under other legislation, namely the Matrimonial Property Act and the Maintenance and Custody Act from those under the Divorce Act before declaring all interim orders to be void. That possibility does not appear to have been suggested as an alternative to the judge. Although it does not appear that any order was made pursuant to the Maintenance and Custody Act, suppose this court could amend the order of Justice Wilson to preserve whatever rights might have accrued to the appellant pursuant to her applications under provincial legislation joined with the divorce petition. This argument might be of sufficient substance to allow the appeal at least in part on that basis. find therefore that there is an issue that meets the arguable standard. [16] The appellant argues that she and her son will suffer irreparable harm if stay is not granted. Her position is that if the stay is refused and all the Nova Scotia interim orders are voided, the Texas court will be the only court with jurisdiction over all matters of custody, access and child support. It would then be necessary for her to travel to Texas to take part in the proceeding there, leaving her practice of law for an extended period and uprooting her son who is settled in school here now. Then if the order of Justice Wilson is reversed on appeal it will be too late to revive the Nova Scotia action at that point. Since she has, to date, not completely complied with the access orders of the Texas court, she fears that she will be found in contempt and imprisoned. hearing on that issue and to determine whether custody should be changed is scheduled to be heard in Texas on December 20, 2007. [17] The problem with the appellant’s argument in this respect is that the Texas court is free to continue its proceeding whether the stay is granted or not. Until such time as there is a resolution of the conflicts of law issue, it seems that it would be risky not to participate in the process there. Her decision whether to take part in the proceedings there is not logically entirely dependant on whether there is stay of Justice Wilson’s order. Ignoring the Texas hearings and orders invites contempt proceedings even if the appeal of the Justice Wilson’s order were allowed and whether or not stay of that order is granted. [18] The irreparable harm claimed by the appellant is at this point entirely speculative. If the Texas court did grant custody to the respondent, that order would have to be registered in Nova Scotia to be enforced. Since Texas is not a reciprocating state pursuant to the Reciprocal Enforcement of Custody Orders Act, 1989, R.S.NS, c. 387, the Child Abduction Act, 1989 R.S.N.S., c. 67 which implements the Hague Convention on the Civil Aspects of International Child Abduction would be applicable. Pursuant to that statute, a Nova Scotia court would have jurisdiction to determine whether the child’s habitual residence was in Nova Scotia or Texas and if the appellant was wrongfully retaining the child in Nova Scotia. It is unlikely that process would be underway before this court determines the appeal of Justice Wilson’s order. [19] Another consideration is that if the application for stay is dismissed, the appellant could file new petition for divorce because she has apparently established the residency requirement now. If the stay were granted, she would not have that option because she would not be able to have two petitions outstanding. See C.P. Rule 57.06(6)). If the appellant commences new divorce action, she would be in position to apply for new interim custody order and present her forum conveniens and best interests of the child arguments to Nova Scotia court. For these reasons, do not accept the appellant’s irreparable harm submission. [20] Having found that there would be no irreparable harm if the stay is not granted, it is not necessary to deal with the balance of convenience factor. [21] With respect to the secondary test, it is submitted on behalf of the appellant that there are exceptional circumstances making it just and fit that the stay be granted. The appellant says the jurisdictional uncertainties and the child’s best interests present exceptional circumstances. [22] Recently in W. Eric Whebby Ltd. v. Doug Boehner Trucking Excavating Ltd., 2006 NSCA 129 (CanLII), Justice Cromwell considered the secondary test and explained that it is rarely satisfied: [11] Very few cases have been decided on the basis of the secondary test in Fulton. Freeman, J.A. in Coughlan et al. v. Westminer Canada Ltd. et al. (1993), 1993 CanLII 3254 (NS CA), 125 N.S.R. (2d) 171 (C.A., in Chambers) at para. 13 offered as an example of exceptional circumstances case in which the judgment appealed from contains errors so egregious that it is clearly wrong on its face. As Fichaud, J.A. observed in Brett v. Amica Material Lifestyles Inc. (2004), 2004 NSCA 93 (CanLII), 225 N.S.R. (2d) 175 (C.A., in Chambers), there is no comprehensive definition of "exceptional circumstances" for Fulton's secondary test. It applies only when required in the interests of justice and it is exceptional in the sense that it permits the court to avoid an injustice in circumstances which escape the attention of the primary test. [12] While there is no comprehensive definition of what may constitute "exceptional circumstances" which may justify stay even if the applicant cannot meet the primary test, those exceptional circumstances must show that it is unjust to permit the immediate enforcement of an order obtained after trial. So, for example, in Fulton itself, Hallett, J.A. found that exceptional circumstances consisted of three factors in combination: first, that the judgment was obtained in summary proceeding rather than after trial; second, that on the face of the pleadings the appellant raised what appeared to be an arguable issue and, thus, was likely to be successful on appeal; and third, the appellant had counterclaim and claim to set off that had not been adjudicated making it premature to execute on the summary judgment. [13] While there can be no comprehensive definition of what constitutes special circumstances, they must be circumstances which show that it would be unjust to permit immediate enforcement of the judgment. This is because stay of execution, in common with interim injunctive relief, must justly apportion the risk of uncertainty about the ultimate outcome of the case. There are arguable issues raised on appeal, but one cannot at this stage speculate about what the outcome of the appeal will be. The risk created by this uncertainty is shared by both the appellant and the respondents. If stay is granted and the appeal ultimately fails, the respondents will have been kept out of their money needlessly. If, on the other hand, the stay is denied and the appeal ultimately succeeds, the appellant will have been required to pay the judgment needlessly. [23] In this case see no obvious or egregious errors in the decision under appeal, and as indicated above, issuing stay does not impact upon the Texan proceedings and there is no pending execution order to be stayed. This is not case where issuing stay would prevent an injustice. Having considered the submissions made in this case, am not persuaded that any exceptional circumstances exist here. [24] I dismiss the application for a stay pending appeal. Costs of this application will be in the cause. Roscoe, J.A.

Two days after the wife commenced a divorce action in Nova Scotia, the husband commenced one in Texas. He successfully applied to have the wife's divorce petition set aside on the grounds that she had not been ordinarily resident in Nova Scotia for at least one year immediately prior to the commencement of the proceeding. The wife applied for a stay of execution pending her appeal of this decision. She argued irreparable harm to herself and the parties' child on the basis that if the stay was refused, she would be required to travel to take part in the Texas proceeding, leaving her law practice for an extended time and uprooting the child who was settled in school here. She also feared that she would be found in contempt for failing to obey the Texas custody orders and be imprisoned. Application for stay pending appeal dismissed; the irreparable harm claimed by the appellant was entirely speculative at this point as if the Texas court did grant custody to the father, under the Child Abduction Act, a Nova Scotia court would have jurisdiction to determine the child's habitual residence and whether the appellant was wrongfully detaining him here. Given that the Texas court would be free to continue its proceeding even if a stay was granted, until such time as the conflict of laws issue was resolved, it would be risky for the appellant not to participate in the process there. Furthermore, the order under appeal was not one that lent itself to being stayed under Rule 62.20.

2_2007nsca122.txt

nan CANADA S. LP. O. 0772 PROVINCE OF NOVA SCOTIA IN THE SUPREME COURT OF NOVA SCOTIA HER MAJESTY THE QUEEN versus JACK SCOTT COOK DECISION HEARD BEFORE: THE HONOURABLE JUSTICE HIRAM J. CARVER DECISION: MAY 17, 1995 WRITTEN RELEASE OF DECISION: MAY 17, 1995 COUNSEL: C. CRAIG HARDING, FOR THE PROSECUTION; DUNCAN BEVERIDGE, FOR THE DEFENCE CARVER, J.: This is an appeal by the appellant, Jack Scott Cook, from a decision of The Honourable Judge Anne E. Crawford wherein she convicted the appellant of the offence of driving a motor vehicle on September 4, 1992 while his ability to operate a motor vehicle was impaired by alcohol. GROUNDS OF APPEAL: 1. That the Learned Trial Judge erred in law in misapprehension of evidence and in failing to have regard to or direct herself to all of the evidence bearing on the relevant issues; 2. That the Learned Trial Judge erred in law in that she failed to direct herself or misdirected herself in law as to the appropriate burden of proof in a criminal case; 3. That the Learned Trial Judge erred in holding that the Appellant's ability to operate motor vehicle was impaired by alcohol or drug within the meaning of s.253(a) of the Criminal Code; 4. That the Learned Trial Judge erred in her interpretation of the phrase "while the person's ability to operate the vehicle is impaired by alcohol" as found in s.253(a) of the Criminal Code that the verdict is unreasonable or cannot be supported by the evidence; 5. Such further and other grounds as may be apparent from the transcript of the evidence and may be allowed by this Honourable Court. ISSUES: 1. Did the trial judge err in law in failing to direct herself in law as to the appropriate burden of proof in a criminal case? 2. Did the trial judge utilize the absence of evidence from the appellant to conclude that the appellant was impaired and therefore fell into error; 3. Did the trial judge err in holding that the appellant's ability to operate motor vehicle was impaired by alcohol within the meaning of s.253(a) of the Criminal Code. FACTS: The trial judge found Mrs. Conrad was travelling behind another motor vehicle and, while slowing down to turn right at an intersection, was struck from behind by the appellant's motor vehicle. Mrs. Conrad described the appellant when she met him after the collision as walking unsteadily and holding on to the van. She said when he saw her he said "Hi" which she thought was inappropriate in the circumstances. She noted no slurring. From her decision, Judge Crawford accepted the evidence of Constable Vincent. This she sets forth as follows: "Constable Vincent noted what he described as slight slurring of the accused's speech sufficient, so that he described it as being 'different from the norm'. wonder if he had been reading Smith. He also noted that the defendant was swaying on his feet, that his eyes were bloodshot and that his pupils were open and dilated. He asked the defendant if he had been drinking tonight and the defendant replied that he had not been drinking since 6:00 p.m. that evening and he added, 'I was driving in straight line and this girl pulled out in front of me.' Which is to be noted, is very different explanation of the accident from that established by the Crown from Mrs. Conrad's evidence, where Mrs. Conrad said that she was slowing for turn." The trial judge's decision consisted of opening remarks, the facts as have set forth above, and her dosing remarks. In her opening remarks she said: "THE COURT: have reviewed the cases to which have been referred and I'm satisfied that the test Is simply the test that the Crown must meet in any case on any issue, and that is, has the Crown proven beyond reasonable doubt on the facts as presented, that in this case, the accused's ability to drive was impaired by alcohol or drug." In her closing remarks she said: "Mr. Beveridge in his argument, urged me to consider that most, if not all of the indicia noted could be explained by other factors and, individually, that certainly could be the case. However, taking all of the indicia together, together with the fact that there was no explanation offered other than speculation in summation, find that the only reasonable explanation for all of the indicia that have mentioned is thatthe accused was impaired and that his ability to drive was impaired by alcohol or drug. so find and therefore find that he is guilty as charged." THE LAW: In the case of R. v. Stellato, (1993) 1993 CanLII 3375 (ON CA), 78 C.C.C. (3d) 380 Ont.C.A., Labrosse, J.A. made reference to comments made by Mitchell, J.A. in the case of R. v. Campbell (1991) 26 M.V.R. (2d) 155 (P.E.I. CA): "The Criminal Code does not prescribe any special test for determining impairment. It is an issue of fact which the trial Judge must decide on the evidence. The standard of proof is neither more nor less than that required for any other element of criminal offence. Before he can convict, trial Judge must receive sufficient evidence to satisfy himself beyond reasonable doubt that the accused's ability to operate motor vehicle was impaired by alcohol. It is not an offence to drive motor vehicle after having consumed some alcohol as long as it has not impaired the ability to drive. However, person who drives while his or her ability to do so is impaired by alcohol is guilty of an offence regardless of whether his ability to drive is greatly or only slightly impaired. Courts must therefore take care when determining the issue not to apply tests which assume or imply tolerance that does not exist in law. Trial judges constantly have to keep in mind that it is an offence to operate motor vehicle while the ability to do so is impaired by alcohol. If them is sufficient evidence before the court to prove that the accused's ability to drive was even slightly impaired by alcohol, the Judge must find him guilty." In R. v. White, 130 N.S.R. (2d) 145 N.S.C.A., Justice Chipman under #66 stated: "In my view the words 'impaired by alcohol' in the Criminal Code raises an issue for the trier of fact in each case. would resist any attempt to further define these words, but do reject the proposition that by the use of such plain and simply words, parliament intended to adopt some standard involving marked departure from the norm or other graduated standards." The above statements set forth the law to be applied in this case. In the case before us the trial judge carefully reviewed the evidence relating to the appellant's condition on the evening in question. She found as fact the appellants ability to drive was impaired by alcohol. When one considers the fact there was rear end collision on the 103 Highway; that the appellant walked unsteadily while holding on his van; that his speech was slightly slurred; that he was swaying on his feet; that his eyes were dilated; and that he thought this other car pulled out in front of him when in fact she was making right hand turn off the highway, there was ample evidence for the trial judge to find the Crown had proven its case beyond reasonable doubt. I find the trial judge applied the correct test for impairment. find she did not err. As to whether the trial judge utilized the absence of evidence from the appellant to conclude the appellant was impaired, find she did not. To understand her comments you must read them together and consider the fact she was responding to speculations made by defence counsel during his summation. find the trial judge committed no err. I dismiss the appeal with costs in the amount of $300.00 to the Crown which will be payable to the Clerk of the Crown on or before June 30, 1995 who will then disburse it to the Crown.

The appellant appealed his conviction for impaired driving, contending the trial judge failed to direct herself in law as to the appropriate burden of proof. Dismissing the appeal, that the trial judge applied the correct test for impairment. The Criminal Code does not prescribe special tests for determining impairment. The trial judge must receive sufficient evidence to satisfy him or herself beyond reasonable doubt that the accused's ability to operate motor vehicle was impaired by alcohol. On Appeal.

e_1995canlii4493.txt

NOVA SCOTIA COURT OF APPEAL Citation: Hogeterp v. Huntley, 2007 NSCA 75 Date: 20070621 Docket: CA 277641 Registry: Halifax Between: Theodore Hogeterp v. Joellen Lynn Huntley, by her litigation guardian, Byron Huntley, Louise Huntley, Andrew Larkin and Karen Larkin Respondents Judges: Roscoe, Saunders and Oland, JJ.A. Appeal Heard: June 12, 2007, in Halifax, Nova Scotia Held: Leave to appeal is granted and the appeal is dismissed with costs, per reasons for judgment of Roscoe, J.A.; Saunders and Oland, JJ.A. concurring. Counsel: Michael Dunphy, Q.C. and Michelle Kelly, for the appellant Nancy G. Rubin, for the Larkin respondents Raymond Wagner, for the Huntley respondents Reasons for judgment: [1] This is an application for leave to appeal and, if granted, an appeal from an order of Justice Glen G. McDougall dismissing a summary judgment application brought by the defendant, Theodore Hogeterp. Background: [2] On April 18, 1996 a car driven by 16 year old Andrew Larkin veered off the road and struck a power pole on Route 359, Centerville, Nova Scotia. Two of the passengers, his sister, Elizabeth Larkin age 8, and Brian Thompson age 15, were killed. The third passenger, Joellen Huntley, also 15 at the time, suffered severe injuries including traumatic brain injury that has rendered her unable to communicate, totally disabled and totally dependant. The driver said that he swerved to avoid hitting a dog that ran onto the highway in front of the car. [3] Joellen Huntley and her parents brought action against Andrew Larkin and his mother, who owned the vehicle, alleging negligence in the ownership and operation of the vehicle. They also named Theodore Hogeterp as a defendant. Mr. Hogeterp was a farmer who owned land on both sides of the road at the site of the accident. The plaintiffs contend that he owned the dog in question and they allege negligence in failing to keep his dog off the highway. [4] The defence of Mr. Hogeterp is that he was not the owner of the dog in question. The defendants have cross-claimed against each other. Evidence on the application for summary judgment: [5] Mr. Hogeterp submitted that there was no evidence supporting the claim that he owned the dog that ran onto the highway, and therefore the claim against him should be dismissed summarily. The evidence presented by Mr. Hogeterp on the summary judgment application consisted of his affidavit and two affidavits of Michelle Kelly, one of his lawyers. [6] In his affidavit, Mr. Hogeterp swore that on the date of the accident he owned one dog, Tasha. He attached photograph in which the dog appears to be reddish brown in colour. He swears that at the time of the accident Tasha was tied to tree in his yard. He says that his brother lives nearby, and he owned black Labrador at the time of the accident and attached photograph of his brother’s dog. The photo is one taken by the plaintiffs’ investigator Robert Zaun. [7] Ms. Kelly’s first affidavit in support of the application has appended as exhibits: a. portions of Mr. Hogeterp’s discovery evidence and his answers to interrogatories, in which he swears that his dog, Redbone Coonhound, was tied to tree at the time of the accident. In the answers to the interrogatories Mr. Hogeterp indicated that his brother’s black Lab was born in the spring of 1996; b. part of the discovery evidence of Andrew Larkin in which he says that the dog he saw before the accident was medium sized black dog. He also states that the reddish brown dog shown in the photo, and identified by Mr. Hogeterp as being Tasha, was not the dog that he swerved to avoid and that the black Lab said to be Mr. Hogeterp’s brother’s dog could have been the dog on the road; c. part of the discovery evidence of Dennis Wilson, the first person to arrive at the scene of the accident. He said that he saw glimpse of dog running nearby and that the dog was medium sized dark coloured dog. Later he said it was “dark brownish”; d. statement given to Robert Zaun on April 7, 1997 by Mr. Wilson. Mr. Zaun is an investigator retained by the plaintiffs. In that statement, Mr. Wilson indicated that as he approached the scene of the accident: “I saw dark brown dog ... The dog that saw at the scene is the same dog have many many times have seen at the Dutch dairy farm (Hogeterp Farm). know this dog because on at least four (4) occasions nearly struck this dog, at this general location while driving my car on Highway #359.” At the end of the statement just above Mr. Wilson’s signature, it says: have had the opportunity to read this statement and have read it. There are no changes wish to make on my statement. This statement is true and correct to the best of my ability. However, in his discovery evidence, Mr. Wilson said that he signed the statement given to Mr. Zaun without reading all of it and that he actually told him he could not identify the dog. [8] Ms. Kelly’s second affidavit attached copy of portion of the discovery evidence of Mr. Zaun in which he described the circumstances in which he took the photograph of dog at Mr. Hogeterp’s farm. The photograph is of the dog said by Mr. Hogeterp to be the black Lab owned by his brother. Mr. Zaun however indicated that although in the photo, which was taken with zoom lens, the dog appears to be black, it appeared to his naked eye to be reddish brown. [9] In response to the application, the Huntleys filed the affidavit of articled clerk, Mike Dull. Counsel for Mr. Hogeterp objected to the form and substance of the affidavit and more will be said about that later in these reasons. Mr. Dull’s affidavit attached: a. portions of the transcript of discovery evidence of Mr. Hogeterp, Mr. Zaun, Mr. Wilson, and Andrew Larkin, as in Ms. Kelly’s affidavit; b. the April 7, 1997 statement of Mr. Wilson to Mr. Zaun; c. an Environment Canada weather report which indicated the amount of rainfall on the day of the accident; d. another photograph taken by Mr. Zaun of dog at the Hogeterp farm which shows that the part of the dog in bright sunlight is reddish brown in colour but the part in the shade appears to be black; e. report from “dog expert” about the characteristics of Redbone Hound dogs; f. the statement of Alfred Parks dated May 5, 1997. Mr. Parks came upon the scene shortly after the accident. He stated that while driving in that area at other times he has seen “lightish brown midsize dog” on both sides of the road close to the road and had never seen any other dog in that vicinity. [10] As well, Mr. Dull referred to conversations Mr. Wagner, plaintiffs’ counsel had with “an unnamed investigating RCMP constable” about Mr. Hogeterp’s dog and indicated that the plaintiffs intended to call the officer as witness at trial. [11] Mr. Dull also states: 15. The plaintiff has additional witnesses who drive past the Defendant’s farm often numerous (sic) times. They have witnessed at numerous times medium brown or red dog running unsupervised on the Defendant’s property. To avoid this dog, one witness has had to suddenly stop the vehicle to avoid an accident. The Plaintiff is reluctant to disclose the identity of these witnesses in light of the changes in Mr. Wilson’s statements following his visit from Lombard Insurance. [12] The Larkin defendants filed the affidavit of Andrea Baldwin, one of their lawyers, to which was attached handwritten statement of Dennis Wilson given to the RCMP on April 20, 1996, two days after the accident. That statement sets out what he observed upon arriving the scene and includes the following: ... Then noticed dog, on the same side of the road, about 60 feet from the car, running toward me. ... When first saw this accident scene, there was not another car around. The only thing moving was that dog. It was dark like brown, mid size maybe, I’m not sure. think it may have been the same dog almost hit twice before in that area. can’t say it was that dog but it’s there quite often. really can’t remember exactly what (sic) the dog at the accident was brown it wasn’t the focus of my attention. can say it was dog Probably brown that’s all can say. The decision under appeal: [13] Justice McDougall dismissed the motion for summary judgment. His decision is reported as: 2007 NSSC 54 (CanLII); [2007] N.S.J. No. 84 (Q.L.). After citing the relevant law and applicable test on summary judgment applications, the chambers judge summarized the evidence from the affidavits. With respect to the objection to the affidavit filed by Mr. Dull, he said: 31 Although there are numerous defects in the affidavit filed by the respondent in opposing this application including hearsay, double hearsay and triple hearsay along with opinion evidence that is clearly inadmissible. Also the affiant fails to indicate in certain instances the source of the information relied upon or chooses not to disclose his source and furthermore fails to express an honest belief in the information provided in certain instances. Having said this, have relied on certain portions of Mike S. Dull (Articled Clerk)'s affidavit to which is attached number of exhibits. have also considered the affidavit of Andrea F. Baldwin, Barrister and Solicitor and the exhibits attached thereto. [14] The chambers judge concluded by stating: 32 After considering all the materials filed for this application and the written and oral submissions of counsel, am satisfied that the applicant has met the burden placed upon him in step one of the two step test. 33 am also satisfied that the respondent with the support of counsel for the "Larkin" defendants has met the burden imposed by the second step in that there is at least genuine issue that should be left to be determined at trial. There are factual issues that will have to be resolved and issues, as well, of credibility that should not be decided on summary judgment application. As stated by Cromwell, J.A., in the case of Campbell v. Lienaux (1998), 1998 CanLII 1828 (NS CA), 167 N.S.R. (2d) 196; 502 A.P.R. 196; [1998] N.S.J. No. 142 (N.S.C.A.) at para. 14: 14 Summary judgment applications are not the appropriate vehicle for determining disputed facts, difficult questions about the appropriate inferences to be drawn from facts or complex legal questions .... 34 Not only am bound by this Nova Scotia Court of Appeal decision, heartily accept and endorse it. 35 believe the matter before me would be best left for final determination at trial. The application for summary judgment is therefore dismissed. Grounds of appeal: [15] The issues on appeal are: 1. Did the chambers judge err in admitting and relying on the affidavit of Mr. Dull? 2. Did the chambers judge err in dismissing the application for summary judgment? Leave to Appeal: [16] Counsel for the Larkins urged us to deny leave to appeal and although it is not the court’s usual practice, to state reasons for denying leave. She refers to cases from Saskatchewan and British Columbia where the courts of appeal require party appealing from an interlocutory order to establish, for example, that the issues are important or significant, have prima facie merit and that the appeal will not unduly delay the progress of the action. See: Schroeder v. Korf, [1996] S.J. No. 388 (C.A.) and Power Consolidated (China) Pulp Inc. v. British Columbia Resources Investment Corp., [1988] B.C.J. No. 1403 (C.A.). These are both decisions of one judge sitting in chambers. [17] In Nova Scotia the requirement for leave to appeal an interlocutory order is found in the Judicature Act R.S.N.S. 1989, c. 240 as amended, s. 40: 40 There is no appeal to the Court of Appeal from any interlocutory order whether made in court or chambers, save by leave as provided in the Rules or by leave of the Court of Appeal. [18] The Act defines Court of Appeal as: (aa) "Court of Appeal" means the Nova Scotia Court of Appeal and includes judge thereof whether sitting in court or in chambers; [19] However, traditionally leave applications are not heard by judge alone in this court as they are in some other provinces. Our Rules provide that leave applications are heard by panel of three judges of the court, not single judge unless leave is specifically authorized to be done by judge. Rule 62.11 states: 62.11. In addition to any other powers conferred by Rule 62 or otherwise, Judge may at any time and on such terms as he deems just, on the application of the Registrar or of any party to an appeal, order that ... (c) leave or permission to appeal be granted or refused where by an enactment application for leave or permission to appeal must be made to Judge before notice of appeal can be given; [20] In Future Inns Canada Inc. v. Nova Scotia (Labour Relations Board) (1996), 1996 CanLII 5240 (NS CA), 154 N.S.R. (2d) 358 Justice Hallett discussed the limited jurisdiction of single judge of the court. As result of the custom to require panel to hear leave applications, normally the leave application is heard at the same time as the appeal, and the court rarely explains why leave is granted or not. Hearing the application and the appeal together is contemplated by Rule 62.23(3). One exception to this is the process followed in appeals from the Worker’s Compensation Tribunal where separate hearing is held by panel to determine the leave application. (See: Doward v. Workers Compensation Board (NS) (1997), 1997 CanLII 14985 (NS CA), 160 N.S.R. (2d) 22 (NSCA) [21] In the limited number of cases where the court or judge has given reasons for granting leave to appeal, the threshold is usually whether the appellant has raised an arguable issue. See, for example: Michelin North America (Canada) Inc. v. Richard Ross, 2002 NSCA 87 (CanLII); 2002 NSCA 102 (CanLII), 207 N.S.R. (2d) 292. [22] Despite the able argument of counsel for the Larkins, am not persuaded that the court should follow the example of other jurisdictions and add to the requirements or increase its usual standard for granting leave to appeal an interlocutory order. In this case, am satisfied that the appellant has raised an arguable issue and would grant leave to appeal. Standard of Review: [23] Since the application for summary judgment was dismissed, the order did not have terminating effect. Thus the standard of review is the usual standard applied to appeals of interlocutory orders. We will not intervene unless wrong principles of law were applied or patent injustice would result. See: Maritime Travel Inc. v. Go Travel Direct.Com Inc., 2007 NSCA 11 (CanLII); United Gulf Developments Ltd. v. Iskandar, 2004 NSCA 35 (CanLII); Eikelenboom v. Holstein Assn. of Canada, 2004 NSCA 103 (CanLII), Milbury v. Nova Scotia (Attorney General), 2007 NSCA 52 (CanLII). 1. Admissibility of the Dull affidavit: [24] As noted above, the chambers judge recognized the problems with the affidavit and indicated that it was clearly inadmissible. However, he chose to rely on parts of it and accept into evidence the exhibits attached to the affidavit. The appellant submits that the chambers judge should not have relied on anything in the affidavit or accepted the exhibits attached to it as evidence because: (a) the Affidavit does not identify the source of the various pieces of information contained in each paragraph; (b) the Affidavit does not contain Mr. Dull’s statement that he swears to his belief in the information referred to in each paragraph; (c) the Affidavit does not contain the grounds for Mr. Dull’s belief in the information provided in each paragraph; (d) the Affidavit contains otherwise inadmissible evidence which was opinion evidence, hearsay, double and triple hearsay or evidence from unnamed sources. [25] agree that the affidavit is severely deficient and does not comply with the law in Nova Scotia respecting the form and contents of affidavits. See, for example: Waverley (Village) v. Nova Scotia Minister of Municipal Affairs), (1993) 1993 CanLII 3403 (NS SC), 123 N.S.R. (2d) 46 (S.C.); Fero Waste and Recycling Inc. v. MacNeill, 2002 NSCA 134 (CanLII); and Wall v. Horn Abbott Ltd., 1999 CanLII 7240 (NS CA), [1999] N.S.J. No. 124 (Q.L.) (NSCA). [26] However, in my view it is immaterial that the affidavit is deficient because all the evidence referred to by the chambers judge in the decision and required for determination of the issues was also contained in the other affidavits. The chambers judge noted in his review of the evidence that Mr. Wilson has provided different descriptions of the dog and at discovery had not adopted the statement purportedly given to Mr. Zaun. The statement of Dennis Wilson given to Mr. Zaun, to which the appellant takes the most objection, is also attached to the affidavit of Ms. Kelly filed on behalf of the appellant. The other statement of Mr. Wilson, given to the RCMP, is attached to the affidavit of Ms. Baldwin. There is no indication that the judge relied on the hearsay and “unnamed” sources referred to in Mr. Dull’s affidavit. It appears that he accepted the exhibits, the statements, the discovery evidence and perhaps the reports attached to it as indicative of the evidence the plaintiff will present at trial, without relying on the contents of the body of the affidavit. Although it would have been preferable for the chambers judge to signify which parts of the affidavit he relied on and which he found inadmissible, the failure to do so does not amount to the application of wrong principle of law or result in patent injustice. [27] The appellant says that the court cannot rely on the copy of the statement of Mr. Wilson given to Mr. Zaun that is attached to the Kelly affidavit because Mr. Wilson subsequently denied that he made that specific statement and the plaintiffs have not tendered an affidavit of Mr. Zaun to counter that evidence. Therefore, it is submitted, there is no dispute of fact or issue of credibility raised by Mr. Wilson’s statement to Mr. Zaun and, as result, no evidence identifying Mr. Hogeterp’s dog. disagree. The statement was tendered by the appellant to the chambers judge to add context to Mr. Wilson’s discovery evidence denying that he read the full statement. Once the statement is presented to the judge the other parties are able to refer to it to assist with their argument. The statement, on its face, purports to have been read and signed by Mr. Wilson. He did not deny that he gave statement to Mr. Zaun or that he signed the statement. [28] It should be noted that at this stage of the proceedings it was not necessary that the plaintiffs prove that Mr. Hogeterp’s dog contributed to the accident. The plaintiffs did not have to prove the truth of the statements and evidence attached to Mr. Dull’s affidavit. As will be seen in the discussion of the second issue, all that was required of the plaintiffs was to show that there is an issue of fact for trial, that is, they have some evidence to present at trial to support their contention that it was Mr. Hogeterp’s dog. They did not have to establish that their evidence is more credible or reliable than the defendant’s. They only had to show that the facts are contested, there is some evidence to support their version of events, and if their evidence is accepted by the trier of fact, their action has some merit. Even without Mr. Dull’s affidavit the nature and extent of the factual dispute was adequately presented through the other affidavits so that the chambers judge could determine the application for summary judgment. There was sufficient evidence properly before the court, to demonstrate that Mr. Wilson may have provided conflicting statements regarding the dog. His first and second version of the facts seem to support the plaintiffs’ claim that it was Mr. Hogeterp’s dog. Later, on discovery he denied the validity of the earlier statements. The chambers judge recognized the significance of the conflicting statements when he stated: 30 considerable amount of time has elapsed since the day of the accident involving Joellen Huntley and Andrew Larkin. The elapse of time has no doubt affected the witnesses recollection of events. Their recollection will have to be tested and the apparent changes explored fully at trial. Indeed their credibility might have to be challenged. Their individual testimony based on their powers of recollection and their credibility would be best left to the triers (or trier) of fact to consider and weigh after all relevant and admissible evidence is presented. 2. Summary judgment: [29] Mr. Hogeterp submits that the chambers judge erred in the application of the test for summary judgment. The application was brought pursuant to Rule 13.01(a): 13.01. After the close of pleadings, any party may apply to the court for judgment on the ground that: (a) there is no arguable issue to be tried with respect to the claim or any part thereof; [30] The applicable test is well established and has been most recently reiterated by this court in Milbury v. Nova Scotia (Attorney General), 2007 NSCA 52 (CanLII): Test for Summary Judgment: [17] In Orlandello v. AGNS, 2005 NSCA 98 (CanLII), Justice Fichaud explained the two stage test on summary judgment application: [12] Rule 13.01 permits defendant to apply for summary judgment on the ground that the claim raises no arguable issue. Rule 17.04(2)(a) allows third party to invoke Rule 13.01 to challenge plaintiffs claim. In Eikelenboom, after reviewing the authorities, this court stated the test: [25] Applying these authorities to the circumstances of this case, it is apparent that in order to show that summary judgment was available to it, [the defendant] had to demonstrate that there was no arguable issue of material fact requiring trial, whereupon [the plaintiffs] were then required to establish their claim as being one with real chance of success. See also: United Gulf Developments Ltd. v. Iskandar, 2004 NSCA 35 (CanLII) at 9; Hercules Managements Ltd. v. Ernst Young, 1997 CanLII 345 (SCC), [1997] S.C.R. 165 at 15; Guarantee Co. of North America v. Gordon Capital Corp., 1999 CanLII 664 (SCC), [1999] S.C.R. 423 at 27. [18] As stated in Selig v. Cooks Oil Company Ltd., 2005 NSCA 36 (CanLII), there are two distinct parts of the test and they should be dealt with sequentially: ... First the applicant, must show that there is no genuine issue of fact to be determined at trial. If the applicant passes that hurdle, then the respondent must establish, on the facts that are not in dispute, that his claim has real chance of success. [19] If the applicant does not establish that there is no genuine issue of fact, it is not necessary to go to the second step. There is no onus on the responding party if the applicant does not succeed on the first prong of the test. If there are genuine issues of fact, the application should be dismissed. [emphasis added] [31] In this case it appears that the chambers judge found that Mr. Hogeterp met the first part of the test and then that the plaintiffs met the onus on them in the second part of the test. However, the judge seemed to blur the two parts. First he said (¶ 32) that he was “... satisfied that the applicant met the burden placed on him in step one of the two step test.” However, when he addresses the second part, (¶ 33) he said “... there is at least genuine issue that should be left to be determined at trial.” He goes on to refer to “factual issues” and “credibility”. Those are all matters at the heart of the first part of the test. The essence of the second part of the test for summary judgment is “real chance of success” on facts that are not in dispute. The judge did not refer at all to the real chance of success test. If the first hurdle is passed by the applicant, the facts are not in dispute on the second prong because the applicant has already satisfied the court that no facts are in issue, or in other words, there is no arguable issue of fact. Genuine issue of fact is the focus of the first part of the test but the chambers judge seemed to view it as the second question. [32] With respect, although agree that the application should have been dismissed, disagree with the conclusion that the appellant established that there is no genuine issue of fact. It was unnecessary to consider the second step. The onus did not shift to the plaintiffs to show that their claim had real chance of success. When questioned about this hypothesis during argument, appellant’s counsel indicated that since the respondents did not file notice of contention, this court could not examine whether Mr. Hogeterp had met the burden of showing that there was no genuine issue of fact. [33] This court has wide powers conferred by the Judicature Act and the Rules. Rule 62.23 states in part: (1) Without restricting the generality of the jurisdiction, powers and authority conferred on the court by the Judicature Act or any other enactment the court may: (a) amend, set aside or discharge any judgment appealed from except one made in the exercise of such discretion as belongs to judge; (b) draw inferences of fact and give any judgment, allow any amendment, or make any order which might have been made by the court appealed from or which the appeal may require; (c) make such order as to the costs of the trial or appeal as it deems fit; (d) direct new trial by jury or otherwise, and for that purpose order that the judgment appealed from be set aside; (e) make any order or give any judgment which the appeal may require. (2) The powers of the Court may be exercised in respect of all or any part of the judgment or proceedings appealed from, notwithstanding that the notice of appeal states that part only of the judgment is complained of, and may be exercised in favour of all or any of the parties or other persons interested in the appeal, although they have not complained of the judgment appealed from.[emphasis added] [34] The jurisdiction is broad enough to review the whole of the decision under appeal, and if warranted, dismiss the appeal for reasons different from those provided by the chambers judge. If the judge erred in the application of the test, we may apply the test afresh. We may then come to different conclusion or conclude that summary judgment should not be granted. [35] am of the view that Mr. Hogeterp’s application should have been dismissed because he did not establish that there was no genuine issue of fact for trial. If the chambers judge found there was no genuine issue, it was the result of reviewable legal error. [36] The genuine issue of fact in this case is whether it was Mr. Hogeterp’s dog on the road just before the accident. Mr. Hogeterp swears that it was not. It could not have been his dog Tasha because she was tied to tree in his yard, which he confirmed by looking out his window when he heard the crash. Also he will have evidence from Andrew Larkin that the dog he saw was black. If that were the only evidence, there may not be genuine issue of fact. [37] However, there was sufficient information before the chambers judge to indicate that there will be conflicting evidence at trial. The plaintiffs will first present all their evidence on the identity of the dog which may include: a. the evidence of Mr. Wilson. Whatever his version of events may be at the time of trial, he will be confronted with the two statements he gave, one to the RCMP, and one to Mr. Zaun. In the former, Mr. Wilson said the dog was probably brown and could have been the same dog he almost hit twice before in that area. In the latter he is purported to have said it was Mr. Hogeterp’s dog; b. the evidence of Mr. Zaun who took the statement from Mr. Wilson and the photographs of the unrestrained dog of varying colour on the Hogeterp farm; c. an expert report about the characteristics of the Redbone Coonhound; d. evidence that it was raining on the day of the accident, from which there may be inferences drawn about the lighting and the effect of rain and darkness on the apparent colour of the dog; e. circumstantial evidence from people such as Mr. Parker and Mr. Wilson that they have seen brown dog running loose near the road at the site of the accident on other occasions and that Mr. Hogeterp owns land on both sides of the highway at that site. [38] In addition, the plaintiffs will have the opportunity to test the credibility of Mr. Hogeterp and the reliability of Andrew Larkin’s memory. As well, given that Andrew Larkin has said that he only caught glimpse of the dog, the quality of his observation will be questioned. The trier of fact will be asked to draw inferences from all the evidence. [39] summary judgment application is not the time for evaluating credibility, weighing evidence and drawing inferences. In Dawson v. Rexcraft Storage, 1998 CanLII 4831 (ON CA), [1998] O.J. No. 3240 (C.A.) Borins, J.A. explained: 19 In Aguonie, this court discussed the role of motions judge in determining whether genuine issue exists with respect to material fact. It is helpful to repeat what the court said at pp. 235‑36: In ruling on motion for summary judgment, the court will never assess credibility, weigh the evidence, or find the facts. Instead, the court's role is narrowly limited to assessing the threshold issue of whether genuine issue exists as to material facts requiring trial. Evaluating credibility, weighing evidence, and drawing factual inferences are all functions reserved for the trier of fact. 28 ... However, at the end of the day, it is clear that the courts accord significant deference to the trial process as the final arbiter of the dispute which has brought the parties to litigation. If there is genuine issue with respect to material facts then, no matter how weak, or how strong, may appear the claim, or the defence, which has been attacked by the moving party, the case must be sent to trial. It is not for the motions judge to resolve the issue. [emphasis added] See also: Campbell v. Lienaux (1998),1998 CanLII 1828 (NS CA), 167 N.S.R. (2d) 196 at 15-16 and Oceanus Marine Inc. v. Saunders (1996),1996 CanLII 5309 (NS CA), 153 N.S.R. (2d) 267 at 19 -20. [40] In this case the defendant Mr. Hogeterp did not meet the first part of the summary judgment test. He did not establish that there was no genuine issue of fact for trial, and the application ought therefore to have been dismissed on that basis. The order of the chambers judge should be confirmed, although for different reasons. [41] I would grant leave to appeal but dismiss the appeal. [42] Counsel for the respondents argued that if the appeal were dismissed, they should receive double the normal tariff for interlocutory appeals because they made an offer to settle the appeal. The offer, dated May 9, 2007, was that if Mr. Hogeterp agreed to dismissal of the appeal, the respondents would waive the costs ordered by the chambers judge and any costs associated with the appeal. [43] Rule 41A.09(1) provides costs consequences for the failure to accept an offer to settle that is more favourable than that ordered after trial. The respondents have not pointed to any case determining that Rule 41A.09(1) is applicable to offers to settle appeals. Assuming without deciding that it is applicable, would decline to order double party and party costs from the date of the offer in this case. As noted above, the appellant raised arguable issues and it is apparent that the chambers judge did not apply the test for summary judgment correctly. Furthermore, the offer to settle, involving waiver of costs of the application and those that might be ordered after appeal, was for an insignificant amount in comparison to the amount of money ultimately at issue here. [44] would order that the appellant pay costs to the Larkin respondents in the amount of $1,500 plus disbursements and also to the Huntley respondents in the amount of $1,500 plus disbursements. Roscoe, J.A. Concurred in: Saunders, J.A. Oland, J.A.

A single vehicle accident occurred when the driver swerved to avoid hitting a dog that ran onto the highway. An action was brought against both the driver and the farmer who owned the land on both sides of the highway on the basis that the farmer owned the dog in question and was negligent in failing to keep it off the highway. The farmer contended that although he owned a dog, it was tied to a tree at the time and his was not the dog that had run onto the highway. When his application for summary judgment was dismissed, the farmer appealed. Appeal dismissed. At this stage of the proceedings, it was not necessary for the plaintiffs to prove that the defendant's dog contributed to the accident or the truth of the statements and evidence attached to the affidavit. It was only necessary to show that the facts were contested, there was some evidence to support their version of events and, if their evidence was accepted by the trier of fact, their action had some merit. Although the judge appeared to blur the two parts of the test on a summary judgment application, the Court found that the farmer failed to meet the first part of the test; namely, that there was no genuine issue of fact for trial as there was conflicting evidence as to the identity of the dog involved.

b_2007nsca75.txt

QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2014 SKQB 81 Date: 2014 03 20 Docket: Q.B.G. No. 1510 of 2013 Judicial Centre: Saskatoon BETWEEN: VALERIE ROLANDA LOZINSKI, as personal representative of the Estate of the Late Kenneth Roebuck and THIESSEN BROS. Counsel: Adam R. Touet for the applicant Devin J. Dubois and Brian E. Cox for the respondent JUDGMENT SCHERMAN J. March 20, 2014 Introduction [1] The applicant asks that the registration of mortgage against land be discharged on the basis that the limitation period to enforce the mortgage has expired. The respondent says the limitation period has not expired because The Saskatchewan Farm Security Act, S.S. 1988-89, c. S-17.1 (the “Farm Security Act”) provides for suspension of limitation time running while certain proceedings are underway pursuant to that Farm Security Act. [2] Whether the limitation period has expired or not depends on the proper interpretation to be given to the Farm Security Act and The Limitation of Actions Act, R.S.S. 1978, c. L-15 (the Limitations Act), which was the applicable limitation period legislation at the relevant times. This issue and the interpretations in question have not previously been considered by this court. [3] In 1981 Kenneth Roebuck mortgaged the subject land to the respondent to secure the repayment of then $36,000 debt. The respondent`s mortgage was registered at the Land Titles Office. This registration continues to date as Interest Registration No. 106597705. [4] On February 28, 1996, Kenneth Roebuck signed an acknowledgement and repayment agreement which acknowledged that $25,000 remained owing and secured by the mortgage. It set out repayment schedule for the payment of this balance. It is agreed that this acknowledgement created new limitation period running from that date. [5] On February 28, 2006, the respondent served notice of intention to foreclose upon Kenneth Roebuck pursuant to s. 12 of the Farm Security Act. This service had the effect of suspending the running of the limitation period clock. The matter was not resolved by mediation under the provisions of the Farm Security Act, but no steps were taken by the respondent to obtain leave or to actually commence foreclosure proceedings pursuant to its February 28, 2006 notice of intention. The reasons why the matter did not advance beyond mediation are not in evidence. [6] Kenneth Roebuck died on September 14, 2012. His executrix, the applicant and the ultimate beneficiary of the subject land, brought the application now before the court on October 28, 2013. On February 28, 2014, counsel for the respondent filed new notice of intention pursuant to the Farm Security Act. The Parties` Positions [7] The respondent argues that on proper interpretation of the Farm Security Act, the running of the limitation period was suspended on the filing of the February 28, 2006 notice of intention and remains suspended. This it says is because the clear language of s. 22(1) directs that the suspension commences on the day on which notice of intention is served and ends on the day that “an order is made pursuant to subsection 11(1) with respect to that application”. [8] The applicant`s position is that the review and mediation process mandated under the Farm Security Act is to be completed within 150 days of the service of the notice of intention and s. 12(16) provides that if the mortgagee does not make such an application within three years “the notice of intention is deemed to have expired”. Thus the applicant says at the end of such three years the limitation period began to run again and promptly thereafter expired. The Legislation [9] The following sections of the Farm Security Act that need to be interpreted and applied on this application are: 11(1) Where mortgagee makes an application with respect to mortgage on farm land, the court may, on any terms and conditions that it considers just and equitable: (a) order that clause 9(1)(d) or section 10 does not apply; or (b) make an order for the purposes of clause 9(1)(f). (2) Where an order is made pursuant to subsection (1), the mortgagee may commence or continue an action with respect to that mortgage. (3) Any action that is commenced without an order pursuant to this section is nullity, and any order made with respect to an action or proposed action without an order pursuant to this section is void. 12(16) Where an application to the court pursuant to section 11 has not been made within three years after the day on which notice of intention pursuant to subsection (1) was served, whether the notice was served before or after the coming into force of this subsection, the notice of intention is deemed to have expired for the purposes of this section, and no further action may be taken by the mortgagee for an order pursuant to subsection (1) until further notice pursuant to subsection (1) is served. 22(1) The period: (a) commencing on the day on which notice of intent is served pursuant to subsection 12(1); and (b) ending on the day that an order is made pursuant to subsection 11(1) with respect to that application ordering that clause 9(1)(d) or section 10 does not apply or making an order for the purposes of clause 9(1)(f); is not to be included in calculating the time, pursuant to The Limitations Act or pursuant to any other law or rule of court, for commencing or continuing any action with respect to the mortgage or for commencing or continuing any action or making any application for the enforcement or recovery of any sum of money secured by mortgage with respect to farm land. [10] The purpose of the Farm Security Act is stated in s. to be “to afford protection to farmers against loss of their farm land”. Part II of the Farm Security Act, within which the above-quoted sections appear, establishes mechanism and process to achieve this purpose. [11] The mechanism for and process for the provision of this protection can be summarized as follows: a) Section 9(1)(d) provides that subject to ss. 11 to 21 no person shall commence an action with respect to farm land. b) Section 11 provides that where mortgagee makes an application the court may, on any terms that it considers just and equitable order that s. 9(1)(d) does not apply. c) The procedure mortgagee must follow prior to making s. 11 application is detailed in s. 12 of the Farm Security Act, which summarize as follows: i) mortgagee can make an application for s. 11 order only upon the expiry of 150 days after serving notice of intention, to make such an application, on the board and the farmer s. 12(1); ii) Within 60 days following the service of the notice of intention, the board is to complete review of the financial affairs of the farmer and provide its report thereon to the farmer, the mortgagee and mediator it appoints s. 12(2) and (3); iii) Within 105 days of the service of the notice of intention (or such longer period as the parties may agree) mediation is to occur s. 12(6); iv) On expiry of the mediation period and prior to the expiry of the 150-day period fixed in s. 12(1), the board is to complete written report that addresses factors set out in s. 12(12) of the Farm Security Act including whether the farmer has reasonable possibility of meeting his obligations under the mortgage and whether he is making sincere and reasonable effort to meet his obligations s. 12(13); v) The board is required to submit its report to the court on notice from the mortgagee that an application has been made to the court for an order pursuant to s. 11 s. 12(15); vi) Where an application is not made to the court within three years after the date on which the notice of intention was served, the notice of intention is deemed to have expired but the mortgagee may serve further notice s. 12(16); vii) If an application is made to the court, s. 13 outlines presumptions that apply and circumstances and considerations the court is to consider when deciding whether or not to grant leave to commence foreclosure proceedings in the circumstances. [12] The parties agree that, but for suspension of the running of the limitation period pursuant to s. 22 of the Farm Security Act, the limitation period for the enforcement of this mortgage would have expired. [13] In Wylie Farms Ltd v. Shiffman, 2011 SKQB 70 (CanLII), 369 Sask.R. 207, Justice Currie of this court held that the expiration of the limitation period not only precludes commencement of foreclosure action but also extinguishes the mortgagee’s rights under the mortgage in respect of the land. Accordingly he held that, in such circumstances, the registered owner of the land is entitled to obtain an order of the court discharging the registration of the mortgage from title. Based upon this authority it follows that the applicant is entitled to the relief she seeks if the limitation period has expired. [14] The respondent argues that pursuant to s. 22, the time period commencing on the day on which notice of intention is served and ending on the day that an order is made with respect to that application (emphasis added) is not to be included in the calculation of time. It says that the clear language of the legislation directs that once service of notice of intention is perfected, only an order pursuant to s. 11(1) will restart the limitation period clock. [15] It argues that while s.12(16) deems the notice of intention to have expired for the purposes of s. 12 after three years, it also contemplates further notice of intention being served. The respondent says the legislation has created what its counsel describes as an evergreen mediation process and that in exchange for having the burden of the protection process imposed upon mortgagees, the legislature has provided an offsetting protection for the mortgagee which is that the suspension of time running continues until the mortgagee actually obtains an order. [16] The respondent argues that when s. 12(16) states that the notice of intention is deemed to have expired for the purposes of this section (emphasis added), this expiration, by virtue of the specific words of statute, limited its operation to s. 12 and cannot be extrapolated into s. 22. It says that the literal language of s. 22 makes it clear that the intention of the legislature was to stop the limitation clock until there was court order pursuant to s. 11(2). [17] Whether or not the limitation period has expired depends upon the proper interpretation of the provisions of both the Farm Security Act and the Limitations Act. The Interpretation Act, 1995, S.S. 1995, c. I-11.2, states as follows: 9(1) Every enactment shall be interpreted as always speaking. (2) Where provision in an enactment is expressed in the present tense, the provision applies to circumstances as they arise. 10 Every enactment shall be interpreted as being remedial and shall be given the fair, large and liberal construction and interpretation that best ensure the attainment of its objects. [18] Since its 1984 decision in Stubart Investments Ltd. v. R., 1984 CanLII 20 (SCC), [1984] S.C.R. 536, 10 D.L.R. (4th) 1, the Supreme Court of Canada has consistently applied the so-called “modern principle of statutory interpretation” as enunciated in Elmer A. Driedger, Construction of Statutes, 2d ed. (Toronto: Butterworths, 1983), where the author stated, at page 87, the principle as follows: Today there is only one principle or approach, namely the words of an Act are to be read in their entire context in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act and the intention of Parliament. [19] In Acton v. Britannia (Rural Municipality, No. 502), 2012 SKCA 127 (CanLII), 405 Sask.R. 180, Klebuc C.J.S. writing for the court said the following: 17 Under Driedger’s modern principled approach, court’s primary duty is to harmonize the grammatical meaning of the text with the other indicators of legislative intent gleaned from reading the text in its entire context. (See Ruth Sullivan, Sullivan on the Construction of Statutes, 5th ed. (Markham, Ontario: LexisNexis Canada, 2008) at 24, 42, 45 and Ratzlaff Estate, Re, 2002 SKCA 53 (CanLII), 217 Sask. R. 284 at para. 23.) However, reliance on these other indicators is subject to the following constraint: the interpretation ultimately adopted must be one that the words of the text can reasonably bear. This is the plausible meaning rule. (See Sullivan, supra at 163.) An interpretation of the text sets up presumption that this is indeed the interpretation intended by the legislature. The presumption in favour of ordinary meaning is rebutted by evidence derived from other statutory interpretation tools that another meaning was intended or is more appropriate in the circumstances. 18 Ruth Sullivan suggests that the following questions must be considered when interpreting statutory provision: What is the meaning of the legislative text? What did the Legislature intend? That is, when the text was enacted, what law did the Legislature intend to adopt? What purposes did it hope to achieve? What specific intentions (if any) did it have regarding facts such as these? What are the consequences of adopting proposed interpretation? Are they consistent with the norms that the legislature is presumed to respect? (See: Sullivan at p. 3) [20] The literal or grammatical meaning of the words used in s. 22 does indeed seem to direct that the stopping of the limitation period clock continues until an order is made pursuant to s. 11(1) of the Farm Security Act. However, the interpretation exercise does not stop with the literal or grammatical meaning of the words used. To restate what Klebuc C.J.S. said in Acton, the court’s primary duty is to harmonize the grammatical meaning of the text with the other indicators of legislative intent gleaned from reading the text in its entire context. If such other indicators lead to different conclusion as to the legislature’s intent, the presumption in favour of the ordinary meaning is rebutted by such other indicators of legislative intent, provided only that the interpretation ultimately adopted is one which the words of the text can reasonably bear. [21] The intention of the legislature in suspending the running of the limitation period clock by provisions of the Farm Security Act cannot be considered in isolation from the legislature’s concurrently expressed intent with respect to limitation periods generally. For good and sound reasons, limitation periods exist and are to be enforced. Inherent in the Farm Security Act creating an exception, is the recognition of the general rule. Thus it follows that the exception should be viewed as being there only to achieve the legislative purpose of the legislation. [22] Sections 16(12), 18 and 19 make it clear that the objective of the Farm Security Act is that farmers not be subjected to foreclosure proceedings if they have reasonable possibility of meeting their obligations under their mortgages and if they are making sincere and reasonable effort to meet those obligations. [23] The Farm Security Act imposes on mortgagees of farm land the obligation to invest the time necessary to prepare and serve the notice of intention, to participate in the mediation process and to wait the mandatory 150 days before they can make application to the court for an order pursuant to s. 11(1). Further, there is the potential that, when an application is made the court will refuse leave to take enforcement proceedings. [24] It would be manifest injustice to mortgagees if their limitation periods to commence an action expired within the 150-day period before they could make an application or because the court, on the making of an application, refused an order permitting the commencement of an action. The reason the legislature provided suspension of limitation time in s. 22 is obvious. The legislative intent behind s. 22 was to ensure that mortgagees would have available to them the full limitation period they would otherwise have had but for the infringement on that time by the requirements of the Farm Security Act. [25] The overarching objective of the Farm Security Act is to prevent mortgagees from foreclosing on farmers who have reasonable possibility of and who are making sincere and reasonable effort to meet their obligations. The mechanism created to accomplish this objective included stopping of the limitation period clock, to the extent necessary to prevent the above-noted injustice to mortgagors. But, there is nothing in the legislation, save the words used in s. 22, that reveals an intention to keep the limitation period clock stopped beyond the three-year period when notice of intention expires. [26] There is no apparent policy or juristic reason for the legislature to stop the limitation period clock for farm mortgages either permanently or for period of time beyond that reasonably required by reason of the burdens or impediments imposed on mortgagees by the legislation. Interpreting s. 22 of the Farm Security Act as the respondent argues would lead to an absurd result. The debt is now 18 years from its last acknowledgement and would have ceased to be enforceable on March 1, 2006, but for the service of notice of intention under the Farm Security Act the day previous. Now further eight years later the respondent argues that the limitation period has not started to run again notwithstanding the expiration of the notice of intention on March 1, 2009, and the respondent’s failure to initiate any action. In effect the respondent`s position is that by serving its initial notice of intention, it obtained perpetual right to commence enforcement proceedings without regard to any limitation periods. [27] This absurd result would not flow just to the respondent in its unique circumstances. Acceptance of the respondent`s interpretation of the Farm Security Act would lead to situation where any and all mortgagees of farm lands could entirely avoid any limitation period applying to their mortgage by the simple devise of serving notice of intention under the Farm Security Act. [28] The precise mischief the Limitations Act is directed at is delay and inaction on the part of debtors and other contractual obligees. The Limitations Act requires debtors and contractual obligees to commence enforcement proceedings within the applicable limitation period, failing which the right to enforce is lost. The legislature could not have intended what the respondent argues. The purpose of the Farm Security Act is to provide farmers protection from the loss of their farm lands where short-term economic conditions have created temporary financial problems, not to provide mortgagees of farm lands with mechanism to make limitation periods eternally inapplicable to their mortgages. [29] Subsection 12(1) gives mortgagee the right to apply to the court for s. 11 order only after the expiry of 150 days from the date of service of the notice of intention. Subsection 12(16) then states that when an application has not been made within three years after the date of service, the notice of intention is deemed to have expired for the purposes of this section. [30] The purposes of this s. 12 are outlined in s. 12. The purposes are to provide the 150-day period within which the board can complete review of the financial affairs of the farmer, appoint mediator, provide its financial review to the farmer, mortgagee and mediator, provide the opportunity for the mediator to attempt mediation and for the mediator to file his or her mediation report, and for the board to prepare its report so that it is available for filing with the court on notice from the mortgagee that an application has been made. [31] am satisfied that the intention of the legislature was that mortgagee, to whom the Farm Security Act applied, could suspend the limitation period clock running from and after servicing notice of intention to enforce its security, provided that within three years of such service the mortgagee made an application to the court for an order under s. 11 permitting it to commence an enforcement action. If the three years for making such an application expires without an application being made, then by operation of s. 12(16) the notice of intention is deemed to have expired and the limitation period begins running again. [32] The interpretation which am giving s. 22 of the Farm Security Act is one which the words of the text can reasonably bear. It does not limit the limitation period the respondent would otherwise have had available to commence his foreclosure action. Indeed, since the applicable limitation period would have expired on March 1, 2006, but for the filing of the respondent`s notice of intention, the respondent effectively extended his limitation period to March 1, 2009. [33] If the respondent brought its application for s. 11 order and been refused such order, the limitation period suspension would have further continued for another one-year period by virtue of s. 20 of the Farm Security Act. Then provided the respondent served new notice of intention within such one-year period, it would once again have the effect of stopping the limitations clock. But, mortgagees wishing to keep the limitation period stopped must act within the specified periods. If they let the three-year period expire without making an application, the notice of intention and the resulting stopping of the limitation period clock both expire. [34] It is my conclusion that the notice of extension having expired on February 28, 2009, the limitation clock began to run again. Given the limitation period has substantially expired before the service of the initial notice of intention, once the clock began to run again it expired within the day. Conclusion [35] Having concluded that the limitation period for the commencement of an action to enforce the respondent`s mortgage has expired, it follows, for the reasons outlined in para. 13 above that the registration of the mortgage must be ordered discharged as requested. (1) The Registrar be directed to discharge Interest Register No. 106597705 from title to the property legally described as follows: Surface Parcel #131038905 Reference Land Description: SW Sec 36, Twp 43, Rge 08, W3, Extension As described on Certificate of Title 77B11021; and (2) The applicant shall have the taxable costs of her application against the respondent.

Limitation of Actions – Mortgage – Saskatchewan Farmland SecurityHELD: When s. 12 of The Saskatchewan Farm Security Act was enacted it was the legislature’s intention that a mortgagee, to whom The Saskatchewan Farm Security Act applied, could suspend the limitation period clock from running and after serving a notice of intention to enforce its security, provided that within three years of such service the mortgagee made application to the court for an order under s. 11 permitting it to commence an enforcement action. If the three years for making such an application expires without an application being made, the limitation period begins to run again. The notice of extension in this case expired in 2009 and the limitation clock began to run again. The limitation period for the commencement of an action to enforce the respondent’s mortgage has expired and the registration of the mortgage is ordered discharged.

b_2014skqb81.txt

QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2014 SKQB 59 Date: 2014 02 28 Docket: DIV 1595 of 2010 Judicial Centre: Weyburn, Family Law Division BETWEEN: BRENDA MARIE KYLE and GEORGE ALLAN BENNETT KYLE Counsel: Mary Lou Senko for the petitioner Drew Filyk for the respondent FIAT SANDOMIRSKY J. February 28, 2014 [1] On November 18, 2010, the petitioner commenced this family law proceeding by issuing petition in which she sought divorce and equal division of the family property estate. The petitioner did not seek any form of corollary relief pursuant to the provisions of the Divorce Act, R.S.C. 1985, c. (2nd Supp.). Specifically, she did not claim for spousal support. Nor did the petitioner seek spousal support under the provisions of The Family Maintenance Act, 1997, S.S. 1997, c. F-6.2. [2] On August 13, 2013, the petitioner sought to amend her petition by including claim for spousal support in an amount to be determined in accordance with the Carol Rogerson and Rollie Thompson, Spousal Support Advisory Guidelines ([Ottawa]: Department of Justice, 2008) (“SSAG”). An application to amend the petition, amongst other relief sought, was consented to by the parties on October 17, 2013 and granted October 22, 2013. [3] On January 20, 2014, the petitioner filed the within application for interim spousal support, “retroactive to the date of the parties’ separation”. [4] In the decision Malinowski v. Malinowski, 2010 SKQB 27 (CanLII), 349 Sask. R. 210, McIntyre J. makes the following statement at para. 12 As rule retroactive child support preceding commencement of the proceedings ought not to be granted in an application for interim support. L.R. v. D.T. 1998 CanLII 13814 (SK QB), [1998] S.J. No. 733; (1999), 178 Sask R. 115 (Sask. Q.B.). Also see Dram v. Foster 2009 MBCA 125 (CanLII). [5] This rule is generally applicable to an interim application for spousal support as it is to an interim application for child support. [6] The petitioner applied for judgment for divorce which was granted August 14, 2013. She did not seek spousal support at that time. At para. 28 of the petitioner’s affidavit, sworn January 10, 2014, the petitioner avers: 28. request for support based on the Respondent’s income was made in October, 2013 and denied. Given the Respondent’s income, am claiming spousal support from the date of separation. [8] In the same decision, Malinowski, supra, McIntyre J. adopts and summarizes the Supreme Court of Canada’s decision in D.B.S., v. S.R.G; L.J.W. v. T.A.R.; Henry v. Henry; Hiemstra v. Hiemstra, 2006 SCC 37 (CanLII); [2006] S.C.R. 231 at para. 10, which reads: 10 The Supreme Court of Canada in D.B.S., v. S.R.G; L.J.W. v. T.A.R.; Henry v. Henry; Hiemstra v. Hiemstra 2006 SCC 37 (CanLII); [2006] S.C.R. 231 has observed that when it comes to the question of retroactive support award the court is to strive for holistic view of the matter and decide each case on the basis of the particular facts. Factors to be considered by the court include the reason for the recipient's delay in seeking child support, the conduct of the payor, the past and present circumstances of the child including the child's needs at the time the support should have been paid, and whether retroactive award might entail hardship. If retroactive child support is to be awarded it will as general rule be retroactive to the date of effective notice by the recipient, but to more than three years in the past. Effective notice does not require the recipient to take legal action. All that is required is that the topic be broached. Where payor has engaged in blameworthy conduct the presumptive start date is not that of effective notice but when the circumstances materially changed. [9] The petitioner’s evidence herein is that she first gave effective notice or broached the subject of spousal support with the respondent during the month of October, 2013. She took similar legal action in the same month leading to the order allowing an amended petition to include claim for spousal support. [10] There is ample authority for the proposition that retroactive spousal support should be left to final adjudication and not be granted upon an interim application: see Lapp v. Lapp, 2008 ABCA 15 (CanLII), 425 A.R. 232; K.B.A.S. v. G.E.S., 2006 SKQB 439 (CanLII), 286 Sask.R. 16. [11] For the foregoing reasons, and in accordance with the quoted case law, this Court will not grant retroactive spousal support prior to the respondent being put on effective notice that the petitioner was now seeking spousal support. [12] The evidence establishes that the respondent’s gross income in the year 2013, to his pay period ending December 14, 2013, was $95,275.73. This latter sum included $28,553.68 of overtime income. [13] The respondent is 61 years old. His regular hourly rate of pay is $28.50. The respondent argues that he cannot keep up the pace of working overtime hours as he did in previous years. In assessing support, whether child support or spousal support, court does not compel payor to work overtime. At the respondent’s age and given his state of health, this Court will not compel the respondent to work more than a 40 hour work week by attributing to him an income which is based upon significant overtime. [14] The respondent indicates that he intends to work standard 40 hour work week at the rate of $28.50 per hour. This represents an annual income of $59,280.00. The respondent also earns rental income from leasing farm land. The net rental income, after payment of property taxes, yields $8,000.00 to the respondent. The petitioner and respondent are now splitting oil lease revenue, each party receiving $5,500.00 per year. The respondent is in receipt of CPP benefits of $6,540.00 per annum. The sum of the respondent’s annual income is adjudged to be presently $79,320.00. [15] The total income earned by the petitioner is adjudged to be $56,103.00, consisting of wages of $50,603.00 and $5,500.00 derived from oil lease revenue. [16] Following the provisions of the Divorce Act for awards of spousal support, as interpreted by the Supreme Court of Canada in the decision Bracklow v. Bracklow, 1999 CanLII 715 (SCC), [1999] 1 S.C.R. 420, 169 D.L.R. (4th) 577, this Court considers the economic disparity between the respondent and petitioner’s incomes, that is $79,320.00 versus $56,103.00, is sufficiently disparate and upon which an interim award of non-compensatory spousal support is appropriate. Referencing the SSAG, as a guide only, the court orders the respondent to pay to the petitioner interim spousal support in the sum of $700.00 per month commencing effective November 1, 2013, and on the first day of each and every month thereafter until further order of the court. [17] The petitioner, having been the successful applicant, shall have her costs fixed at $1,200.00, payable by the respondent, forthwith. J. N. S. SANDOMIRSKY

Family Law – Spousal Support – RetroactiveThe petitioner commenced a family law proceeding requesting divorce and equal division of family property in 2010. She did not seek spousal support as part of her original application to the Court. In August of 2013, the petitioner sought to amend her petition to include a claim for spousal support based on the Spousal Support Advisory Guidelines. In January of 2014, the petitioner filed an application for interim spousal support retroactive to the date of separation. HELD: The petitioner was awarded spousal support, but the award was not retroactive to the date of separation. The petitioner was entitled to spousal support from the date that she put the respondent on notice of her application for spousal support. The respondent, at age 61, should not be forced to work overtime in order to meet his spousal support obligations. The Court found there was economic disparity between the income of the petitioner and the income of the respondent and awarded an interim award of non-compensatory spousal support in the amount of $400 per month, retroactive to November 1, 2013, until further order of the Court.

6_2014skqb59.txt

C.R.141404 IN THE SUPREME COURT OF NOVA SCOTIA HER MAJESTY THE QUEEN DANY KANE DECISION ON APPLICATION FOR STAY OF PROCEEDINGS HEARD: at Sackville, Nova Scotia before the Honourable Justice Felix A. Cacchione on September 23rd, 1998 DECISION: September 28th, 1998 (Orally) COUNSEL: Pierre Lapointe and Chris Morris, for the Crown Dani6le Roy and Isabelle LaMarche, for the Defence (Applicant) J. The accused, Dany Kane, is charged with murder in the first degree. He did not have the benefit of preliminary inquiry as result of the Crown preferring the indictment against him. There is no evidence before the court on the merits of the case as the trial has yet to begin. The accused brings this application for a stay of proceedings alleging that his rights under ss.11(d) and 11 (f) of Canadian Charter of Rights and Freedoms have been infringed due to the pre-trial publicity generated by this case. The applicants position, in short, is that the pre-trial publicity has prejudiced his right to be tried by an impartial jury of his peers. It is also argued that the security measures presently in place and focussed on by the media have instilled in the general populous climate of fear which makes the selection of an impartial jury impossible. It is argued by the applicant that prejudicial information, which has yet to be ruled admissible by this Court, is contained in many of the media reports aired to date. Reference is made to the following prejudicial comments contained in the news report; (a) the description of Mr. Kane as the accused killer not the alleged accused killer, (b) to Mr. Kane having links with the Hells Angels Motorcycle Gang; (c) to Quebec bikers being notorious for bombings; (d) to an incident during biker trial held in Montreal where car was driven up the courthouse steps; (e) to the RCMP belief that this case was contract killing involving the Hells Angels; (f) to the police taking extra precautions because the case is linked to bikers; (g) to the police saying the accused has ties to violent faction of the Hells Angels; (h) to the accused being transported by three van loads of heavily armed RCMP officers; (i) the escorting of the handcuffed accused into the courthouse. As well it is submitted that coverage about this trial being held in location other that the Law Courts Building together with the extensive security arrangements in place, such as cement barricades surrounding the building, external surveillance cameras, metal detectors, twenty-four hour per day perimeter patrols by civilian clothed RCMP officers and the transportation of the accused to the courthouse by what the media describes as heavily-armed guards travelling in bullet-proof vehicles have made it impossible for this accused to be tried by an impartial jury of his peers. The appellant's position is that the comments noted above coupled with very brief interview of two persons living near the make-shift courthouse who indicate that they are nervous because of the heightened security have made it impossible for the accused to receive fair trial. The applicant argues that these eight television news broadcasts aired at peak times on September 10th, 11 th, 15th, 16th and 17th together with five radio broadcasts aired on September 15th and 16th have created an atmosphere of fear and terror surrounding Mr. Kane's trial such that it will be impossible for him to get fair trial by an impartial jury. The applicant submits that this information is such that it would reasonably be expected to taint the accused in the eyes of the public and that potential jury has been irreparably prejudiced against him. It is the applicant's position that there is reasonable apprehension of bias such that Mr. Kane's rights have been or may be infringed. The Crown respondent acknowledges that the incident in Montreal where car was driven up the steps of the courthouse was not linked to the Hells Angels and that the reporting of this link is clearly wrong. The respondent argues essentially two points, these being: (a) that the applicant has not discharged its burden of proving on balance of probabilities that his Charter rights have been breached; and (b) that the application is premature because no attempt has been made to determine if an impartial jury can be selected. The respondent's position is that it is insufficient to simply say that there has been adverse publicity and therefore the applicant cannot receive fair trial because of that publicity. The respondent submits that the test is what effect has this publicity had on potential jurors and whether that effect is such that it precludes potential jurors from putting aside their preconceptions and judging the case on its merits. It is suggested that simply because two persons living near the courthouse have been made nervous by the visible security arrangements does not necessarily mean that all potential jurors will suffer that same effect to the point of not being impartial. It is clear that some of the pre-trial publicity has covered things which were factually wrong or things which have not, to-date, been established in evidence. It is also true that the media coverage has been sensational and inflammatory by focussing on the security arrangements presently in place. However, the pre-trial publicity generated in this case pales in comparison to the media coverage preceding the criminal trial in the Westray Disaster and in the trials of the Christian Brothers involved in the Mount Cashel abuse cases. In R. v. Kenny (1991), 1991 CanLII 2738 (NL SC), 68 C.C.C. (3d) 36 the accused was charged as result of incidents occurring at Mount Cashel. He applied for Stay of Proceedings on the basis of adverse pre-trial publicity. In his ruling on this application Barry, J. outlined the type of media coverage which preceded the commencement of Mr. Kenny's trial. Justice Barry noted that public inquiry, held before Mr. Kenny's trial, heard from twenty former residents of Mount Cashel who testified under relaxed rules of evidence about the abuse they suffered at Mount Cashel at the hands of various members of the Christian Brothers organization. The vast majority of the public inquiry was broadcast on cable television network covering 83% of the households in the area from which jury panel was to be selected. He noted as well that the story of the Mount Cashel abuse including video taped portions of the inquiry testimony of abuse victims was played and re-played both locally and nationally throughout the period from the commencement of the inquiry through to the date of Mr. Kenny's trial. In two year period leading up to Mr. Kenny's trial, in Newfoundland alone, there were 525 news stories involving 330,000 words relating to the abuse at Mount Cashel. Stay of Proceedings based on the unprecedented amount of prejudicial pre-trial publicity was denied in that case. The issues before me are: (a) has the appellant established on balance of probabilities that the circumstances of this case violate his right to be presumed innocent until proven guilty according to law in fair and public hearing by an independent and impartial tribunal under s.11(d) or his right to jury trial under s.11(f) of the Canadian Charter of Rights and Freedoms; and (b) if there has been violation of the accused's Charter rights is the proper remedy Stay of Proceedings. THE LAW It is well noted that in Charter cases the burden of establishing Charter violation rests with the applicant on balance of probabilities. R. v. Mack (1988), 44 C.C.C. (d) 513. The law applicable to Stay of Proceedings applications is clear and has been set out in various decisions of the Supreme Court of Canada commencing with R. v. Jewitt (1985), 1985 CanLII 47 (SCC), 21 C.C.C. (3d) 7; R. v. Keyowski (1988), 1988 CanLII 74 (SCC), 40 C.C.C. (3d) 481; R. v. Conway (1989), 1989 CanLII 66 (SCC), 49 C.C.C. (3d) 289; R. v. Scott (1990), 1990 CanLII 27 (SCC), 61 C.C.C. (3d) 300; R. v. Potvin (1993) 1993 CanLII 113 (SCC), 83 C. C. C. (3d) 97; R. v. Power (1994), 1994 CanLII 126 (SCC), 89 C. C. C. (3d) and R. v. O'Connor (1995), 1995 CanLII 51 (SCC), 103 C.C.C. (3d) 1. In R. v. O'Connor the Supreme Court of Canada indicated that there was no utility in maintaining two distinct approaches to abusive conduct. Both the majority and minority judgments are in agreement that the concept of abuse of process has been subsumed in the Charter and should not be considered separately unless circumstances arise to which the Charter does not apply. The above noted authorities hold that Stay should be granted where compelling an accused to stand trial would violate those fundamental principles of justice which underlie the community's sense of fair play and decency or where proceedings are vexatious or oppressive. It is also established that Stay of Proceedings should only be entered in "the clearest of cases". In R. v. Conway it was held that where the affront to decency and fair play is disproportionate to the societal interest in the effective prosecution of criminal cases then the administration is best served by staying the proceedings. Justice L'Heureux-Dube in R. v. Power stated at page 10 that courts have residual discretion to remedy an abuse of process only in the clearest of cases. She described those cases as being "conduct which shocks the conscience of the community and is so detrimental to the proper administration of justice that it would warrant judicial intervention." Further on she states what is required for situation to be deemed the "clearest of cases". To conclude that the situation 'is tainted to such degree' and that it amounts to one of the 'clearest of cases', as the abuse of process has been characterized by the jurisprudence, requires overwhelming evidence that the proceedings under scrutiny are unfair to the point that they are contrary to the interests of justice .... Where there is conspicuous evidence of improper motives of bad faith or of an act so wrong that it violates the conscience of the community, such that it would genuinely be unfair and decent to proceed, then, and only then, should courts intervene to prevent an abuse of process which could bring the administration of justice into disrepute. Cases of this nature will be extremely rare.' In R. v. Sherratt (1991), 1991 CanLII 86 (SCC), 63 C.C.C. (3d) 193 (S.C.C.) L'Heureux-Dube stated at page 204: The perceived importance of the jury and the Charter right to jury trial is meaningless without some guarantee that it will perform its duties impartially and represent, as far as is possible and appropriate in the circumstances, the larger community. Indeed, without the two characteristics of impartiality and respensentativeness, jury would be unable to perform properly many of the functions that make its existence desireable in the first place." The Supreme Court of Canada in R. v. Valente (1985), 1985 CanLII 25 (SCC), 23 C.C.C. (3d) 193 has stated that the test for independence and impartiality is the reasonable apprehension of bias. Has the pre-trial publicity generated in this case caused reasonable apprehension of bias? It may well be that at this stage there is an apprehension of bias but the question is whether that apprehension is reasonable. As was stated by the Ontario Court of Appeal in R. v. Hubbert (1975) 1975 CanLII 53 (ON CA), 29 C.C.C. (2d) 279 at page 289: "...There is an initial presumption that juror not disqualified by the statute under which he is selected, will perform his duties in accordance with his oath." The Supreme Court of Canada in R. v. Sherratt referring with approval to the Ontario Court of Appeal decision in R, v. Hubbert stated at page 206: "Impartiality is state of mind to be tested at the time of the swearing-in of each juror." As of this date it is impossible to say whether an impartial jury can be selected because no potential jurors have been questioned on the effect of pre-trial publicity on their impartiality. In R. v. Vermette 1988 CanLII 87 (SCC), [1988] S.C.R. 985 case which involved exceptional pre-trial media publicity given to the statements of very popular Quebec Premier made in the National Assembly about matter then before the courts and about the credibility of witnesses the Supreme Court of Canada determined that Stay of Proceedings in that case was premature. At page 992 LaForest, J. stated: ".. It is only at the stage when the jury is to be selected that it will be possible to determine whether the respondent can be tried by an impartial jury... In deciding the question, one must not, in my view, rely on speculation... In an extreme case (and the present certainly qualifies), such publicity should lead to challenge for cause at trial, but am far from thinking that it must necessarily be assumed that person subjected to such publicity will necessarily be biased." am satisfied that in the present case the pre-trial publicity, filled as it is with prejudicial and inflammatory information has lead to an apprehension of bias. However am also of the opinion that until it is known to what extent this information has affected ­potential jurors, the issue remains speculative. Has that publicity so irreparably prejudiced potential jurors or so impaired the presumption of innocence that it is impossible to say that fair trial can be held? As of this writing there is no evidence that this has happened. It will only be at the stage of jury selection that this can be determined. Simply because there has been adverse publicity does not necessarily mean that fair trial cannot be held. As stated by Cory, J. in Phillips v. Nova Scotia (Commission of Inquiry into the Westray Mine Tragedy) (1995), 1995 CanLII 86 (SCC), 98 C. C. C. (3d) 20 at p. 71: ".. The alleged partiality of jurors can only be measured in the context of the highly developed system of safeguards which have evolved in order to prevent just such problem. Only when these safeguards are inadequate to guarantee impartiality will s.11(d) be breached." In Phillips Cory, J. makes the valid point that impartiality cannot be equated with ignorance of all the facts of the case. He makes the following observation at p. 71. "...A definition of an impartial juror today must take into account not only all our present methods of communication and news reporting techniques, but also the heightened protection of individual rights which has existed in this country since the introduction of the Charter in 1982. It comes down to this: in order to hold fair trial it must be possible to find jurors who, although familiar with the case, are able to discard any previously formed opinions and to embark upon their duties armed with both an assumption that the accused is innocent until proven otherwise, and willingness to determine liability based solely on the evidence presented at trial." At p. 72 Justice Cory catalogues the safeguards he previously referred to as: The solemnity of the juror's oath, the existence of procedures such as change of venue and challenge for cause, and the careful attention which jurors pay to the instructions of judge all help to ensure that jurors will carry out their duties impartially. In rare cases, sufficient proof that these safeguards are not likely to prevent juror bias may warrant some form of relief being granted under s.24(1) of the Charter." In my opinion to this list can also be added the safeguard jury unanimity and peremptory challenges. Justice Cory notes that relief will not be granted on speculation alone and that the proper time for assessing whether the accused's s.11(d) rights have been violated is at the time of jury selection. As stated in R. v. O'Connor at p. 41 "A Stay of proceedings is last resort, to be taken when all other acceptable avenues of protecting the accused's right to full answer and defence are exhausted." Although v. O'Connor dealt with violation of the accused's s.7 Charter rights due to non disclosure, the principle enunciated is equally applicable to situation involving an accused's 11 (d) and (f) rights. In my opinion the Applicant in the present case has not established on balance of probabilities that his right to fair trial by an impartial jury has been violated. What the applicant has established is that challenges for cause are desirable and I will permit counsel to challenge prospective jurors for cause should counsel so wish providing that a list of proposed questions is presented to the Court for it perusal by 930 a.m. Thursday October 1 st, 1998. It may be that such an exercise will lead to the discovery that noimpartial jurors can be found, but until this exercise is attempted we are left with mere speculation as to the effect of the pre-trial publicity. Accordingly the application for a stay of proceedings is dismissed.

The accused was charged with first degree murder. Prior to jury selection, he applied for a stay of proceedings, alleging that there had been a breach of his right to a fair trial due to negative pre-trial publicity. Dismissing the application, that the application was premature. However, the accused would be permitted to challenge potential jurors for cause due to the highly prejudicial and inflammatory pre-trial media reports.

7_1998canlii2924.txt

nan S.C.C. No. 02778 NOVA SCOTIA COURT OF APPEAL Clarke, C.J.N.S.: Matthews and Pugsley, JJ.A. BETWEEN: DONALD RUSSELL GERALD HALL and HER MAJESTY THE QUEEN Respondent Robert A. Carruthers for the Appellant William D. Delaney for the Respondent Appeal Heard: March 16, 1993 Judgment Delivered: March 16, 1993 THE COURT: Appeal allowed and sentence for perjury contrary to s. 131(1) of the Criminal Code varied to nine months imprisonment, per oral reasons for judgment of Clarke, C.J.N.S.; Matthews and Pugsley, JJ.A. concurring. The reasons for judgment of the Court were delivered orally by: CLARKE, C.J.N.S.: Leave is sought by the appellant and if granted to appeal from a sentence of two years imprisonment for perjury imposed by His Honour Judge Archibald of the Provincial Court on October 8, 1992. The appellant was charged that he committed perjury at the preliminary hearing of Michael Merlin Fillmore by giving false testimony with intent to mislead the court contrary to section 131(1) of the Criminal Code. He pled guilty to the charge. Mr. Fillmore was co‑accused in break, enter and theft in which the appellant was also involved. The break occurred at garage at which the appellant had been employed. The theft included cigarettes, chips and money. It appears from the record that the false evidence given by the appellant was undoubtedly factor that led to Fillmore's acquittal. The appellant contends the sentence of two years was excessive and too harsh. The Crown agrees and says in its factum that the sentence imposed was manifestly excessive". It is argued on behalf of the appellant, who is twenty‑five years old, that he felt intimidated, that the perjured evidence was not given for his own benefit and that he had no criminal record other than his own conviction for the break, enter and theft out of which this proceeding is part. These factors, notwithstanding, the trial judge in considered reasons stated the very serious nature of this offence. We agree with his observations that perjured evidence undermines the effective administration of justice and simply cannot be tolerated. People must know that the oath or affirmation to tell the truth in judicial proceeding is solemn commitment to honesty. Parliament has spoken clearly on the seriousness of this matter by providing maximum sentence of fourteen years imprisonment. The opinion of this court was stated in R. v. Crawford (1988), 81 N.S.R. (2d) 88 at page 89, as follows: "The integrity of our system depends upon the honesty of those who are involved in it and the truthfulness of those who testify in its proceedings. Not only the appellant but the general public must be deterred from committing the offence of perjury." While we find that the trial judge committed no error in principle, we have concluded after reviewing the sentences imposed by this court and others that the upper end of the range of sentences for this offence does not appear to have reached two years. The aggravating factors here, while serious, appear to fall within a lower classification of time to be served. For this reason our review of the fitness of the sentence imposed upon the appellant persuades us that leave to appeal ought to be granted and the appeal should be allowed. Accordingly we vary the sentence imposed upon the appellant to nine months. Concurred: Matthews, J.A. Pugsley, J.A. IN THE PROVINCIAL COURT BETWEEN: HER MAJESTY THE QUEEN and DONALD RUSSELL GERALD HALL SENTENCING HEARD BEFORE: His Honour Judge Ross B. Archibald PLACE HEARD: Amherst, Nova Scotia DATE HEARD: October 8, 1992 CHARGE: THAT he, at or near Amherst, in the County of Cumberland, Province of Nova Scotia, on or about the 26th day of February, 1992 did commit perjury at the Preliminary Hearing in the Provincial Court, Amherst, Cumberland, County, Nova Scotia, between Her Majesty the Queen vs Michael Merlin Fillmore, by giving false testimony with intent to mislead the court, contrary to Section 131(1) of the Criminal Code. COUNSEL: Carole Beaton, for the Prosecution Doug Morris, for the Defence S.C.C. No. 02778 NOVA SCOTIA COURT OF APPEAL BETWEEN: DONALD RUSSELL GERALD HALL and HER MAJESTY THE QUEEN Respondent REASONS FOR JUDGMENT BY: CLARKE, C.J.N.S. (orally)

The appellant pled guilty to perjury and was sentenced to two years imprisonment. He appealed the sentence as being excessive and too harsh. Allowing the appeal and varying the sentence to nine months, that while perjury is a very serious offence, the sentence exceeded the range imposed for offences of this nature.

e_1993canlii3183.txt

C.A. No. 124001 NOVA SCOTIA COURT OF APPEAL Chipman, Roscoe and Pugsley, JJ.A. and CHILDREN'S AID SOCIETY OF HALIFAX and S.F. Respondents Revised Decision: The text of the original decision has been revised to remove personal identifying information of the parties on March 14, 2008. D. A. Rollie Thompson for the Appellant Deborah Conrad for the Respondent, Children's Aid Society Appeal Heard: April 4, 1996 Judgment Delivered: April 4, 1996 THE COURT: The appeal is dismissed without costs as per oral reasons for judgment of Chipman, J.A.; Roscoe and Pugsley, JJ.A., concurring. The reasons for judgment of the Court were delivered orally by CHIPMAN, J.A.: This is an appeal from a decision of a judge of the Family Court declining to rescind an order in 1993 for permanent care and custody of the appellant\'s granddaughter. The basis on which the application was made to the Family Court was that the appellant consented to or agreed with the 1993 order on the faith of the agency's then plan of care which envisaged that adoption plans would be initiated by the appellant. Unfortunately, the adoption plans did not materialize because the agency lost confidence in the appellant's parenting skills. The appellant has drug dependency problem and by June of 1995 was hospitalized. At that time, the appellant's husband reported the problem to the agency it sought its intervention because he alone could not care for the child. The appellant sought rescission of the order in question on the authority of Civil Procedure Rules 15.07 and 15.08: Amendment of judgments and orders 15.07 Clerical mistakes in judgments or orders, or errors arising therein from any accidental mistake or omission, or an amendment to provide for any matter which should have but was not adjudicated upon, may at any time be corrected or granted by the court without appeal. Reversal or variation of order 15.08 Where party is entitled to, (a) maintain proceeding for the reversal or variation of an order upon the ground of matter arising or discovered subsequent to the making of the order; (b) impeach an order on the ground of fraud; (c) suspend the operation of an order; (d) carry an order into operation; (e) any further or other relief than that originally granted; he may apply in the proceeding for the relief claimed. These rules were available for application by the Family Court at the discretion of the judge by virtue of Rule 1.04 of the Family Court Rules. The Family Court judge in rejecting the application said: One major obstacle in assessing the procedure sought by the grandmother is that this court is required under both the Family Maintenance Act (section 18(5) and the Children and Family Services Act (section 2(1)(2) and 3(2)(3)) to issue orders which are judicially determined to be in the best interest of child. Such determination is not corollary or an adjunct to previous proceeding but rather the main and most fundamental issue to be assessed by the court. Not mere rubber stamping of consent agreement, if one is presented to the court as was the case at the October 1993 proceeding. There is no certainty that this court would or should have issued custody order under the Family Maintenance Act even with the presentation of consent order to such effect. Additionally, the grandmother relies upon Wood v. Wood (1982), 56 N.S.R. (2d) 217 (N.S.S.C.) as authority to apply Civil Procedure Rule 15:07 and 15:08. With respect, do not find Wood, supra, to be persuasive. In Wood, supra, the Supreme Court amended decree nisi which inadvertently failed to include an agreement between husband and wife that the wife would vacate once lump sum spousal support payment was made to her. However, note in Wood there was evidence, letter exchanged between the parties, which demonstrated that the parties understood the wife would vacate upon payment. Besides which, in Wood, both parties indicated their common understanding of the necessity to vacate upon payment of support. Although there are other distinguishing facts relative to the Wood case from the present application, it is most noteworthy that the court in Wood was not dealing with the future well being of an innocent young child. It was financial matter between two adults. In my view, this is material distinction. Furthermore, the court has listened to the electronic tape recording of the 1993 proceedings. It is not obvious from the court record that there was any clear intention to grant an order under the Family Maintenance Act. In fact, the Agency specifically sought permanent care and control order to ensure the continuation of services to the grandmother and the child. Other options were available to the Agency but those options were not discussed or placed before the court. In summary, based upon all of the evidence, the court finds there was no oversight regarding the issuance of Family Maintenance Act order to the grandmother. If the court is wrong in that regard, the court cannot find it is in S.'s best interest to now issue retroactive custody order under the Family Maintenance Act. In short, the present application is dismissed. We agree fully with this reasoning. The procedure adopted by the appellant is, as the respondent said, "an effort to compel a retrospective consideration of the past circumstances of [the child], rather than an assessment of her present circumstances". The appeal is dismissed without costs. Chipman, J.A. Concurred in: Roscoe, J.A. Pugsley, J.A. 1995 F.H. NO. C91-54 IN THE FAMILY COURT FOR THE PROVINCE OF NOVA SCOTIA and THE CHILDREN'S AID SOCIETY OF HALIFAX DECISION HEARD BEFORE: THE HONOURABLE CORRINE E. SPARKS JUDGE OF THE FAMILY COURT PLACE: HALIFAX FAMILY COURT DATE: DECEMBER 8, 1995 DECISION: DECEMBER 20, 1995 COUNSEL: DONALD A. (ROLLIE) THOMPSON, COUNSEL FOR M.M. WITH SENIOR LAW STUDENT, LESLIE MACLEOD DEBORAH CONRAD, COUNSEL FOR CAS OF HALIFAX ANGELA ATWOOD-BREWKA, COUNSEL FOR S.F. C.A. No. 124001 NOVA SCOTIA COURT OF APPEAL and CHILDREN'S AID SOCIETY OF HALIFAX and SANDRA FINDLAY Respondents FOR JUDGMENT BY: CHIPMAN, J.A.

This was an appeal from a Family Court decision declining to rescind an order for the permanent care and custody of the appellant's granddaughter. She relied upon Civil Procedure Rules 15.07 and 15.08. Dismissing the appeal, that the appellant's application was an effort to compel a retrospective consideration of past circumstances of the child rather than an assessment of her current circumstances. The proper remedy would be for the applicant to apply for a termination of the order under s. 48 of the Children and Family Services Act.

3_1996canlii8702.txt

nan QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2007 SKQB 225 Date: 2007 06 29 Docket: QB 107/07 Judicial Centre: Yorkton BETWEEN: HER MAJESTY THE QUEEN and KEVIN YAREMKO Counsel: Darren Grindle for the appellant No one appearing for the respondent JUDGMENT PRITCHARD J. June 29, 2007 [1] On January 15, 2007 the Respondent pled guilty to the offence of failing or refusing, without reasonable excuse, to attend and complete an anger management program as required by probation order made September 14, 2005. Sentencing was adjourned to March 5, 2007 to allow pre-sentence report to be prepared. On March 5, 2007, the Respondent was sentenced to fine of $200.00 and again placed on probation for period of one year. Among other things, the probation terms once again require Mr. Yaremko to partake in anger management programming. As he concluded the sentencing, and without any discussion or explanation, the sentencing judge waived the victim surcharge. The surcharge was waived notwithstanding that the Respondent had not requested an exemption pursuant to s. 737(5) of the Criminal Code (the “Code”). [2] The Crown appeals the sentence to the extent that the victim surcharge was waived. The appeal is made on the basis that the trial judge did not comply with the mandatory provisions of s. 737 of the Code. Section 737 states: 737. (1) Subject to subsection (5), an offender who is convicted or discharged under section 730 of an offence under this Act or the Controlled Drugs and Substances Act shall pay victim surcharge, in addition to any other punishment imposed on the offender. (2) Subject to subsection (3), the amount of the victim surcharge in respect of an offence is (a) 15 per cent of any fine that is imposed on the offender for the offence; or (b) if no fine is imposed on the offender for the offence, (i) $50 in the case of an offence punishable by summary conviction, and (ii) $100 in the case of an offence punishable by indictment. (3) The court may order an offender to pay victim surcharge in an amount exceeding that set out in subsection (2) if the court considers it appropriate in the circumstances and is satisfied that the offender is able to pay the higher amount. (4) The victim surcharge imposed in respect of an offence is payable at the time at which the fine imposed for the offence is payable and, when no fine is imposed, within the time established by the lieutenant governor in council of the province in which the surcharge is imposed for payment of any such surcharge. (5) When the offender establishes to the satisfaction of the court that undue hardship to the offender or the dependants of the offender would result from payment of the victim surcharge, the court may, on application of the offender, make an order exempting the offender from the application of subsection (1). (6) When the court makes an order under subsection (5), the court shall state its reasons in the record of the proceedings. [Emphasis added] [3] The imposition of a victim fine surcharge under s. 737 of the Code is mandatory subject only to an application under s. 737(5) relating to undue hardship. (See R. v. Jimmy (B.C.S.C.), [1994] B.C.J. No. 727 and R. v. Tellier, 2000 ABCA 219 (CanLII), [2000] A.J. No. 903). If an offender is exempted from payment of the victim surcharge, it is also mandatory that the court give reasons. [4] The sentencing judge failed to comply with the explicit provisions of s. 737(1) of the Code or, alternatively, the explicit provisions of ss. 737(5) and (6) of the Code. Pursuant to s. 687(1)(a) of the Code, this court may vary sentence passed by the trial court. The record establishes that the Respondent was employed at the time of sentencing and has been consistently employed his entire adult life. Although the Respondent has financial challenges, there is no evidence that they amount to undue hardship particularly given that the maximum victim surcharge payable in these circumstances is only $30.00. This represents 15 per cent of the fine assessed by the sentencing judge. As stated by the Crown, the funds raised through victim surcharges play an important and vital part in the criminal justice system and it is important that sentencing judges pay serious attention to their obligations under s. 737 of the Code. All amounts paid by way of victim surcharges are used in accordance with s. 21 of the Victims of Crime Act, 1995, S.S. 1995, c. V-6.011. [5] In the result, the sentence is varied to include an order requiring the Respondent to pay a victim surcharge in the amount of $30.00. The Respondent shall have 30 days to pay the victim surcharge calculated from the day he is served with copy of this decision. J. J.L.G. Pritchard

The Crown appeals the sentence to the extent that the victim surcharge was waived. The appeal is made on the basis that the trial judge did not comply with the mandatory provisions of s. 737 of the Criminal Code. HELD: The imposition of a victim fine surcharge under s. 737 of the code is mandatory subject only to an application under s. 737(5) relating to undue hardship. If an offender is exempted from payment of the victim surcharge, it is also mandatory that the Court give reasons. The sentence is varied to include an order requiring the respondent to pay a victim surcharge in the amount of $30.

e_2007skqb225.txt

PROBATE COURT OF NOVA SCOTIA Citation: Hand v. Hand Estate, 2011 NSSC 53 Date: 20110207 Docket: Probate No. 56949 Hfx No. 325163 Registry: Halifax The Estate of Pauline Hand DECISION on COSTS Judge: The Honourable Justice Gerald R. P. Moir Date of Hearing: Written submissions only Last Written Submissions: January 14, 2011 Counsel: B. William Piercey, Q.C., counsel for the applicant, Richard Hand A. Douglas Tupper, Q.C., Daniel Feron Wallace, and Sara Mahaney, counsel for the respondents, Dr. Robert F. Hand, Miranda Hand Spilios and Penelope Courtin who lately act on their own Timothy C. Matthews, Q.C. and Jason Thomas Cooke, counsel for the Estate of Pauline Hand [1] Mr. Richard Hand applied for an order that he has one-half interest in condominium held jointly by his parents until the death of his mother. However, by the time the application was heard, Mr. Hand allowed that title passed to the survivor and he contended that his parents made mutual wills supported by an implied promise against revocation, which promise his father breached by making will in favour of his sister after the death of his mother. [2] found that the wills were not mutual and that no agreement against revocation could be implied. There was also an issue about the failure of the representatives of Mrs. Hand's estate to provide an accounting. That was resolved, but it was resolved only as the hearing began. [3] The father, Dr. Robert Hand, sought party and party costs against his son. On Dr. Hand's behalf, Mr. Tupper pointed out that Tariff provides for costs of $38,750 on the basic scale if the value of the condominium is used as the "amount involved" and $26,750 if one-half value, the amount originally at issue, is used. However, Dr. Hand and his daughter are now acting on their own. They contend that the entire application was sham and that no lawyer should be paid anything. [4] Richard Hand is co-executor of his mother's estate, as well as the party who claimed one-half interest in the condominium. He was represented in his personal claim by Mr. Piercey, who had no involvement with the issues about estate accounting. [5] Richard Hand seeks to have his solicitor and client costs paid out of the estate. Alternatively, he seeks party and party costs. [6] Mr. Tupper and Mr. Piercey refer to Horne Estate, 2003 NSPB (CanLII) in which Registrar Atton adopted Ian Hull's summary of considerations favourable to an award of costs out of an estate. This is found at para. of her decision: where the litigation arises out of the acts or fault of the deceased; where the order sought is for the protection of the trustee, such as an interpretation problem or where other directions or advice of the court are sought; where there are reasonable grounds for the litigation such as proof in solemn form; where suspicious circumstances are demonstrated; where the court's scrutiny or supervision is warranted. [7] Mr. Piercey points out that, in addition to these factors, Mr. Hull went on to describe the general practice and two principles. [8] As for general practice, he said "In estate litigation, however, the Canadian and English courts have traditionally exercised their discretion by departing from the usual costs rule whereby the unsuccessful party pays the costs of the successful party." emphasize "estate litigation". [9] Mr. Hull suggests that two principles prevail over the "usual costs rule": First, where the difficulty, conflicts or ambiguities which give rise to the litigation are either in whole or in part, the fault of the testatrix or the fault of those parties interested in the residue, the courts have ordered the parties' costs to be paid out of the estate. Second, there is public interest in ensuring that wills are valid and that the needs of the deceased's dependants are properly provided for. [10] Mr. Hull's descriptions of practice and principle is consistent with Nova Scotia jurisprudence, such as the following passage from Morash v. Morash Estate, [1997] N.S.J. 403 at para. 22: In wills matters the general practice appears to be for executors to be awarded solicitor and client costs to be paid from the estate in any event, for executors may have no personal interest in the outcome and no other source of reimbursement for their legal expenses. When the matter in contention is not frivolous, unsuccessful opposing parties usually have their costs paid from the estate as well, usually on party and party basis, but occasionally, depending on the practice of the individual judge, on solicitor and client basis. Costs are discretionary with the trial judge… [11] In connection with the claims for solicitor and client costs, Mr. Piercey refers to Bley v. Bley, [1986] B.C.J. 1644 (S.C.), in which lack of testimony capacity was alleged; Levy Estate, 1989 CanLII 4382 (ON CA), [1989] O.J. 660 (O.C.A.), which raised the then novel question of whether bequest to foreign charity qualifies as charitable trust; Syrota v. Clark Estate, [1991] M.J. 466 (Q.B.), concerning testimony capacity and undue influence; Irwin v. Cupolo, [1999] O.J. 3759 (S.C.J.), testimony capacity; Morash v. Morash Estate, testimony capacity, and; Fort Sackville Foundation v. Darby Estate, [2010] N.S.J. 53 (S.C.), which was about the interpretation of gift in will and an attempt to apply cy‑près to it. [12] In connection with Mr. Hand's alternative claim for party and party costs, am referred to Re. Harmer, 1963 CanLII 143 (ON SC), [1963] O.J. 778 (H.C.J.), motion for directions; Champ Estate, [1986] S.J. 277 (Q.B.), testator's family maintenance; Ramsay Estate, [2004] N.S.J. 375, testimony capacity, and; Wamboldt v. Wamboldt Estate, [2010] N.S.J. 328 (S.C.), testimony capacity and undue influence. [13] The central issue in Mr. Hand\'s application was not about the meaning of his mother\'s will. She clearly made a gift to him that failed. The evidence referred to at para. 23 and 24 of the main decision shows that the possibility of that failure was brought to the attention of Mrs. Hand before she executed the will. [14] Rather, the issue was one between Mr. Hand and his father. Was Dr. Hand required to stand by his 1999 will, including the gift of the condominium to his son? The application was not "estate litigation". It was litigation between two living persons about the contractual obligations of one of them. [15] have therefore determined not to award costs against the estate in favour of Richard Hand. [16] The purpose of an award of costs is to provide the successful party with partial but substantial indemnity against legal fees measured by what would ordinarily be charged to client for the kind of work undertaken on behalf of the successful party in the actual case. In light of the present position of Dr. Hand and his daughter, and my determination not to order costs in favour of Mr. Hand, those three parties will bear their own costs. [17] It was necessary for the estate to participate in the application because it originally involved questions about Mrs. Hand's property, it involved demand for accounting, and the late Mr. Thomas Burchell, Q.C., was subpoenaed to give evidence about both the administration of the estate and the wills he drafted. Considering all of the circumstances, the representatives of the estate should be entitled to recover their solicitor and client costs from the estate.

A co-executor and beneficiary under his mother's will, Mr. Hand applied for an order confirming her gift of a one-half interest in a condo held jointly by his parents until her death. His sister and his father, Dr. Hand, successfully defeated the motion, with the court holding the gift was invalid and the condo passed solely to Dr. Hand on Mrs. Hand's death. Dr. Hand abandoned his motion for costs, but Mr. Hand sought to have his solicitor-client costs paid out of the estate. In the alternative, he sought party and party costs against his father and sister. The parties will bear their own costs. There is no need to depart from the general rule that the successful party is entitled to costs. Here, this would be Dr. Hand but since he is not seeking costs, none will be awarded. As for the proposition that it's appropriate to have the estate pay costs related to estate litigation, it doesn't apply here. The will's meaning was not unclear, the gift was just invalid. The central issue was between Mr. Hand and his father: was Dr. Hand required to stand by his previous gift, and were the wills made by he and his wife mutual wills subject to a promise against revocation? In this sense, this was not estate litigation, but rather a dispute between two living persons about the contractual obligations of one of them.

5_2011nssc53.txt

1995 S.H. No. 120130 IN THE SUPREME COURT OF NOVA SCOTIA BETWEEN: GEORGE TANNOUS and LODY TANNOUS, and CITY OF HALIFAX, DECISION HEARD: at Halifax, Nova Scotia before The Honourable Justice Walter R.E. Goodfellow on October 2, 1995, in Chambers DECISION: October 2, 1995 (Orally) WRITTEN RELEASE OF ORAL: October 11, 1995 COUNSEL: Joel E. Fichaud, Q.C. Solicitor for the Appellants Mary Ellen Donovan Solicitor for the Respondent GOODFELLOW, J.: BACKGROUND Mr. and Mrs. Tannous own home at Kelvin Grove in Halifax. Their backyard abuts the Bedford Highway. On August 26, 1993, Halifax City Council passed resolution to expropriate parcel of land which included almost all of the backyard of Kelvin Grove, for the purpose of widening the Bedford Highway. The expropriation resolution was filed at the Registry on September 7, 1993, the effective date of expropriation. The area expropriated was approximately 10 feet of the 30 foot rear yard for retaining wall. The construction of the wall began in February, 1994 with the work in the area virtually completed by the middle of June, 1994. The above ground portion of the wall was designed to minimally intrude upon the appellants' property, but as result of design changes, was located entirely within the original street width, leaving only the footings protruding into the claimant's property. Subsections 13(2) and (3) of the Expropriation Act state that within 90 days of expropriation, the expropriating authority must make an offer for "full compensation" including injurious affection based on appraisal of value and injurious affection. By letter dated October 6, 1993, from the City to the Tannous', the City stated: "In accordance with the provisions of Section 13 of the Expropriation Act, the City hereby offers the amount of $5,855 in full compensation for your interest in the expropriated land; which offer, as required by the Act is based on an independent report appraising the market value of the land. copy of the appraisal report prepared by Ingram and Ingram Appraisals Services Limited is enclosed herewith." On November 10, 1993, prior to the completion of the work, the City received an appraisal report from the appellants' solicitor valuing the amount of compensation at $108,500. On March 7, 1994 notice and statement of claim was filed by the claimant with the Utility and Review Board under the Expropriation Act. Shortly thereafter certificates of readiness were filed by counsel and the Board set the matter down for hearing on November 14‑18, 1994. On September 29, 1994 the appraisal report for the City was completed and forwarded to the claimant's solicitor and which report valued the claim at $15,000. On October 19, 1994 the appellants were advised that the City intended to abandon the expropriation retaining only an easement necessary for the footing. City Council approved the abandonment on October 28, 1994. In early November on the date scheduled for the pre‑trial hearing at which an adjournment of the hearing was obtained by the Tannous' solicitor, the case was settled in discussions held after the pre‑trial, for the sum of $20,000. Mr. Fichaud rendered solicitor‑client account to the City in the amount of $19,420 plus taxes representing approximately 100 hours time spent on the file. The solicitor\'s account was taxed by Arthur Hare and in a decision dated August 25, 1995 he reduced the account to $14,000 plus taxes. At the taxation, report prepared by David Miller, Q.C. was filed by the City valuing the work done by Mr. Fichaud which report concluded that the work should have been billed at $10,000. The Tannous\' appealed the decision of the Taxing Master to reduce theft solicitor\'s account from $19,420 plus taxes to $14,000 plus taxes. 2. APPEAL ISSUES Issue 1. What is the standard for this Court on an appeal from taxation? Issue 2. Did the learned Taxing Master err in principle respecting the solicitor's account? Issue 3. Did the learned Taxing Master err in principle respecting the costs of the taxation? Issue 4. Did the learned Taxing Master err in principle respecting the interest on unpaid legal accounts? Issue 1. What is the standard for this Court on an appeal from taxation? Civil Procedure Rules 63.39 and 63.40 state: "63.39 (1) Unless the court otherwise orders, an appeal from taxation shall be confined to the items and grounds specified and shall be heard on the evidence before the taxing officer. (2) The decision of the taxing officer shall be final and conclusive on all matters which have not been appealed from." "63.40 On an appeal from taxation, the court may (a) exercise all the powers of taxing officer; (b) review any discretion exercised by the taxing officer as fully as if the taxation were made by the court in the first instance; and ©) grant such order on the application, including the costs of appeal and taxation, as is just." In Cape Breton Landowners v. Nova Scotia Forest Industries (1983), 1983 CanLII 3014 (NS CA), 58 N.S.R. (2d) 193 (CA), MacDonald, J.A., for the Court stated at pp. 197‑198: "In my opinion the discretion exercised by taxing master is not to be interfered with on appeal unless and until it is shown that he fell into error by the exercise of some wrong principle. Once such error is shown the judge hearing the appeal may exercise all the powers set out in Rule 63.40." The Tannous' must establish that the learned Taxing Master erred in principle. If there was an error in principle, this Court may exercise all the powers stated in Rule 63.40 to determine the costs. Issue 2. Did the learned Taxing Master err in principle respecting the solicitor's account? The Tannous' allege three errors by the Taxing Master. will deal directly with each in the manner they are advanced, however, to some extent they are extracted out of context of the overall determination. Just as in most determinations where number of factors have to be considered and weighed, it is the totality of considerations which resulted in the Taxing Master's determination. These factors are not of themselves capable of scientific precision nor do they independently of necessity destroy or vary the final determination if they are off. In addition, the contribution of weight given to any factor is an exercise for the Trial Judge, or in this case the Taxing Master. First error: That the solicitors should have recognized the statutory offer was an initial offer and not necessarily or likely the final position of the City. The Taxing Master stated: "In this regard there have been pronouncements by our Courts that expropriation authorities do not always commence their dealings by offering reasonable amounts in compensation because of incomplete facts, but in due course what is thought as reasonable compensation is made." Counsel indicate they have not been able to find any such pronouncements, however, essentially agree with the sentiments expressed by the Taxing Master. suspect that there have been many findings that the initial offer made in an expropriation bears no resemblance to the final determination of value. It was common knowledge for years to note that municipalities offered assessed values where an entire property was taken by expropriation. Theoretically, assessed value was market value, but in reality rarely was such the case. For years, in most cases, market value was higher than the assessed value. However, at present with current uncertainties of the market, we see examples of market value being considerably lower than assessed municipal values as determined by sales in the open market. The statutory requirement is not for "full" or final offer but an offer of an amount in "full compensation" for the interest excepting compensation for business loss. The amount which constitutes "full compensation", will vary in most cases as conditions develop, such as appraisals, checking out the market place, etc. The solicitors for the Tannous' are probably correct that the failure of the City to include an item of compensation for injurious affection did not render the City's offer one of "full compensation" for interest. do not see how that is relevant to the issue of solicitor's fees. If anything, it is somewhat supportive of the Taxing Master's conclusion that the final determination was quite likely to be different after the input of consequences of the work, etc. Common sense normally decrees that you do not spend great deal of time and expense on briefing damages until you have clear picture of what is involved. The solicitor that expends an extensive amount of time briefing damages before receiving final medical report in an accident case would likely have difficult time justifying such position. The extensive brief filed by the Tannous' deals with arguments that the Statute does not say the City is to make "an unreasonably low" offer, etc. and such is of no assistance in determining the issue before me. The brief does acknowledge that the retaining wall was not completed until sometime around March of 1994. There was agreement for hearing dates in November, 1994. Second error: The Taxing Master compared the "award" of $20,000 to the legal fees of $19,400. The Taxing Master had the benefit of professional opinion by leading member of the Bar, David Miller, Q.C. It is always appropriate for professional to consider the result or fruits of professional labour as it relates to the benefit achieved by the client. This is by no means determining factor but general common sense view that should always be taken by professional. In many cases the circumstances may well justify rendering an account that exceeds or proximates the recovery. The intransigence of one's own client who insists on proceeding with course that they have been advised will result in expenses in proximity or greater than their recovery is one clear example. The Taxing Master is not in error in stating that as a generalization, legal charges must bear some reasonable relationship to the value of the matter at issue. This is only one of the factors that the Taxing Master obviously took into consideration. There is no significance to be attached to the Taxing Master's terminology, "the award was approximately $20,000", as para. 51 of appellants' brief states: "There was no 'award'. The matter was settled." The fact of settlement is an appropriate feature that generally mitigates against the incurring of certain legal fees. Third error: Failure to analyze reasonableness of services actually performed. The appellants suggest that the Taxing Master did not actually examine the completed work. The Taxing Master had the invoices before him and reviewed the invoices. There was no requirement in law that every individual item be examined. The Taxing Master did not conclude that the work was not completed. The Taxing Master, in my view, is entitled to take an overall view and to conclude there were number of factors mandating the reduction in the solicitor's account. There is nothing in the decision to suggest that the Taxing Master disallowed any services that were actually incurred. He simply concluded that the services, although actually incurred, were not reasonable in all the circumstances. Dill v. Town of Windsor (1976), 16 N.S.R. (2d) 560. This is relied upon by the appellant, and agree but am bound by the decision as it is of our Court of Appeal. The determination is not solely on whether the services have actually been incurred but also "to the extent to which such costs are reasonable". have examined the accounts and the detailed explanations filed on this appeal. It appears that the account includes some 41.5 hours of research. It also discloses that there has been no charge for any paralegal services. There has been no premium added to the account, and in fact there has been "discount to the extent that number of hours are not billed in the account of $19,450". One of the reasons the hourly rate of $190 is appropriate is that counsel has many years of experience and has gained reputation as thorough barrister. In this case, briefing and research covers many interesting aspects such as interest, blasting claim, etc. Experienced counsel in the expropriation area would understand the position with regard to interest as well as understand the area concerning blasting claims since it is hardly unique for blasting to take place in the construction of the road. am satisfied all of the work was done, however, am left with the same conclusion as the Taxing Master that some of the research should be chalked up to the gaining of experience in this specific field of law. The Taxing Master might well have been justified in awarding an amount less than the $14,000 as it was open to him to put even greater weight upon the expert's report recommending an appropriate fee for the legal services at $10,000. Had found an error on the part of the Taxing Master, might well have attached greater weight to the expert's report than was done by the Taxing Master. Issue 3. Did the learned Taxing Master err in principle respecting the costs of the taxation? The solicitor and client account for the contested taxation is submitted in the amount of $7,212.24. The Expropriation Act R.S.C. 157, s. 35 dictates that costs are to be determined by s. 52 of the Act: "Costs if award eighty‑five per cent of offer 52 (1) Where the amount to which an owner is entitled upon an expropriation or claim for injurious affection is determined by the Board and the amount awarded by the Board is eighty‑five per cent, or more, of the amount offered by the statutory authority, the Board shall make an order directing the statutory authority to pay the reasonable legal, appraisal and other costs actually incurred by the owner for the purposes of determining the compensation payable, and may fix the costs in lump sum or may order that the determination of the amount of such costs be referred to taxing master of the Supreme Court who shall tax and allow the costs in accordance with this subsection and the tariffs and rules prescribed by the Costs and Fees Act. If award under eighty‑five per cent of offer (2) Where the amount to which an owner is entitled upon an expropriation or claim for injurious affection is determined by the Board and the amount awarded by the Board is less than eighty‑five per cent of the amount offered by the statutory authority, the Board may make such order, if any, for the payment of costs as it considers appropriate, and may fix the costs in lump sum or may order that the determination of the amount of such costs be referred to taxing master of the Supreme Court who shall tax and allow the costs in accordance with the order and the tariffs and rules prescribed by the Costs and Fees Act in like manner to the taxation of costs awarded on party and party basis. R.S., c. 156, s. 52." The Taxing Master is required ("shall") to tax and allow the costs in accordance with, in this case, s. 52(1) and the tariffs and rules prescribed by the Costs and Fees Act. S. 52(1) directs what is meant by costs in the words "pay the reasonable legal, appraisal and other costs actually incurred by the owner for the purposes of determining the compensation payable". It seems to me that the clear meaning of the words is in tune with the modem purposive approach to the interpretation of legislation. Dreidger on the Construction of Statutes, Third Edition, p. 38: "Modern purposive approach. Modern courts do not need an excuse to consider the purpose of legislation. Today purposive analysis is regular part of interpretation, to be relied on in every case, not just those in which there is ambiguity or absurdity. As Matthews J.A. recently wrote in v. Moore: From study of the relevant case law up to date, the words of an Act are always to be read in light of the object of that Act. Consideration must be given to both the spirit and the letter of the legislation.' and also at p. 39: Thomson v. Canada (Minister of Agriculture) 1992 CanLII 121 (SCC), [1992] S.C.R. 385, at 416, L'Heureux‑Dube' J. wrote: '[A] judge's fundamental consideration in statutory interpretation is the purpose of legislation.' At the conclusion of the settlement, the solicitor for the Tannous' rendered his final of series of accounts that totalled $19, 420 plus taxes. The accounts accumulatively covered the costs in legal services advanced as having been actually incurred by the Tannous' for the purposes of determining the compensation payable and concluding the matter by settlement. The Expropriation Act itself declares the purpose of the Act: PURPOSE OF ACT Purpose of Act (1) It is the intent and the purpose of this Act that every person whose land is expropriated shall be compensated for such expropriation. Further purpose (2) Further, it is the intent and purpose of this Act that where family home is expropriated the position of the owner in regards to compensation shall be such that he will be substantially in the same position after the expropriation as compared with his position before the expropriation. Interpretation or Act where family home (3) Recognizing that strict market value is not in all cases true compensation for family home that is expropriated since it may not provide equivalent accommodation to the owner of the family home, this Act shall be interpreted broadly in respect of the expropriation of family home so that effect is given to the intent and purpose set forth in subsection (2). Exception to subsections (2) and (3) (4) The protection given by subsections (2) and (3) shall not extend to any person whose land is money asset or investment and not family home. R.S., c. 156, s. 2." Clearly the end result of the expropriation is to place the Tannous' in substantially the same position after the expropriation as they were before the expropriation. Before the expropriation they had no liability for legal services, and after the expropriation, until recovery of their solicitor's account for services incurred to determine the compensation, they have not been placed substantially in the same position as before the expropriation. Liability for costs of the Tannous' does not normally extend to solicitor and client costs of their solicitor taxing the solicitor and client account before the Taxing Master. In the normal course of litigation or legal services wherein no third party public body is involved, the Tannous', like any other client, are entitled to contest their solicitor's account. Furthermore, there is prerequisite of the account being taxed before legal recovery can be sought by solicitor for his/her account. The purpose of the Expropriation Act is to compensate the homeowner, but such does not extend to what is normally not matter of any liability to the client, namely time and effort required by solicitor in taxing her/his solicitor/client account. The purpose in approach to costs is from the indemnity aspect. Indemnity only extends that for which the client has any liability. Clearly the Tannous' solicitor is not entitled to solicitor and client costs for attendance and taxation of his account. have not been asked to address the question of whether or not the Tannous' solicitor is entitled to any party and party costs of the taxation. have no information as to whether or not any offer of settlement was advanced by the City of Halifax, etc. etc. simply want to make it clear that in my determination the Tannous' had no liability for any costs associated with the solicitor and client taxation, and that in so finding have not foreclosed the possibility in future case of costs on party and party basis being considered. When the taxation took place, clearly the dispute at that stage is between the solicitor and the expropriating body, and there may well be some justification for considering an award on party and party basis in an appropriate situation. conclude that the Taxing Master did not err in principle in denying solicitor and client costs related to the taxation of the solicitor's account When the Taxing Master reduces solicitor and client account by substantial amount, ie. in excess of 25% (and in this case actually 27.9%) it is probably appropriate to deny costs of the taxation. The Law of Expropriation and Compensation in Canada, Todd, Second Edition, c. 16 Costs. Issue 4. Did the learned Taxing Master err in principle respecting the interest on unpaid legal accounts? have provided counsel with copy of my unreported decision in Charles Hardy Appraisals Limited it. Ancaster Holdings Limited, file 93‑194 rendered orally April 29, 1994. In that case Hardy sought payment of interest as designated on its invoices in the following terms: "Accounts 30 days or more overdue are subject to service charge of 2% per month or 24% per annum." There was no term in the contract mandating interest, and concluded: "In the absence of evidence clearly establishing an entitlement to interest on default of payment being acknowledged and accepted by Ancaster Holdings Limited, it is not recoverable." Traditionally barrister did not charge interest on his/her accounts, however, modem practice is for almost all commercial accounts to have some reference to interest on overdue balances stated on invoices. The mere statement of an interest term on an invoice by itself raises no legal obligation for payment of such interest, and the Taxing Master was correct in declining any award of invoice interest. RESULT The appeal is dismissed, and the taxation of costs by the Taxing Master confirmed.

The respondent expropriated a parcel of land owned by the appellant. Prior to a hearing, all claims for the case were settled for the sum of $20,000. The appellant's solicitor presented solicitor and client accounts of $19,420 plus taxes. The respondent directed taxation, and the appellant's solicitor submitted further accounts for services and disbursements of the taxation hearing amounting to $7,212.24. The taxing master received expert opinion that a reasonable fee for the services, exclusive of taxation costs, would be $10,000. He proceeded to tax the account at $14,000, disallowed any costs of the taxation hearing, and disallowed a claim for interest on interim accounts submitted by the solicitor. The appellants appealed. Dismissing the appeal and confirming the taxation, that the taxing master did not make any errors in law. He was entitled to consider as one of the relevant factors the relationship of the total account to the recovery.

3_1995canlii4402.txt

1999 SKQB 140 Q.B. A.D. 1994 No. 2177 J.C. R. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF REGINA BETWEEN: REDHEAD EQUIPMENT LTD. and STANDARD TRANSPORTATION SERVICES INC. and HYNDMAN TRANSPORT (1972) LIMITED DEFENDANTS David E. Thera for Redhead Equipment Ltd. Murray W. Douglas for Hyndman Transport (1972) Limited JUDGMENT MacDONALD J. October 20, 1999 [1] This is an action by Redhead Equipment Ltd. ("Redhead") against Standard Transportation Services Inc. ("Standard") and Hyndman Transport (1972) Limited ("Hyndman") with respect to amounts owing for payments on vehicles leased by Standard from Redhead and for parts and labour supplied by Redhead to these leased vehicles. [2] The trial of the matter lasted one day. Standard did not appear at the trial nor did it at any time throughout the action enter defence to the allegations contained in the statement of claim. [3] The only witnesses called at the trial were Ron Duda and John Cox. The evidence was not complicated and do not intend to repeat it here. At issue was whether the defendant, Hyndman, had an obligation to the plaintiff, Redhead, either in contract or equity for the lease payments on the vehicles and for the repairs to them for the period from September 1, 1993, until February 11, 1994. [4] The main basis for the allegations contained in the statement of claim against Hyndman were centred on discussions which took place at meeting in Regina on October 12, 1993, at the office of Redhead Equipment. [5] Present at that meeting were Ron Duda ("Duda"), sales manager for Redhead, Robert Bennett ("Bennett"), president of Standard, and John Cox ("Cox"), comptroller and partner of Hyndman. At the trial, both Ron Duda and John Cox gave evidence as to what was discussed at the meeting. Both witnesses were agreed that the discussions at the meeting covered the following points: That Standard was not solvent corporation as of that date, That Hyndman had entered into an arrangement with Standard to have them operate under Hyndman's authority, That Hyndman would not agree to have the contracts for the leased vehicles assigned to them, but that they would make payments. [6] The point at issue between the parties is for how long were the lease payments to continue and on what conditions? [7] The evidence of the parties varies on this issue. Cox's evidence is that during the meeting it was understood by the parties that Hyndman's obligation to make the lease payments would be contingent on Standard's ability to make money on its trucking contracts. Duda’s evidence is that he believed Hyndman's obligation for the lease payments would continue for as long as the trucks were in the possession of Standard or operating under the authority of Hyndman. [8] The only notes of the meeting were made by Cox in his day planner, where he states, “Met with Ron Duda—about leases—Hyn. make payments, won’t take over leases”. [9] Exactly how long the lease payments would continue and under what circumstances is not elaborated in those notes. There was no correspondence between the parties confirming the terms of the agreement. [10] It is clear, however, from Cox’s notes and Duda’s evidence at the trial that, (a) Hyndman would not assume the obligations on the Redhead and Standard leases, and (b) that Redhead knew at that meeting that there was a risk to the arrangement because of Standard’s insolvency and that Redhead might not be paid on the leases. It is also clear from Duda’s evidence that Redhead was prepared to assume that risk. [11] At the October 12 meeting there was no discussion as to who would be responsible for payment on work orders for repairs to the leased vehicles. There had, however, been some payment since September by Hyndman to Redhead for repairs to the vehicles. Contract [12] On the evidence as a whole it is apparent that there was no contractual relationship between the parties, Redhead and Hyndman, with respect to the lease payments. [13] Although, there may have been some verbal arrangement with Hyndman to make payments, the terms of such arrangement were never verified by Redhead and it is clear from the evidence that Redhead understood that they continued to carry the risk associated with any breach by Standard of its contractual obligations under the leases. [14] The plaintiff’s claim against the defendant, Hyndman, with respect to the leases is therefore dismissed. 2. Quasi-contractual remedies—quantum meruit or unjust enrichment [15] The plaintiff, Redhead, has argued that if the claim does not succeed in contract, that they should still be entitled to receive compensation for the outstanding lease payments during the September to February period based on the quasi-contractual or equitable remedies of quantum meruit or unjust enrichment. [16] These principles of restitution have developed over time, to allow the courts to make awards to plaintiff in circumstances where, although there may not be strict legal obligation by the defendant to the plaintiff to pay monies, it would be unjust not to make an award. [17] The facts of this case, however, do not satisfy me on a balance of probabilities that this is an appropriate circumstance for an award in favour of the plaintiff based on either quantum meruit or unjust enrichment. [18] The actions taken by both Redhead and Hyndman were taken for the benefit of Standard in an attempt to keep it operational. As it turned out, neither Redhead nor Hyndman benefited from this arrangement for very long and both lost money. [19] The plaintiff’s claim on this ground is also dismissed. Repairs [20] Although there was no specific contract with respect to the repair of the leased vehicles, it is clear that Hyndman did make some payments on behalf of Standard with respect to some work orders that were issued by Redhead. On the evidence of Cox and on review of the documents themselves it appears that the payments by Hyndman for work on the vehicles were made either under the direction of Bennett or for work that was done where specific purchase order number was supplied by Hyndman. On the issue of the unpaid invoices, the plaintiff\'s evidence does not establish that Hyndman had notice of the invoices, or that there was a purchase order number obtained from Hyndman authorizing the repairs. In fact the evidence indicates that Hyndman gave notice to Redhead that they would not be obligated for repairs without a purchase order number once they realized there may have been a misapprehension by Standard’s creditors with respect to the payment of these accounts. [21] The evidence of Duda is that he did not know how the repairs were authorized for Standard. In addition, all of the invoices marked unpaid and claimed at trial continued to be sent to the address for Standard at 417 Maxwell Crescent in Regina and there was no evidence that these accounts were forwarded to Hyndman. [22] I therefore find that the plaintiff\'s claim with respect to the unpaid repairs against Hyndman has not been proven and that portion of the claim is also dismissed. [23] The defendant, Hyndman Transport (1972) Limited, shall have its taxable costs. D. Claim Against Standard Transportation Services Inc. [24] There being no defence entered to the claim by Redhead against Standard and the defendant, Standard, having been noted for default, judgment is therefore given against them in the amount of the plaintiff\'s claim for:(a) damages for breach of contract for the outstanding lease payments and the outstanding parts and service account in the total amount of $63,267.49;(b) pre-judgment interest to be calculated from March 28, 1994, to the date of judgment pursuant to The Pre-Judgment Interest Act, S.S. 1984-85-86, c. P-22.2;(c) costs of this action.

An action for payments owing on vehicles leased by Standard from Redhead and for parts and labour supplied by Redhead to the leased vehicles. At issue was whether Hyndman had an obligation in contract or equity for the lease payments and repairs from September 1993 until February 1994 based on discussions in 1993. There was no correspondence between the parties confirming the terms of the agreement. It was agreed that the discussions concerned the fact that Standard was not solvent at that date and that Hyndman entered an arrangement with Standard to operate under Hyndman's authority; Hyndman would make payments but would not agree to having the leases assigned to them. In issue was for how long the lease payments were to continue and on what conditions. HELD: The action against Hyndman was dismissed with taxable costs. Standard did not enter a defence to Redhead's claim and had been noted in default. Judgment was entered against Standard for $63,267.49 for the outstanding lease payments and parts and service account plus pre-judgment interest calculated from March 1994 to the date of judgment pursuant to the Pre-judgment Interest Act. 1)Redhead's claim against Hyndman was dismissed as there was no contractual relationship between the companies respecting the lease payments. Any verbal arrangement was never verified. It was clear that Hyndman refused to assume the obligations on the leases; that Redhead knew of the risk because of Standard's insolvency and was prepared to take that risk. 2)The facts did not establish appropriate circumstances for an award based on either quantum meruit or unjust enrichment. The actions taken were for the benefit of Standard in an attempt to keep it operational. 3)The claim against Hyndman for unpaid repairs was not proven. Hyndman did make some payments on behalf of Standard for repairs although there was no specific contract to do so. It was not established that the accounts were forwarded, that Hyndman had notice of the unpaid invoices or issued a purchase order number authorizing the repairs. Hyndman gave notice to Redhead that they would not be obligated for repairs without a purchase order number.

3_1999skqb140.txt

Q.B.G. A.D. 1999 No. 36 J.C.B IN THE QUEEN’S BENCH JUDICIAL CENTRE OF BATTLEFORD BETWEEN: MAUREEN JANETTE RODH and MICHELLE NADINE SARAUER Respondent D.W. Clements for the Applicant M.H. DeMong for the Respondent FIAT KRUEGER J. February 18, 1999 [1] Maureen Janette Rodh (Rodh) seeks an order pursuant to ss.87 and 251 of The Land Titles Act R.S.S. 1978 c.L-15 as amended, cancelling the existing Certificate of Title in the name of John Roman Sarauer (Sarauer) and herself as tenants in common and directing the Registrar of Land Titles at Battleford to issue a new title in their joint names with right of survivorship. [2] On July 14, 1997, Rodh and Sarauer, who were then living together, but not married, purchased residential property for $100,000.00. They retained lawyer in Lloydminster, Saskatchewan, who prepared written agreement and attended to having it signed by both the sellers and the purchasers. In that agreement Rodh and Sarauer were described as joint tenants. The same lawyer also acted for them in preparing mortgage, in which they were again described as joint tenants. [3] The sellers were not represented by legal counsel. They prepared, on their own, transfer of the property and sent it to the Land Titles Office in Battleford for registration. On August 20, 1997, title issued in the name of Rodh and Sarauer without the words “as joint tenants” appearing thereon. The mortgage was registered by the lawyer on August 21, 1997. The error describing the purchasers on the title went unnoticed by the lawyer. [4] On February 15, 1998, Sarauer died in motor vehicle accident. He was married to the respondent, Michelle Nadine Sarauer, and died intestate. [5] Michelle Nadine Sarauer did not present any evidence disputing the facts as set out on behalf of Rodh. She did, however, oppose the requested order. [6] It is accepted by counsel that if title to the property had issued in the names of Rodh and Sarauer as joint tenants, Rodh would have, as the joint survivor, become the sole owner. As the title presently stands an undivided one-half interest is owned by the Sarauer estate and pursuant to The Intestate Succession Act devolves to the respondent, Michelle Nadine Sarauer. [7] The relevant portions of The Land Titles Act are: s.87 judge of the Court of Queen’s Bench may, upon such notice as he deems fit or, where in his opinion the circumstances warrant without notice: (a) make vesting order and may direct the registrar to cancel the certificate of title to the lands affected and to issue new certificate of title in the name of the person in whom by the order the lands are vested; (b) direct the registrar to cancel any instrument or any memorandum or entry relating thereto or to amend any instrument or any memorandum or entry relating thereto in such manner as the judge deems necessary or property. s.251 No petition, order, affidavit, certificate, registration or other proceeding under this Act shall be invalid by reason of any informality or technical irregularity therein, or of any mistake not affecting the substantial justice of the proceedings. [8] Goldenberg J. in Bank of Nova Scotia v. Rochon et al (1985), 1985 CanLII 2497 (SK QB), 48 Sask. R. 232 (Q.B.) stated at page 234: It is well settled law that applications for vesting orders under s.87(a) of the Act should be made when (i) the facts are not in dispute, (ii) there is no question as to the right of the applicant to the relief sought, and (iii) there is no other available or reasonably convenient remedy or procedure for giving relief to the applicant. In Re Ralph Estate (1954), 1954 CanLII 152 (SK QB), 12 W.W.R. (N.S.) 40, affirmed at 245; In Re Weber Estate (1951), W.W.R. (N.S.) 41; and Re Yanow Estate (1956), 1956 CanLII 171 (SK QB), 20 W.W.R. (N.S.) 81. consider those principles to apply to an application under s.87(b) as well. [9] In McFee Cole Hotels Ltd. v. 604076 Saskatchewan Ltd. (1997), 1997 CanLII 11196 (SK QB), 154 Sask.R. 145 (Q.B.), McLellan J. summarized the position of the court when he stated in paragraph 26: It is clear that the authorities dealing with s.87 and s.251 have narrowly construed the discretion to amend or alter or cancel registrations under The Land Titles Act. The courts when applying the provisions must be mindful of the integrity of the Torrens Land Titles System. There must be an obvious mistake which requires rectification. [10] Is Rodh entitled to an order directing the registrar to cancel the existing title and to issue new one in the name of Rodh and Sarauer as joint tenants? [11] am satisfied that all of the relevant facts which are available are now before me. Based on those facts, I am also satisfied that Rodh and Sarauer intended to purchase the property as joint tenants and instructed their lawyer accordingly. Those instructions were confirmed by the lawyer in his affidavit. All of the documents prepared by the lawyer and signed by the parties describe the purchasers as joint tenants. The lawyer acknowledged that it was a mistake that the title issued as it did and that the mistake was not noticed by him when he reviewed the documents. Had the mistake been discovered before Sarauer’s accidental death, am satisfied, it would have been corrected. [12] Rodh has an alternate remedy. Not a remedy that would correct the mistake, but could provide compensation in the form of damages from the lawyer for any loss suffered as a result of the mistake. Damages in the circumstances of this case are not, in my opinion, a reasonably convenient remedy or procedure for giving relief. The title would remain registered in the names of strangers, neither of whom could be compelled to sell to the other. [13] The requirements set out in Bank of Nova Scotia v. Rochon, (supra) have been satisfied. On the facts of this case there has been an obvious mistake which requires rectification. The confidence of the public in the administration of justice and the Land Titles system would be in danger of being undermined if such obvious mistakes were not cured by the courts. [14] There will be an order that the Registrar of the Battleford Land Titles Office amend existing Certificate of Title #97B13424 containing a portion of SE¼ 27-47-26-W3M by inserting after the names of the registered owners, John Roman Sarauer and Maureen Janette Rodh the words, “as joint tenants”.

FIAT. The applicant sought an order pursuant to s.87 and s.251 of the Land Titles Act cancelling the existing certificate of Title in the names of the deceased and herself as tenants in common and directing the Land Titles Registrar to issue a new title in their joint names with right of survivorship. The deceased and applicant who had been living together purchased residential property in 1997. Their lawyer prepared a written agreement for the sellers and purchasers as well as the mortgage describing the purchasers as joint tenants. The sellers, unrepresented by legal counsel, prepared the transfer of the property and title issued without the words 'joint tenants'. The error describing the purchasers went unnoticed by their lawyer. The respondent had been married to the deceased when he died intestate in 1998. As the title stood an undivided one-half interest was owned by the estate and would devolve to the respondent pursuant to the Intestate Succession Act. HELD: The Land Titles Office Registrar was to amend the existing certificate of title by inserting 'joint tenants' after the names of the registered owners. 1)The requirements set out in Bank of Nova Scotia v. Rochon were satisfied. There was an obvious mistake which required rectification. The deceased and the applicant intended to purchase the property as joint tenants and instructed their lawyer accordingly. The lawyer acknowledged that it was a mistake that the title issued as it did. 2)Although the applicant had an alternate remedy of seeking damages for any loss from her conveyance lawyer, damages were not a reasonably convenient remedy in this case as title would remain registered in the names of strangers, neither of whom could be compelled to sell to the other.

d_1999canlii12945.txt

J. F.L.D. A.D. 1998 No. 275 J.C. Y. IN THE QUEEN`S BENCH (FAMILY LAW DIVISION) JUDICIAL CENTRE OF YORKTON BETWEEN: MICHELLE O'BRIEN and KEVIN O'BRIEN RESPONDENT Doreen K. Clark for the applicant No one appeared for the respondent JUDGMENT FOR PROVISIONAL ORDER MacLEOD J. October 16, 1998 [1] The applicant is the mother and has sole custody ofCynthia Kelsey O'Brien, born December 4, 1989, a child of theparties. By order dated June 7, 1996, the respondent, KevinO'Brien is required to pay $750.00 per month to the applicantas maintenance for the said child. [2] The applicant applies, pursuant to s. 17 of theDivorce Act, R.S.C. 1985, c. 3 (2nd Supp), to vary this orderand to obtain an order that the respondent provide maintenancein accordance with the Federal Child Support Guidelines(SOR/97-175). The applicant swears, inter alia, that "his income is at least $111,178.00 per year and can be imputed to be more", and further "from April 1, 1997 to March 31, 1998, the respondent's income was salary of $65,122.00 taxable income and $46,056.00 non-taxable income" and "he gets salary plus extra pay for working on commissions created by the government" and, finally, she expects he would earn income from other sources. [3] Her further affidavit shows that he receives annualgross rental income of $10,800.00 from which is to be deductedinsurance of $495.00, interest of $3,460.13, repairs andmaintenance of $1,644.00, property taxes of $462.00 andcapital cost allowance of $1,800.00, leaving a net income of$2,937.69. She does not believe the respondent should beallowed to deduct all of the interest or any of the capitalcost. However, it seems to me that these may be justifiable expenses, and take the net rental income to be $2,937.69. [4] For purposes of this order, it is declared that therespondent, Kevin O'Brien has been found to have a grossannual employment income of $63,500.70, a gross rental incomeof $2,937.69 and additional net income of $22,716.00 beingthat portion of his living allowance deemed to be income, fora total of $89,154.39. He shall pay to the petitioner,Michelle O'Brien, $754.19 per month for the support of CynthiaKelsey O'Brien, such payments to be made on the first day ofeach month, commencing (and being retroactive to) September 1,1998. [5] The respondent, Kevin O'Brien, shall also pay to thepetitioner, Michelle O'Brien, one-half of all extracurricularexpenses within 60 days of the time the petitioner provideshim with receipts therefor. [6] The respondent, Kevin O'Brien shall also pay to thepetitioner, Michelle O'Brien, one-half of all orthodontist'scosts, to the extent that the orthodontist's costs are notcovered by the dental plan of the petitioner, within 60 daysof the time the petitioner provides him with receipts forthese costs. [7] This order and the supporting material shall be transmitted in accordance with the requirements of s. 17(11) of the Divorce Act.

The mother who had sole custody of the nine year old applied pursuant to s17 of the Divorce Act to vary an order requiring the father to pay $750 as child support and to obtain an order for maintenance in accordance with the Federal Child Support Guidelines. The mother argued the father should not be allowed to deduct all of the interest or any of the capital cost associated with his rental income. HELD: 1)The father was to pay monthly child support of $754.19, retroactive to September 1/98. The father's annual net rental income of $2,937.69 and a portion of his living allowance deemed to be income were added to his gross annual employment income. 2)The father was to pay one-half of all extracurricular activities within 60 days of receiving the receipts and one half of orthodontist's costs to the extent they are not covered by the petitioner's dental plan.

d_1998canlii13765.txt

R.C. MILLS SUPREME COURT OF NOVA SCOTIA Citation: R. v. Chan, 2011 NSSC 455 Date: 20110928 Docket: CR. No. 334922 Registry: Halifax Between: Her Majesty the Queen -and- Joseph Endelle Chan Decision Judge: The Honourable Justice Robert W. Wright Heard: September 7, 2011 at Halifax, Nova Scotia Oral Decision: September 28, 2011 Written Decision Released: December 7, 2011 Counsel: Crown Counsel Chris Morris Defence Counsel Don Murray Wright, J., (Orally) [1] The accused is charged with 21 counts under an indictment dated September 1, 2010 consisting of one count of attempted murder, several charges pertaining to the unlawful possession and use of a firearm, and a number of status offences based on a pre-existing firearm prohibition order. The charges relate to events which occurred on April 8 and April 14, 2010 respectively. [2] This application is brought on behalf of the accused pursuant to s.591 of the Criminal code, the relevant sections of which read as follows: s. 591(1) Subject to section 589, any number of counts for any number of offences may be joined in the same indictment, but the counts shall be distinguished in the manner shown in Form 4. 591(3) The court may, where it is satisfied that the interests of justice so require, order (a) that the accused or defendant be tried separately on one or more of the counts. [3] The accused seeks severance of the 21 counts in the indictment on two bases which, if granted, would require three separate trials in all. The first proposed basis is the severance of the counts pertaining to the April 8th events from those pertaining to the April 14th events. The second basis for the proposed severance is to separate for trial all of the so-called status offences based on pre-existing firearm prohibition order (pertaining to the events of both April 8th and April 14th). [4] The factual background underlying these charges is set out in the voir dire decision being released today on the admissibility of the accused’s statement which was crafted broadly enough to serve as factual summary for this application as well (see 2011 NSSC 350 (CanLII)). It is therefore incorporated by reference in this decision. [5] The leading case providing guidance to trial judges hearing severance applications is R. v. Last, 2009 SCC 45 (CanLII). The Supreme Court of Canada stated at the outset of that decision that the Crown enjoys large discretion in deciding to include more than one count in an indictment and that on an application to sever multi-count indictment, the overarching criteria are the interests of justice. It is also clear from that decision that the burden rests upon the accused to persuade the court on balance of probabilities that severance is in the interests of justice. [6] The decision in Last further sets out concise summary of the legal principles to be applied when deciding severance application. That summary reads as follows (at paras. 16-18): 16. The ultimate question faced by trial judge in deciding whether to grant severance application is whether severance is required in the interests of justice, as per s. 591(3) of the Code. The interests of justice encompass the accused's right to be tried on the evidence admissible against him, as well as society's interest in seeing that justice is done in reasonably efficient and cost-effective manner. The obvious risk when counts are tried together is that the evidence admissible on one count will influence the verdict on an unrelated count. 17. Courts have given shape to the broad criteria established in s. 591(3) and have identified factors that can be weighed when deciding whether to sever or not. The weighing exercise ensures that reasonable balance is struck between the risk of prejudice to the accused and the public interest in single trial. It is important to recall that the interests of justice often call for joint trial. Litchfield, where the Crown was prevented from arguing the case properly because of an unjudicial severance order, is but one such example. Severance can impair not only efficiency but the truth-seeking function of the trial. 18. The factors identified by the courts are not exhaustive. They simply help capture how the interests of justice may be served in particular case, avoiding an injustice. Factors courts rightly use include: the general prejudice to the accused; the legal and factual nexus between the counts; the complexity of the evidence; whether the accused intends to testify on one count but not another; the possibility of inconsistent verdicts; the desire to avoid multiplicity of proceedings; the use of similar fact evidence at trial; the length of the trial having regard to the evidence to be called; the potential prejudice to the accused with respect to the right to be tried within reasonable time; and the existence of antagonistic defences as between co-accused persons [7] Defence counsel has predicated his submissions on the proposition that the Crown has combined all the counts in one indictment to gain two strategic advantages, namely, to improve its evidentiary position because of the unproven connection of possession of the gun on both days in question, and also to be able to cross-examine the accused on the events of April 8th if he should decide he wishes to testify on the events of April 14th. Defence counsel argues that this strategy works unfairly to the accused, necessitating an evaluation of the relevant factors set out in Last. [8] Not all of those factors will apply, of course, in every case depending on their individual facts. Nor is any one particular factor to be determinative of the outcome of the application. Rather, the court must engage in weighing exercise of all the relevant factors in deciding whether or not severance is required in the interests of justice. [9] In the present case, defence counsel argues that there are three particular factors of importance that militate in favour of severance. They are: (a) the absence of true nexus between the counts; (b) the complexity of the evidence and the length of the trial having regard to the evidence to be called; and (c) the potential of the accused deciding to testify on one set of counts (i.e., those pertaining to the events of April 14th) but not the others (i.e., those pertaining to the events of April 8th). [10] As to the first of these factors, defence counsel portrays the events of April 8th and 14th as two separate transactions having little legal or factual nexus. It is argued that the issues are different (identity on the former, and knowledge and control of the gun on the latter) and that there is no common evidence. The only possible link conceded is the firearm which assumes an unproven connection of possession of the gun on both days. [11] The Crown, on the other hand, views the two events as very much related. The court has been made aware that the Crown has in the wings ballistics report containing expert opinion evidence that match has been made between the gun used in the April 8th shooting and that found by the arresting police officers on April 14th. The Crown sees both temporal and continuity nexus between these two events from which the court may draw inferences as may be appropriate. The Crown also points out that the videotaped statement to police (which the court has since decided to be admissible) is common piece of evidence to both events. [12] What the court will be required to decide in this case, on the requisite standard of proof beyond reasonable doubt, is whether the accused was in legal possession of the gun when it was found on April 14th and whether it was the accused who fired that gun on April 8th. It is acknowledged by defence counsel that even if these two sets charges were severed, evidence that the gun was recovered near the spot where the accused was arrested would be admissible on prosecution of April 8th events if it supported an inference that the accused was in possession of that firearm on April 14th. If found guilty of possession in relation to that date, certainly the evidence would be admissible. If the accused was found not guilty of possession of the firearm on April 14th, defence counsel says that the Crown would then not be able to rely upon the evidence of proximity on April 14th to support the inference of its use on April 8th. [13] Defence counsel goes on to argue that on prosecution of the April 14th charges, whatever use was made of the firearm on April 8th would not touch on who might have had knowledge and control of it on April 14th. He contends that the charges from April 14th should be tried first to test the accused’s connection to the gun before it can be used to support any inferences in respect of the charges from the shooting on April 8th. [14] recognize that just because multiple offences are committed close in time, or just because offences involve behaviour that could be admissible in proof of some issue at the trial of another offence, does not necessarily justify having joinder of all counts to be heard at the same time. As noted in Last (at para. 16) above quoted, the ultimate question faced by trial judge in deciding whether to grant severance application is whether severance is required in the interests of justice. The interests of justice encompass the accused’s right to be tried on the evidence admissible against him. [15] I am not persuaded that the Crown should be limited in the presentation of its evidence through a severance of counts because of the tenuous nexus between the two events. It is to be remembered that the mode of trial selected here is judge alone which negates the spectre of improper inferences being drawn, were this case to be heard by a jury. Although it is recognized that having all counts heard together does assist the evidentiary position of the Crown, in my view it does not do so in prejudicial way, in the legal sense, to the accused’s right to fair trial. [16] As to the second factor, this case has been set down for trial for period of 10 days. It is anticipated by defence counsel that if the counts were severed as proposed, no extra court time would be required because the trials pertaining to the events of April 8th and 14th respectively could be conducted back-to-back in the current time slot. In his submission, there would be no injustice in requiring the Crown to prove the April 14th firearm possession charges first, which would ensure that the Crown evidence to be presented on the April 8th charges is fair and legitimate. [17] Apart from the fact that it is generally the Crown’s place to decide the order of the prosecutions, do not share the optimism that severed trials could be completed within the 10 day allotment. In my view, it would be more efficient and cost effective to have all the counts tried together and further delay would thereby be avoided while the accused is in custody. [18] It is the third factor relied on by the defence that gives more pause to the court. Defence counsel has explained the rationale for this argument by setting out reasons whereby the accused might want to testify with respect to the events of April 14th but not in respect of the events of April 8th. It is argued that it would be unjust for the accused to be placed in the position of wanting to testify with respect to the April 14th counts and thereby be exposed to cross-examination on the charges pertaining to April 8th. [19] The law on the application of this factor is set out in Last at paras. 25. In assessing the accused's testimonial intention on severance application the underlying concern is for the accused's ability to control his defence, and, more specifically, his right to decide whether or not to testify with respect to each of the counts unimpaired by inappropriate constraints. 26. Both the Crown and the defence submit that the accused's intention should be objectively justifiable. This requirement is, indeed, threshold. The accused's expression should have both subjective and an objective component. However, while formulaic expression of subjective intention is not sufficient in and of itself to discharge the accused's burden to have the counts severed, the trial judge should not substitute his or her own view for that of the accused and determine that the accused should testify or not. Rather, the trial judge must simply satisfy him- or herself that the circumstances objectively establish rationale for testifying on some counts but not others. The burden on the accused is to provide the trial judge with sufficient information to convey that, objectively, there is substance to his testimonial intention. The information could consist of the type of potential defences open to the accused or the nature of his testimony: Cross, at p. 421. However, the accused is not bound by his stated intention; he remains free to control his defence, as the case unfolds, in manner he deems appropriate. 27. While an accused's provisional intention with respect to testifying is certainly consideration which should be given significant weight, it is but one factor to be balanced with all the others. An accused's stated and objectively justifiable intention to testify on some but not all counts is not necessarily determinative of severance application. It can be counterbalanced by other circumstances that the judge finds may prevent the accused from testifying, or be outweighed by factors that demonstrate that the interests of justice require joint trial. [20] In the present case the court has had the benefit of watching two hour videotaped interview of the accused conducted by the police in the early morning hours of April 15, 2010. In that interview, the accused adamantly disclaimed any association with the subject handgun whatsoever. He maintains that the gun was not his and that he had nothing to do with its possession or use either on April 8th or the 14th. [21] This disclaimer is indicative, in my view, that the accused’s decision whether to testify would more likely than not be the same in relation to both sets of counts. In the final analysis, conclude that although defence counsel has demonstrated that the prospect of the accused wanting to testify on one set of counts and not the other is objectively justifiable, the significance of that factor is lessened because of the likelihood that his testimonial intention will not differ between the two sets of counts (as was the situation in Last). [22] When that attenuated factor is balanced with all the others, including the interest in avoiding multiplicity of proceedings over potentially related events and the efficient use of judicial resources by having one trial, am drawn to the conclusion that the accused has not discharged the burden of persuasion that severance is required in the interests of justice. In my view, the accused’s fair trial rights will not be impinged by reason of all counts being tried together and it is on that platform that the truth seeking function of the court will be better served. [23] Likewise, decline to order severance of the status offences listed in the indictment. Defence counsel argues that proof of those offences requires evidence of the accused’s prior criminal activity which would be prejudicial to him and which the court need not know about. [24] If this were to be trial by jury, severance on that basis would be appropriate because of the risk of propensity reasoning by the trier of fact. There is no such risk of propensity reasoning in judge alone mode of trial and the court will not countenance otherwise. [25] For all of the foregoing reasons, this application for severance is dismissed on both the bases proposed.

The accused, who was charged with 21 counts under one indictment relating to events on two separate dates, applied to have the counts severed. First, on the basis of the dates of the occurrences and, secondly, to separate the so-called 'status offences' based on a pre-existing firearm prohibition order. It was argued the Crown had combined all the counts into one indictment to improve its evidentiary position with regard to the unproven connection of possession of the gun on the two separate dates and to be able to cross-examine the accused on the events of both days should he choose to only testify on the events of one day. The Crown argued that expert evidence showing a match between the gun used in the shooting on the first date and that found by the arresting officers on the second date showed a temporal and continuity nexus between the two events. The accused's videotaped statement to the police was also a common piece of evidence to both dates. Application for severance dismissed. The most significant issue was the possibility of the accused being subject to cross-examination for events of both days if he chose to testify only concerning the events of one day but his position that he had no association with the gun and that it was not in his possession on either day indicated that his decision on whether to testify would most likely be the same in relation to both sets of counts and, given that there was no jury involved, there was no risk of improper inferences being drawn. The Crown should not be limited in the presentation of its evidence through a severance of counts because of the tenuous nexus between the two events.

2011nssc455.txt

J. Dated: 19991110 Docket: 7840 THE COURT OF APPEAL FOR SASKATCHEWAN Coram: Cameron Sherstobitoff JJ.A. and Wimmer J. (ad hoc) PETER GARY STONECHILD and HER MAJESTY THE QUEEN COUNSEL: Mr. E. Neufeld, Q.C. for the Crown Mr. S. Beckie for the Appellant DISPOSITION: On Appeal From: Provincial Court Appeal Heard: November 10, 1999 Appeal Allowed: November 10, 1999 (orally) Written Reasons: November 17, 1999 Reasons By: The Honourable Mr. Justice Sherstobitoff In Concurrence: The Honourable Mr. Justice Cameron The Honourable Mr. Justice Wimmer (ad hoc) SHERSTOBITOFF J.A. (orally) [1] This appeal against sentence must be allowed. The offence is breach of a recognizance made under the authority of s. 810.1 of the Criminal Code, the purpose of which is to prevent further sexual offences against persons under the age of 14 years. The breach consisted in violation of term of the recognizance which prohibited the appellant from consuming alcohol. The Crown admitted that there was no nexus between consumption of alcohol on the part of the appellant and his propensity to paedophilia. In these circumstances, while we agree that a period of probation is an appropriate penalty for his offence, the inclusion of the term which prohibits him from consuming alcohol is inappropriate since it had no relation to the purpose of the original recognizance, and does not have, as far as we can see, any other purpose. Furthermore, the term of the period of probation, three years, is out of all proportion to the nature of the offence. [2] The sentence is varied by reducing the term of probation to one year and by deleting the provisions concerning possession and consumption of alcohol, entry into premises where alcohol is sold and consumed, and submission to breath or blood testing.

An appeal of a sentence for a breach of recognizance made under s.810.1 of the Criminal Code, the purpose of which is to prevent further sexual offences against persons under the age of 14 years. HELD: The sentence was varied by reducing the term of probation to 1 year and by deleting the provisions concerning possession and consumption of alcohol, entry into premises where alcohol is sold and consumed, and submission to breath or blood testing. A period of probation was appropriate but 3 years was out of proportion to the nature of the offence. The inclusion of a term prohibiting him from consuming alcohol was inappropriate since it had no relation to the purpose of the original recognizance.

4_1999canlii12373.txt

J. 2000 SKQB 53 Q.B. A.D. 1999 No. 806 J.C. S. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF SASKATOON BETWEEN: LUIZ FERNANDO KAPRONCZAI and ELSA SAN DIEGO o/a SAN DIEGO CARE HOME and GEORGE DAVID JABOUR and VICTORIA ANN JABOUR RESPONDENTS Tyler Bond for Luiz Fernando Kapronczai Elsa San Diego and George David Jabour and Victoria Ann Jabour on their own behalf. JUDGMENT ARMSTRONG J. February 4, 2000 [1] This is an appeal from a decision in the Provincial Court on a Small Claim. It involves the question of whether something that is affixed to the realty is fixture that passes with title to the realty. [2] In this case, respondents (third parties at trial), George David Jabour and Victoria Ann Jabour (the "Jabours"),acquired title to house property and caused to be affixed to the property firmly bolted by use of anchor bolts in concrete slab poured for that purpose wheelchair lift loaned to the Jabours by the Saskatchewan Abilities Council (the "Abilities Council") for use of their disabled foster child. [3] The Jabours sold to Tania Kapronczai ("Tania") then wife of the defendant, Luiz Fernando Kapronczai ("Kapronczai"). Tania also had disabled child. The title was transferred to both Tania and Kapronczai. Neither Tania nor Kapronczai made arrangements with the Abilities Council but simply took title to the house property with the wheelchair lift attached to the concrete pad and operated by electric power from the house. [4] Then two years later Tania and Kapronczai sold the property to the respondent, Elsa San Diego ("San Diego"). The vendors advertised the property as being good revenue care home wheelchair accessible. When selling the property, the vendors made no mention to the purchaser, the respondent San Diego, about ownership of the wheelchair lift. [5] few months after San Diego acquired the house property, the wheelchair lift ceased to operate. San Diego was told to get in touch with the Abilities Council the name of which was displayed on the wheelchair lift and did so. The Abilities Council said that the wheelchair lift belonged to it. The Abilities Council apparently loans chair lifts such as this to families who have disabled member. The Abilities Council wanted the wheelchair lift back but San Diego negotiated purchase of the lift at a depreciated value for a total of $2,769.29 for which she sued Tania and Kapronczai and for which she got judgment. [6] Kapronczai joined the Jabours as third parties claiming over against them for the claim made by San Diego. [7] Tania did not appear at the trial in Small Claims Court. Neither has Tania appealed the decision. At trial, the defendant, Kapronczai, claimed not to have known that the wheelchair lift belonged to the Abilities Council and to never have been informed of such. The Jabours testified that Tania had been told about the Abilities Council's ownership of the wheelchair lift. The trial judge did not accept Kapronczai's denial that he and Tania knew that the wheelchair lift was not part of the realty or was owned by the Abilities Council. There was evidence on which the trial judge could find as he did. [8] As between the Jabours and the Abilities Council, the wheelchair lift never became part of the realty notwithstanding how it was affixed to the realty. It was not the intention of either party that it become part of the realty and the intention of the parties is a prime factor in determining whether something affixed to the realty becomes a part of the realty. Furthermore, although it was not a finding of the trial judge the manner of attaching the wheelchair lift, i.e. only to the concrete slab, arguably showed an intention that it not be permanent and a part of the property. [9] Kapronczai, relies on s. 237(2) of The Land Titles Act, R.S.S. 1978, c. L-5, and says that even if he did know that the wheelchair lift belonged to the Abilities Council there was nothing on the title indicating the Abilities Council had any interest in the land in question. [10] The Land Titles Act (the "Act") section in question reads: 237(2) person contracting or dealing with or taking or proposing to take transfer, mortgage, encumbrance, lease or other interest from an owner is not, except in the case of fraud by that person: (a) bound or concerned, for the purpose of obtaining priority over trust or other interest that is not registered by instrument or is not caveated, to inquire into or ascertain the circumstances in or the consideration for which the owner or any previous owner of the interest acquired the interest or to see to the application of the purchase money or any part of the purchase money; or (b) affected by the notice, direct, implied or constructive, of any trust or other interest in the land that is not registered or caveated, any rule of law or equity to the contrary notwithstanding. [Emphasis added] [11] This section of the Act protects purchaser of realty against an unregistered interest in that realty. "Interest" is defined in s. 237(1)(a) as "any estate or interest in land". It is not intended to protect the purchaser of realty to which something is affixed that is not intended, to the knowledge of the purchaser, to be part of the realty. The Abilities Council did not have an interest in the realty that it needed to protect by notice on the title, or risk losing it, at least as against Tania and Kapronczai who had knowledge of the facts according to the trial judge. [12] The defendants purported to sell that which was not theirs to sell which, in my view, gives San Diego claim for damages to which they were found entitled by the Provincial Court Judge. And the Provincial Court Judge at the same time dismissed the claim against the third party, the Jabours, on the facts as found by the Provincial Court Judge. [13] In the circumstances, the appeal is dismissed both as it affects the plaintiff and the third party.

An appeal from Provincial Court on a Small Claim. The Jabours, the third parties who acquired title to the house, firmly bolted a wheelchair lift loaned to them by the Abilities Council by anchor bolts in a concrete slab. The Jabours sold to the Kapronczais who in turn sold the property 2 years later to the respondent, San Diego, but made no mention about ownership of the wheelchair lift. The lift ceased to operate and San Diego contacted the Abilities Council which claimed ownership to the lift. San Diego was awarded judgment for the depreciated value against Kapronczai who joined the Jabours as third parties claiming over against them for the San Diego claim. HELD: The appeal was dismissed against the plaintiff and the third party. 1)The wheelchair lift never became part of the realty notwithstanding how it was affixed. It was not the intention of either party that it become part of the realty. The intention of the parties is a prime factor in determining whether something is affixed to and becomes part of the realty. 2)The manner of attaching the lift only to the concrete slab arguably showed an intention that it not be permanent and part of the property. 3)Section 237(2) of the Land Titles Act protects a purchaser of realty against an unregistered interest in that realty. Interest is defined in s.237(1)(a)as any estate or interest in land. It is not intended to protect the purchaser of realty to which something is affixed that is not intended to the knowledge of the purchaser to be part of the realty. The defendants purported to sell that which was not theirs giving a claim for damages. The Provincial Court judge dismissed the claim against the third party, the Jabours, on the facts.

2_2000skqb53.txt

TBB/jmj 2003 SKQB 197 Q.B.G. A.D. 1999 No. 3748 J.C. R. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF REGINA BETWEEN: LYNNE PALMER-JOHNSON and MICHAEL TOCHOR, E. F. ANTHONY MERCHANT MERCHANT LAW LINE REFERRAL INC. DEFENDANTS Lynne Palmer-Johnson representing herself Alan G. McIntyre for the defendants JUDGMENT ZARZECZNY J. April 25, 2003 NON-SUIT APPLICATION [1] After the completion of the plaintiff’s case in this civil trial by judge and jury, counsel for the defendants presented this motion for non-suit pursuant to Rule 278A of The Queen’s Bench Rules. That rule provides as follows: 278A At the close of the plaintiff’s case the defendant may, without being called upon to elect whether he will call evidence, move for dismissal of the action. BACKGROUND CIRCUMSTANCES [2] This case involves a professional negligence claim being advanced by the plaintiff against her former solicitors, Michael Tochor and E. F. Anthony (Tony) Merchant (as well as a related corporate defendant). [3] The defendants were engaged and retained to represent and defend the plaintiff as her lawyers in respect of four charges laid by the College of Physicians and Surgeons against her; three charges alleging that she engaged in the practice of medicine and one charge that she provided medical treatment not being registered under The Medical Professions Act, 1981, S.S. 1980-81, c. M-l0.1, contrary to s. 80 of that Act (the “charges”). The Information was sworn and dated June 1, 1995. The defendant, Michael Tochor primarily undertook her defence. The trial took place in 1997 and on January 21, 1998, Provincial Court Judge Bekolay rendered written judgment finding the plaintiff accused guilty upon all four charges. fine of $1,500.00 was imposed in respect of each count to total of $6,000.00. [4] After this verdict the plaintiff discharged her solicitors and thereafter, as self-represented appellant, appealed the Provincial Court judgment to the Court of Queen’s Bench, the Court of Appeal and ultimately she sought leave to appeal to the Supreme Court of Canada, all appeals and applications being dismissed. She then commenced this action against her solicitors for negligence. She elected trial by judge and jury and to be self-represented. This trial began April 21, 2003. [5] The plaintiff’s Statement of Claim alleges various particulars of negligence and unprofessional conduct against the defendant lawyers. It claims that as result of these actions the plaintiff “was convicted improperly” (paragraph of the Statement of Claim). Particulars of negligence were set out in paragraph of the claim and the plaintiff sought to support these by the evidence that she and her husband, together with number of other witnesses gave at the trial. [6] The particulars of negligence the plaintiff pleaded against the defendants and which she sought to prove at the trial are principally as follows: (a) Allegations that the defendant Tochor failed to call witnesses at the plaintiff’s trial referred to him by the plaintiff and which the plaintiff considers could have provided evidence at the trial helpful to her case; (b) That the defendant Tochor failed to adequately or competently cross-examine the principal witness for the College of Physicians and Surgeons namely, Ms. Karen Clinton-Walker to impugn her character or credibility and failed to call available witnesses to do so; (c) That the defendant Tochor failed to submit written argument to the Provincial Court; (d) That Mr. Merchant undertook to personally handle the plaintiff’s case and in breach of that retainer/agreement assigned the matter to Mr. Tochor. [7] In respect of item (c) the evidence is clear that written argument was filed with the Provincial Court from the record of that Court’s proceedings notwithstanding the plaintiff some years later could not find copy on the Provincial Court file. The plaintiff still does not accept the clear and obvious evidence of its filing. The Statement of Claim does not plead breach of contract against Mr. Merchant in respect of item (d) above. If, read in its widest sense, the Statement of Claim can be taken to allege negligence on Mr. Merchant’s part for assigning the case to Mr. Tochor or that Mr. Merchant, having accepted the engagement, is vicariously or jointly liable for Mr. Tochor’s negligence, that claim falls to be determined upon this non-suit application upon the same analysis as applies generally to the claims of negligence against Mr. Tochor. [8] At the trial the plaintiff and her husband testified as did number of other non-related witnesses. Their testimony focussed upon the nature of the plaintiff’s consultative business giving rise ultimately to the charges against her. number of witnesses were called who were familiar with Ms. Palmer-Johnson’s work and the nature of the services which she provided to them or their immediate relatives. Ms. Palmer-Johnson testified that she brought these witnesses to the attention of Mr. Tochor prior to her trial and advised him of their availability to “witness for her” and what they could say. She testified that none of the witnesses were called or interviewed by the defendants prior to the trial nor were they called as witnesses at the trial. [9] The College of Physicians and Surgeons called only one witness in its prosecution of the charges against Ms. Palmer-Johnson namely, Ms. Walker. Mr. Pat O’Byrne, Ms. Walker’s former probation officer testified at this trial that she had lengthy criminal record and that in his dealings with her he found her to be untruthful on number of occasions. The plaintiff testified that his information and the availability of this witness was brought to the attention of Mr. Tochor as was his availability to give evidence at the original trial. Mr. O’Byrne was not contacted by nor did Mr. Tochor call him to testify at trial. It is these matters along with Mr. Merchant’s failure to personally conduct Ms. Palmer-Johnson’s defence that constituted, in the main, the substantive basis for the plaintiff’s negligence claim against the defendants. NON-SUIT TEST [10] The test to be applied by this Court in adjudicating upon an application for non-suit in the circumstances was recently addressed by the Saskatchewan Court of Appeal in the case of Reid v. Kraus et al., 2000 SKCA 32 (CanLII), (2000), 189 Sask. R. 122. That case was, as is the one presently before the Court, claim of negligence by plaintiff against his solicitors tried by judge and jury. The decision of the trial judge to grant the non-suit was appealed and at para. 13 of the Appeal Court decision the following statement of the test for non-suit is set out: [13] am satisfied the defendant correctly interpreted the test. In Jacques v. The City of Regina (1998) Q.B. 3874/1993 (unreported) Armstrong J. stated the test another way at p. 4: “The test for non-suit is not ‘any evidence’ but ‘sufficient evidence’ and this has been the test since sometime in the Nineteenth Century. See Cross on Evidence, 5th Edition, page 77, where he is dealing with withdrawal of an issue from the Jury.” At para. 12, p. 125 of Reid, the Court of Appeal quotes with acceptance and approval the statement of the non-suit test articulated in Re/Max Crown Real Estate Ltd. v. Ries Estate (1996), 1996 CanLII 7093 (SK QB), 143 Sask. R. 120 at 123 (Q.B.): ... [T]he test in determining an application of this nature is whether there is any evidence, if left uncontradicted, to satisfy reasonable person.... [12] The matter is further addressed as follows at paras. 17 and 18 of the Reid decision, supra: [17] The record discloses evidence, which if left uncontradicted, upon which reasonable jury (i.e. trier of fact) properly instructed, could find negligence and causal connection between that negligence and the alleged injury and consequent damages. [18] The trial judge by weighing the evidence and deciding the substantive issue of causation, applied the higher test of the balance of probabilities rather than the lower standard for non-suit. The plaintiff’s argument is persuasive and must prevail. [13] The Nova Scotia Court of Appeal had occasion to consider and apply this test for non-suit in negligence case against lawyer in the case of Barrett v. Reynolds (1994), 30 C.P.C. (3d) 383 at 388. At para. 13 of this judgment the court put the matter in this way: 13 The trial judge in this case erred by concluding that the appellants had not established prima facie case on the evidence. The issue before him on the motion for nonsuit was whether there was duty of care owed by the respondent to the appellants and, if so, whether it was breached and caused the appellants to suffer damage. The standard of care is that expected of reasonably competent solicitor. If the plaintiff presented evidence from which inferences could be drawn that there was duty of care, that the standard of care had not been met and that damages resulted, the motion should have been denied.... LACK OF EXPERT EVIDENCE [14] The plaintiff did not present any witness to be qualified as an expert to provide opinion evidence to the jury either with respect to the standard of care imposed upon lawyers undertaking the task of representing a client in her circumstances nor with respect to the application and alleged breach of that duty of care by the defendants. No expert opinion evidence was presented by the plaintiff with respect to causation, that is, whether or not it was more probable than not that had the defendants not breached their duty of care to the plaintiff, as she claims, the results of the proceedings at the original trial would have been different, namely, an acquittal, on one or more of the charges. These three issues namely, (1) the standard and duty of care, (2) the breach of the standard and duty of care and (3) causation are fundamental to this trial and the plaintiff’s claims. The latter two would be the main issues which the jury would have to decide in this case. [15] There is no evidence that has been presented by the plaintiff in respect of these fundamental legal issues to assist the jury in respect of their prospective deliberations and ultimate verdict in this case. [16] It is well settled that the issue of the standard of care that is applicable in professional negligence cases is question of law and to that extent it is the responsibility of the trial judge to articulate that standard as part of the judge’s charge to the jury. Nevertheless, simple articulation of the standard of care in professional negligence case such as this may well be meaningless or at best inadequate to assist in the jury’s task without some expert opinion to explain what the standard requires and how it applies to the work of these trial lawyers. [17] The plaintiff’s claim, and the evidence she did present at this trial, deals with the very complicated and difficult issue of the duty of care owed and the breach of that duty by the defendant lawyers in respect of the preparation for and conduct of the plaintiff’s trial in what is known as prosecution for quasi-criminal statutory offence(s). The first threshold issue to be considered and answered by the jury will be whether or not any of the defendants breached their professional duty of care to the plaintiff. This necessarily involves consideration by the jury of the professional judgment exercised by the defendants in choosing to contact and/or call witnesses available to the plaintiff to testify for her and the legal admissibility of their evidence at the trial. As well the advisability of calling their evidence needs to be carefully considered. Sometimes witness may have some beneficial evidence to give but may be expected, on cross-examination, to proffer evidence highly prejudicial to the case. The judgment exercised by the defendants with respect to the identification of legal issues likely to be raised at the trial, the appropriate strategy to address those legal issues and the judgments and decisions taken in pursuit of that strategy all are complex and important professional judgments to be made by the trial lawyer. These factors and more are all matters in respect of which the plaintiff has called no expert evidence. The jury therefore has no evidence upon which they could possibly render competent verdict upon the disparate facts relied upon by the plaintiff in the evidence that she has presented. [18] The same is true with respect to the question of causation. If the jury would be competent to find that the defendants were negligent the jury would then have to decide whether that negligence caused the plaintiff to be convicted on one or more of the charges. Alternatively stated they would have to decide, had the defendants not been negligent, was it more probable than not that the plaintiff would have been acquitted of one or more of the charges. Once again, there is no expert evidence that has been presented by the plaintiff to the jury to provide the jury with the competence to reach conclusion on this second most fundamental issue in this case. [19] The Supreme Court of Canada had occasion to consider these issues in the case of ter Neuzen v. Korn (1995), 1995 CanLII 72 (SCC), 127 D.L.R. (4th) 577. [20] That case concerned the trial of professional negligence claim advanced by plaintiff against medical specialist physician in respect of an HIV infection which the plaintiff contracted as result of an artificial insemination procedure conducted by the defendant. In its analysis of the trial judge’s handling of the issue of professional negligence in his instructions to the jury, the majority of the Supreme Court concluded as follows at p. 588 of its judgment: [32] In order to properly address the issues relating to professional negligence, it is useful to consider what were the matters which the jury was obliged to decide. In each aspect of the claim the jury was bound to consider whether the evidence established that standard of practice existed. If the answer was in the affirmative, the next question was whether the defendant conformed to that practice. An affirmative answer to this question would result in finding of no negligence in favour of the respondent unless the jury was entitled to consider and hold that the standard practice was itself below the required legal standard and that conduct below that standard constituted negligence. Similarly, if the jury found that no standard practice was established by the evidence, the appellant would have failed to prove her case unless the jury was entitled to fix the standard without the necessity of expert evidence .... [Emphasis added] [21] Having identified this issue the court proceeded with the following analysis at p. 590: [36] The appellant, therefore, can only support favourable finding on this aspect of the case on the basis that the jury was entitled to find that the standard established by the evidence itself departed from that of prudent and diligent physician and that the respondent, in failing to conform with higher standard, was guilty of negligence. This raises the issue as to the correctness of the trial judge’s charge to the jury to the effect that the jury was so entitled. [37] With respect to the second aspect of the claim in professional negligence, the Court of Appeal considered that verdict for the appellant was open to the jury. It is, however, by no means clear that the evidence establishes standard practice with respect to the screening and follow-up of donors. This was matter for the jury to determine. If the jury found that the evidence fell short of establishing the existence of standard practice, the question arises as to whether the jury could determine the applicable standard without the aid of expert evidence. This is legal issue upon which the Court of Appeal did not pronounce but which is closely related to the issue raised by the trial judge’s instruction referred to above. [38] It is generally accepted that when doctor acts in accordance with recognized and respectable practice of the profession, he or she will not be found to be negligent. This is because courts do not ordinarily have the expertise to tell professionals that they are not behaving appropriately in their field.... [22] The court went on to consider the issue of what evidence needs to be presented in order to support finding of professional negligence by jury. The court quotes Professor John G. Fleming at p. 110 of his publication, The Law of Torts, 7th ed. (Sidney: Law Book Co., 1987), at p. 591 in part, as follows: ... [C]ourts have resorted to the safeguard of insisting that negligence in diagnosis and treatment (including disclosure of risks) cannot ordinarily be established without the aid of expert testimony .... [23] At pp. 592 and 593, paras. 43 and 44, the Supreme Court observes and concludes as follows: ... The question that remains is under what circumstances will professional standard practice be judged negligent? It seems that it is only where the practice does not conform with basic care which is easily understood by the ordinary person who has no particular expertise in the practices of the profession. That is, as Professor Fleming suggests, where the common practice is fraught with danger, judge or jury may find that the practice is itself negligent. [44] As was observed in Lapointe, courts should not involve themselves in resolving scientific disputes which require the expertise of the profession. Courts and juries do not have the necessary expertise to assess technical matters relating to the diagnosis or treatment of patients. Where common and accepted course of conduct is adopted based on the specialized and technical expertise of professionals, it is unsatisfactory for finder of fact to conclude that such standard was inherently negligent. On the other hand, matters falling within the ordinary common sense of juries can be judged to be negligent. [Emphasis added] [24] The Supreme Court’s discussions at pp. 593-97 [paras. 45-58] of the ter Neuzen judgment provides ample illustration of the kinds of circumstances in which jury would be competent to render verdict in respect of professional negligence claim by the use of “ordinary common sense” as opposed to expert evidence. At p. 594 the court commented upon statements of Coyne J.A. in the case of Anderson v. Chasney, 1949 CanLII 236 (MB CA), [1949] D.L.R. 71 (Man. C.A.). That case involved claim by plaintiff of medical negligence against doctor performing surgery who left surgical sponge in his patient. After commenting that this is the kind of medical negligence case in which jury would be competent to apply ordinary common sense without the necessity of relying upon expert evidence, the court in ter Neuzen observed as follows: [49] As well, Coyne J.A. emphasized that the case involved no difficult or uncertain questions of medical or surgical treatment nor any matters of scientific or highly technical character. It was simply matter of whether obvious and simple precautions, easily understood by ordinary individuals, were required to be taken.... [25] At p. 595 the court concludes: [51] conclude from the foregoing that, as general rule, where procedure involves difficult or uncertain questions of medical treatment or complex, scientific or highly technical matters that are beyond the ordinary experience and understanding of judge or jury, it will not be open to find standard medical practice negligent. On the other hand, as an exception to the general rule, if standard practice fails to adopt obvious and reasonable precautions which are readily apparent to the ordinary finder of fact, then it is no excuse for practitioner to claim that he or she was merely conforming to such negligent common practice. [52] The question as to whether the trier of fact can find that standard practice is itself negligent is question of law to be determined by the trial judge irrespective of the mode of trial.... [26] At p. 596 the position is summarized for the majority of the court as follows: ... If the alleged act or acts of negligence are such that the jury could reject expert evidence as to standard practice and set the appropriate standard without reliance on expert evidence, then it can do precisely that where the expert evidence fails to establish standard practice. In either case, the basic question is whether the nature of the issue can be decided on the basis of the ordinary knowledge possessed by the jury or, on the contrary, the matter requires expert evidence because it is beyond the ken of the average juror.... [Emphasis added] [27] Finally, at p. 597 the court concludes: [58] In light of this characterization, agree with the conclusion reached by the Court of Appeal that with respect to the first aspect of the case the question of the standard of care was not one which the jury could decide without the aid of expert evidence.... As have pointed out above, the Court of Appeal correctly held that finding of negligence on this branch of the case would not be supportable in that it was not finding which jury acting judicially could make.... [Emphasis added] [28] The Supreme Court recognized in ter Neuzen that the issue of whether or not the professional negligence claimed is within or beyond the competence of jury to decide without expert evidence is question of law that it is the trial judge’s responsibility to decide. In this case, it is decision to be made in the context of this non-suit motion. [29] In considering this question have considered the recently released decision of the Saskatchewan Court of Appeal in the case of Hagblom v. Henderson and Campbell, 2003 SKCA 40 (CanLII), 2003 SKCA 040. In that case the court had to consider whether or not claim for professional negligence against two lawyers for failing to call an available expert witness to testify at the original civil trial of the plaintiff constituted negligence. The court concluded that it did and further concluded that but for this negligence it was more probable than not that the plaintiff would have succeeded at his original trial. While not on all fours with the issue which must decide upon this application nevertheless, this case recognizes the importance of calling expert evidence at trial where the issue involved is matter beyond the ordinary competence of the trier of fact to decide, in that case, the trial judge. [30] In the case at bar, the evidence presented by the plaintiff in respect of the particulars of the defendant lawyers’ negligence raises issues of legal judgment and tactics respecting the conduct of the plaintiff’s case both in preparation for and at the trial. The issues raised involve substantial legal expertise and judgment including knowledge of the legal rules of admissibility respecting the evidence of witnesses, the identification of an appropriate defence strategy, the judgments and decisions that are appropriate to the pursuit of that strategy as well as the other matters previously outlined. [31] These matters are beyond the competence of jury to decide based upon ordinary common sense and experience. In the absence of the presentation of opinion evidence on these matters by an expert qualified by the Court to give the required evidence there is no evidence upon which the jury could decide the two fundamental issues which are raised by this case which must be referred to the jury for decision by them namely; whether the standard of care which they are instructed to apply in the circumstances of the case was breached by the defendant lawyers and secondly whether that breach caused the plaintiff, more probably than not, to lose an acquittal upon one or more of the charges upon which she was convicted at the original trial. [32] Simply put the calling of legal expert to provide these required opinions in this case was not matter of convenience or choice for this plaintiff—it is necessity. The consequence of not doing so cannot be overcome by any other efforts whether they be other evidence, argument or judicial instruction to the jury. [33] It is appropriate for me at this stage to make comment with respect to the position of Ms. Palmer-Johnson as self-represented plaintiff in connection with this issue of the necessity of calling expert legal evidence. The Court record establishes that September 17, 2001 was set as the first date for the pre-trial settlement conference in this case. The plaintiff herself presented notice of motion dated September 4, 2001, applying to adjourn the pre-trial “due to the fact that the expert witnesses and the accompanying documentation will not be ready for submission as set out in Rule 190 ....” Her explanatory letter to counsel for the defendants dated September 10, 2001 referred to an economist. This adjournment requested by Ms. Palmer-Johnson was granted by the Court. Alan McIntyre, legal counsel for the defendants, swore an affidavit April 2, 2002 in support of an application to set new pre-trial conference date. He deposed in paragraph that he had written letter to the plaintiff July 12, 2001 outlining the requirements in The Queen’s Bench Rules with respect to expert witness notices and evidence and again wrote the plaintiff September 17, 2001 (exhibit “B”) which stated in part as follows: Your suggestion at chambers to Mr. Justice McLellan that you were seeking an expert to provide an opinion about negligence was the first you had ever said anything about that. Based on your representation that you were seeking such an opinion, Mr. Justice McLellan adjourned the pre-trial conference. Of course, the problem you are faced with is that no one will give you the opinion you are seeking because neither Mr. Tochor nor Mr. Merchant failed to meet the standard of care of reasonable competent lawyer. He deposes in paragraph 10 of his affidavit in part: While her matter was before the court, Mr. Justice McLellan, did not seem disposed to granting such an adjournment but when the plaintiff raised the issue of whether or not Mr. Tochor had met the standard of care, the court promptly granted the requested adjournment. In paragraph 11 Mr. McIntyre deposes to letter he received from the plaintiff dated March 7, 2002 (exhibit “D”) in which Ms. Palmer-Johnson states: At present, am still in consultation and seeking legal advice. am waiting for reply from several lawyers. reassure you, however, once the legal representatives are in place, the pre-trial will commence shortly thereafter. [34] In addition to these communications about an expert witness or witnesses Mr. Justice Kyle, the judge originally designated to hear this trial, in an effort to provide some general guidance to Ms. Palmer-Johnson as self-represented plaintiff, caused the local registrar to send letter to the plaintiff (with copy to Mr. McIntyre) dated December 18, 2002 which stated in part as follows on p. 2: The plaintiff should be advised, for example, that the testimony is not receivable simply to the effect that the witness agrees with the plaintiff. witness, non-expert, who was at the trial and does not think the lawyer did very good job will not be permitted to give that evidence before jury. more common approach would be to have senior lawyer or law professor experienced in court matters testify after convincing the court that he or she is “qualified expert”. Such testimony would be based upon transcript as the person would not have been present at the trial. [35] Finally, the plaintiff has been in possession of the defendants’ notice to produce their intended expert legal witness and the nature of his intended testimony since December, 2002 when the defendants’ Notice of Expert Witness was served upon her. [36] These matters are reviewed simply to establish that it was clearly known to the plaintiff that the calling of legal expert to provide opinion evidence was important to her case. This Court and Mr. McIntyre for the defendants have attempted to assist and accommodate Ms. Palmer-Johnson in her efforts to do so by granting adjournments and giving some direction in communications to her. The plaintiff, Ms. Palmer-Johnson, was given every opportunity, if not encouragement, to call required experts. She chose not to do so. CONCLUSION [37] In the result, having concluded that the plaintiff has presented no evidence upon the fundamental issues which this jury might be called upon to consider in this case, I must and do grant the non-suit applied for. The case against the defendants, and each of them, is hereby dismissed and the jury will be discharged. The defendants will be entitled to one set of costs only against the plaintiff, the same to be taxed pursuant to column unless any other provisions of the rules with respect to offers of settlement are applicable.

The plaintiff brought a professional negligence claim against her former solicitors with respect to their handling of three charges against her for practising medicine without a licence and one charge for providing medical treatment, while not registered under the Medical Professions Act. The solicitors brought a motion for non-suit pursuant to Queen's Bench Rule 278A. HELD: The motion for a non-suit was granted. The claim was dismissed. Although given an opportunity, the plaintiff failed to call expert evidence respecting the elements of negligence including the duty of care, standard of care, breach of the duty of care or causation. The solicitors were awarded one set of costs taxed on column 4.

c_2003skqb197.txt

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2016 SKPC 086 Date: June 16, 2016 Information: 106/15 Location: Canora IN THE MATTER OF HEARING UNDER THE CHILD AND FAMILY SERVICES ACT AND IN THE MATTER OF WBA, born October 6, 2015 Appearing: Donna Taylor For the Ministry of Social Services Deanna Harris For the parents The parents and child and relatives are identified by initials in order to protect their identities. DECISION AFTER HEARING R. GREEN, I. INTRODUCTION [1] WBA was born on October 6, 2015. His mother is CB, now 19 years of age, and his father is JA, now 16 years of age. [2] This infant was technically apprehended at birth by the Minister of Social Services, but the Minister did not proceed with the application, and CB was allowed to take the baby home with her. The reason the Minister whose staff had received maternity alert regarding CB from their Rosetown office did not proceed with the apprehension was that JA’s parents, TK and BA, agreed that one of them would always be present in the parents’ home to supervise their care of WBA. [3] The concerns expressed in the maternity alert from Rosetown were: 1. CB had diminished cognitive abilities, as she suffers from FASD, and as result she has challenges around understanding and retaining information, despite presenting as though this is not the case; 2. CB has history of being involved in physically abusive domestic relationship; 3. CB has other mental health concerns, including anxiety, depression and cluster personality traits; and 4. CB has addiction issues. [4] While the dates are not clear in the evidence, the young parents and their baby then lived in house in Canora for few weeks, with either grandmother TK or grandfather BA present with them. They then moved to grandfather BA’s farm, and essentially lived there with BA supervising them until November 23, 2015. [5] On that date, family support worker Debbie Lapitski went to the farm to get CB to take her to an appointment in Yorkton. When she arrived, JA was very angry and was yelling. He accused Ms. Lapitski of trying to help his mother (TK) get custody of WBA. JA remained angry and eventually locked both Ms. Lapitski and CB out of the house, where he remained alone with the baby. Ms. Lapitski called the Ministry of Social Services and the RCMP. While waiting outside, CB told Ms. Lapitski that JA and her had fight, JA shoved her into the washer and tried to strangle her, and she then kneed him between the legs. [6] Both the RCMP and child protection workers attended to the farm. WBA was apprehended. The place of safety for the baby was determined to be grandmother TK’s house. After the baby was taken there, emergency child protection worker Brooke Edel went to TK’s place to complete documentation on the placement. JA arrived at TK’s house, and was angry and swearing. TK told her son to leave or she would call the police. He, in turn, told Ms. Edel that if she wasn’t going to let him see the baby, there were two people who wouldn’t be going to work the next day, police officer and her. As result, Ms. Edel called the RCMP for an escort out of the house, and said in the seven to ten apprehensions she had been involved with, she had never asked for back up from the police to get out, nor had she been threatened like this. [7] This is sad case, as most proceedings under The Child and Family Services Act are. We have two very young parents who want to care for WBA. The issue is whether they are able to provide for this child’s needs and, if not, whether physical or emotional harm to the child is likely to occur to the baby in their care (s. 11(b) of the Act). [8] The plan put forward by the parents at this hearing was that return the baby to live with them at grandfather BA’s farm, situation which is in my view very similar to the circumstances existing on November 23, 2015. Further, am asked to do this based on CB’s evidence, an email about programming JA took at the Society for the Involvement of Good Neighbours (SIGN), and certificates showing completion of parenting classes by CB, JA and BA. Quite significantly, am asked to do so without hearing any evidence from JA or BA, two of the three people the baby was living with when apprehended. II. THE CASE FOR THE MINISTER [9] Because only CB testified, much of the Minister’s evidence is uncontradicted. There was no evidence that CB was abusing drugs or alcohol after WBA was born. Nor was there any evidence that this baby was abused by his youthful parents. What is an issue, is the risk of harm to this infant if returned to his parents. The burden in this case is on the Minister to show both that WBA would be in need of protection if returned to live with his parents at BA’s farm, where he was apprehended, and, further, that the order sought six month temporary order or six month order placing the child with TK as person of sufficient interest is appropriate. will now summarise the evidence not already referred to: (a) Erin Heuser [10] Erin Heuser was involved with this baby and the parents, as child protection worker, on behalf of the Minister. She was present at Yorkton Hospital around the time WBA was born, and set up meeting with CB and JA and grandparents TK and BA. At that meeting, safety plan was drawn up, which meant that the Minister did not proceed with the apprehension. That safety plan was that the grandparents who no longer live together would both move in with JA and CB. One grandparent would always be present to provide supervision and guidance. (b) Debbie Lapitski [11] Ms. Lapitski has been family support worker employed by SIGN for 23 years. She worked with CB and JA from September, 2015 until the date of apprehension on November 23, 2015. She initially had two hours per week with the parents and this was increased to six hours per week, as it was clear that these parents needed more support. It was obvious, based on her observations and her conversations with CB, that both parents became frustrated with the tasks around raising this baby. While some frustration is normal with young parents, it was clear that there was level of stress and anger in this household which went well beyond “the normal”. She said CB wanted to parent, but she, however, was not sure CB was capable of doing it full time. JA, while not disinterested in parenting, was less willing to engage with Ms. Lapitski. [12] The situation came to head on November 23, 2015. She described the young people CB and JA as tired parents who were angry with each other and angry with Ms. Lapitski. The situation escalated as earlier described in this decision. Just prior to WBA being apprehended, JA locked CB and Ms. Lapitski out of the house, in fit of anger, and was alone with WBA. BA was nowhere to be seen. The RCMP were called. [13] I, without hesitation, accept that CB told Ms. Lapitski that JA and she had fight and that he shoved her into the washer and tried to strangle her, and that she then kneed him between the legs. Further, having had chance to assess Ms. Lapitski as witness, thought she presented well, in straightforward manner. Any suggestion as gather is suggested by the parents that she was conspiring with or acting to help TK to get custody of WBA is in my view not supported by the evidence. (c) Christi Fallows [14] Christi Fallows was the child protection worker in charge of this file on the day WBA was apprehended. She received cell phone call from Debbie Lapitski and CB, who were in van outside of the house the young parents were living in at BA’s farm. Both were on Ms. Fallow’s speaker phone. CB said that JA flipped out and locked her in the porch, then pushed her up against the washer and later kicked her and Debbie out of the house. [15] Given the involvement of the Ministry to this date, after Ms. Fallows spoke to her supervisor, she directed that the child be apprehended. Ms. Fallows, as well, directed that WBA be placed with grandmother TK and that place of safety designation report be prepared (which was filed at the hearing as Exhibit P-2). [16] Three days after the apprehension, Ms. Fallows met with CB, JA and BA. She tried to discuss the Minister’s concerns with them. In her words, the meeting did not go well as all three of the others were trying to talk over each other. She explained where WBA had been placed, with grandmother TK. Remarkably, the three wanted the RCMP to supervise any access. In Ms. Fallows words, that wasn’t happening, and must say agree with her assessment about what was reasonable at that point. [17] Ms. Fallows continued to have concerns with JA’s anger, especially when CB refused to give statement to the police about what happened on the apprehension date, and later said it was only minor incident. (d) Cst. Cumby [18] Cst. Andrea Cumby, of the Canora RCMP, testified about her involvement with this family. On July 21, 2015, she received call from BA, who said he had been abused by his son JA for couple of years. Another call was received with yelling in the background. JA had barricaded the driveway to BA’s farm, and was threatening to kill anyone who entered the yard. He had gun, which turned out to be pellet gun. [19] The Canora RCMP asked for, and received, backup from the Kamsack RCMP and the Yorkton RCMP. JA was taken in to custody, and then to Yorkton hospital under The Mental Health Services Act. BA, who was highly stressed and had been hiding under table in his house, was taken away by ambulance, as was CB, in fear that she was already in labour which it turned out she was not. [20] For his actions, JA was charged under The Youth Criminal Justice Act. Cst. Cumby was asked about other files the police had regarding JA. She said these involved uttering threats and assaults, and further, said the police had been called about this youth either by someone complaining about him or by him complaining ten to twelve times. (e) Grandmother TK [21] TK described CB and JA, at the time of WBA’s birth, as immature and not ready to parent. Three days after the birth, she and BA met with child protection worker, and agreed that one grandparent would be with the parents to supervise the care of WBA. For the first few weeks, she and BA alternated in supervising the care of the baby. While present, TK said she did most of the care of WBA. She said CB would feed WBA and then get tired. She described CB as tired, frustrated, not ready to parent, and confused. She said JA was working quite bit and, although he tried to feed the baby, he did not interact much with WBA. [22] TK said, after JA and CB moved out to BA’s farm, these parents dropped the child off with her for her to care for WBA from time to time. She said this was for week to week and half on one occasion. [23] After the apprehension, about six months ago, TK reduced her work schedule from five days week to three days week, and made use of daycare centre, all to help her care for the baby. She said JA and CB would visit with WBA at her place, but the visits varied lot from time to time. Because of the irregularity of the visits, she was concerned with the parents’ reluctance to visit WBA, and stopped visits at her house, rather suggesting that the visits be in public place, where others could see them, or that the visits be otherwise supervised by the Ministry staff. [24] TK clearly believed that these parents were not now prepared and/or able to care for this child as of the date of the hearing. It was obvious that her relationship with her son JA was, and is, poor, and that JA harbours anger towards her. [25] Regarding CB, TK admitted she didn’t know her well, but based on what she knows about her history and based on her observations of her with WBA, she doesn’t trust that CB could fully care for WBA. She said she has seen JA’s anger, and CB’s anger, and has seen that anger directed at each other, which is major concern for her. In particular, she says JA’s anger is unpredictable and she is not sure what will set him off. III. THE CASE FOR THE PARENTS [26] CB was the only witness for the parents. She described how she came to give up her first child for adoption, after the child was apprehended by the Minister of Social Services in Alberta. She was in violent relationship with former spouse, disclosed this to child protection worker and was afraid what would happen to the baby if she stayed in that relationship. [27] After her first child was born, she moved to Saskatchewan, where her grandmother lived, and went to school in Rosetown from May to November of 2014. While there, she had parent aid and was doing parenting preparation as she had not yet decided whether to agree to the adoption, which she subsequently did. [28] CB met JA on an internet dating site, and after two months of phone calls, tweets and exchanging pictures, she moved to BA’s farm near Canora and began living with JA. Early in 2015, she learned she was pregnant, and was very happy as this was second chance for her. [29] CB started looking into parenting classes, and began seeing worker named Sandy at Mental Health once week. In August, after the incident with JA and BA and the RCMP in July, she began seeing family support worker Debbie Lapitski. The two discussed such issues as getting the appropriate car seat and baby swing. She admitted to telling Ms. Lapitski she was anxious and worried about the birth of the child. She was worried that her baby would, again, be apprehended. [30] Sometime in the summer of 2015 and it was confusing to try to follow the dates of events in this case with any precision CB and JA moved to house in Canora. She has little recollection of the labour and birth of WBA, during time which she lost considerable amount of blood. She agreed with the Minister’s employees that either BA or TK would be present to supervise her and JA once they returned home with the baby. She said, in the early weeks of the child’s life, she was involved with feeding and bathing her son. [31] At some point gather after few weeks CB and JA moved to BA’s farm, where it was not as crowded as the house in Canora. During the weeks that followed, CB admitted that she and JA did drop the baby off to TK, but claimed TK didn’t cooperate with them regarding when the baby was to be picked up. [32] major part of the evidence in this hearing centred on the poor relationship between JA and CB, on the one hand, and TK, on the other. As said in court at the start of the hearing, ultimately must deal with what is in the best interests of WBA. It was my attempt to keep the focus on the infant and avoid hostilities between the parties. That said, and acknowledging the cognitive challenges CB has, find it difficult not to mention CB’s assessment of TK. She said when she first met her TK was as nice as pie to her, until TK found out that CB was pregnant, and now CB thinks that TK is bitch and there is no positive relationship between them. [33] On November 23, 2015, the appointment CB had was with Bernice Cartwright, family violence counsellor at SIGN. She acknowledged that both herself and JA have “issues” and she had hoped that he would come with her this day to the appointment. He refused and was angry. It is sad, and perhaps telling, that CB blames herself for JA’s anger over this. She summarised the issue by saying when JA is mad, she can’t tell him to calm down, he just has to be alone, and, further, that “he has his moments”. That, in my view, is an understatement. [34] When Ms. Lapitski arrived, CB said there was yelling and screaming and swearing back and forth between JA and Ms. Lapitski. [35] CB doesn’t remember talking to Christi Fallows on the phone that day. am satisfied she did, and that both Ms. Fallows and Ms. Lapitski accurately described what she said to them that day. [36] CB concluded her evidence by saying that, if WBA was returned to her and JA, they would live at BA’s farm or she would look for house in Sturgis or Preeceville (although there was no suggestion she had begun this search). She would make appropriate arrangements such as car seat and crib. JA is working full time at farm in Hazel Dell. Her supports would be friend named Tanya, neighbour named Roy, and grandfather BA, who lives in second house on the farm. No other details were given. [37] CB would also be open to another family support worker, other than Ms. Lapitski. To be clear, though, Ms. Taylor says the family support program is not prepared to provide an employee to work with these parents. IV. IS THIS CHILD IN NEED OF PROTECTION? [38] As said earlier, this sad case. We have very young parents who, each with significant challenges, want to care for their infant. We have grandmother, who is now caring for the child, and has provided not all, but most, of the care for this child since birth. We have all sorts of mistrust between the parents and the grandmother. We, as well, have child protection workers from the Ministry of Social Services who have the difficult job of ensuring this child is not in need of protection. [39] Regarding CB’s FASD assessment, filed as Exhibit P-1, gather there is lack of information about whether her mother drank during her pregnancy. As result, fetal alcohol spectrum disorder cannot be confirmed. That said, it is obvious CB suffers from cognitive disability. The report says: based on the occupational therapy and psychological assessments completed with CB, significant deficits were identified related to broad cognitive abilities, memory skills, communication skills, academic development, social cognition, adaptive/life skills, executive functioning, fine and gross motor skills, and visual-motor-integration skills. Considering that report, and the evidence presented at this hearing, it is obvious to me that CB needs significant amount of support to be able to parent this child. [40] It is as well obvious that JA is sixteen year old father who works hard to provide for his family, and am sure wants to be able to care for his son, but who, nevertheless, has some significant anger issues. appreciate that although he did not testify he has seen Bernice Cartwright at SIGN and that she wrote an email (Exhibit D-1) describing him as mature for his age and saying he and CB have shown great improvement in understanding what productive relationship is based on, despite the initial meeting with her being very tense. The email as well reflects how both JA and CB view grandmother TK as “thorn in their side”. [41] Even considering the meeting with Ms. Cartwright and the parenting programming JA has apparently done, based on the certificates filed as Exhibit D-2, it is difficult for me to reach any other conclusion than that this young man has some significant anger management issues that are yet to be dealt with. He baracaded his father’s farm last July, and threatened to kill anyone who came onto the farm. Police officers from three detachments were required to defuse this situation. After the child was apprehended he made threats directed to both police officer and child protection worker. Cst. Cumby said the Canora detachment had ten to twelve files regarding this sixteen year old. [42] Having heard the Minister’s evidence - the child protection workers, the family support worker, the police officer and grandmother TK, together with having read the FASD assessment - I am satisfied that WBA was in need of protection on November 23, 2015, when apprehended. I conclude that the parents were not, at that time, able to care for WBA and that physical or emotional harm was likely to occur to this six week old baby. [43] Similarly, when I consider the plan put forward by CB - to return the infant to the parents’ care in the same location as on November 23, 2015 with the support of grandfather BA, who was living there on the apprehension date, and a friend and neighbour of her’s - and even considering any programming done by the parents, I remain satisfied that this infant would remain in need of protection. That is not to say it is impossible for these parents to care for this child at some point. But it is to say that am not satisfied on the evidence presented that the care these young parents could as of today provide for this child would result in WBA not being in need of protection. V. WHAT ORDER SHOULD BE MADE? [44] Having found that WBA is in need of protection under s. 11(b), that then leads to the question of what order should be made under s. 37 of the Act. gather that, while in TK’s care, the parents saw the child only about six times. Without getting into the “blame game”, this is obviously not enough visits, and encourage the Ministry staff to encourage as much visitation between the parents and WBA as is reasonably possible. [45] All that said, this baby has been in the care of his grandmother for most of his life, and am satisfied that TK has cared well for WBA. I have no hesitation, considering all of her involvement to date, in finding TK to be a person of sufficient interest, and I so order under s. 23 of the Act. [46] As stated above, am not satisfied that the care these young parents could as of today provide for this child would result in WBA not being in need of protection. While not foreclosing the possibility of placing the child in their custody at a later time, I am satisfied on the evidence at this hearing that WBA should be placed in TK’s custody, as a person of sufficient interest, for a fixed period of four months, pursuant to s. 37(1)(b). That period is of shorter duration than the six months suggested by the Minister, but I have considered that: (1) given a variety of reasons, the parents have not had adequate access to their child so as to build a more positive relationship with him; and (2) there was no evidence that either parent abused or mistreated this child. Given both of these considerations, I view four months as a sufficient time for the parents to begin building a positive relationship with their child through access and, with the assistance of others, to come up with a plan that would allow them to care for their child so that child would not be in need of protection. [47] As result, order, pursuant to ss. 23 and 37(1)(b) of the Act, that the child WBA be placed in the custody of TK, as person of sufficient interest, for four months from today, subject to the conditions that: (a) Both parents will have liberal access to WBA, as arranged by the Minister’s employees; (b) Both parents will participate in any anger management or parenting programming as directed by the Minister’s employees; and (c) Both parents will co-operate in any parenting assessment done by the Minister’s employees, if such an assessment is undertaken during the course of this order.

HELD: The court found that the child was in need of protection under s. 11(b) of The Child and Family Services Act, that his parents were unable to care for him, and that physical or emotional harm was likely to occur to him. J.A.’s mother was found to be a person of sufficient interest under s. 23 of the Act. The court ordered that the child should be placed in the custody of J.A.’s mother as a person of sufficient interest for a period of four months pursuant to s. 37(1)(b) of the Act. The child’s parents should have adequate access to build their relationship with him and to allow them, with the assistance of others, to come up with a plan that would allow them to eventually care for their child.

b_2016skpc86.txt

Bankruptcy No. 155 J.C. R. IN THE QUEEN'S BENCH PROVINCE OF SASKATCHEWAN IN BANKRUPTCY IN THE MATTER OF THE PROPOSAL OF GUSTAFSON PONTIAC BUICK CADILLAC GMC LTD. AND IN THE MATTER OF AN APPLICATION PURSUANT TO SS. 58 and 59 OF THE BANKRUPTCY AND INSOLVENCY ACT, R.S.C. 1985, c. B-3, as am. S.C. 1992, c. 27 Kevin A. Clarke for Gustafson Pontiac Buick Cadillac GMC Ltd. Diana K. Lee for Oak Bluff Estates Ltd. Clark Sullivan on behalf of the trustee, Deloitte Touche Inc. JUDGMENT MALONE J. February 23, 1995 This is an application pursuant to ss. 58 and 59 ofthe Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, as am.S.C. 1992, c. 27 (the "Act"), for the approval of a proposalmade pursuant to s. 50 of the Act by Gustafson Pontiac BuickCadillac GMC Ltd. ("Gustafson") to its various creditors. Theapplication is opposed by one of the creditors, namely, OakBluff Estates Ltd. ("Oak Bluff"). At the meeting of the unsecured creditors to approve the proposal, six unsecured creditors voted against the approval representing approximately $430,000 of the indebtedness of the Gustafson. Forty-four unsecured creditors voted in favour of the proposal, representing approximately $1,800,000 of the indebtedness and thus the statutory requirement for the approval of the proposal was met. Only Oak Bluff, representing approximately 3% of the indebtedness, appeared in opposition to the application for Court approval. The grounds for its opposition are set out in letter to counsel for the Gustafson dated December 1, 1994, as follows: At the moment, we anticipate opposing the application on the following grounds: 1.That, under the proposal, GM and GMAC, were separate class of unsecured creditors and, as that class did not approve the proposal, the proposal was not properly approved by the creditors in accordance with Section 54(2)(d) of the Bankruptcy and Insolvency Act, or alternatively, that the proposal fails to treat all of the unsecured creditors equally. 2.The proposal is primarily calculated to benefit Prairie Security Fund and the guarantors of the secured creditors of the corporation and not the general body of creditors. 3.The fact that any payment to the unsecured creditors is dependant upon successful negotiations with the Bank of Montreal, Prairie Security Fund and an outside investor means the proposal is effectively nothing more than "holding proposal". 4.Insufficient evidence has been presented to the unsecured creditors of the fairness of the transfer prices under the proposal to Prairie Security Fund. 5.That without the favourable vote of Prairie Security Fund for its unsecured indebtedness, the proposal would have been defeated. 6.The proposal does not comply with the requirements of the Bankruptcy and Insolvency Act because it does not provide that all monies payable under the proposal, specifically those monies payable to GM and GMAC, shall be paid to the trustee as required by Section 60(2) of the Bankruptcy and Insolvency Act. With respect to the first and sixth grounds of objection, note the trustee described GM and GMAC as "franchise creditors" in his report to the unsecured creditors. This is an unfortunate description as the Act contemplates only three categories of creditors preferred, secured and unsecured. Nevertheless, am not prepared to withhold approval to the proposal on this basis. GM and GMAC are presumably in position to terminate their relationship with Gustafson at any time which would effectively put an end to Gustafson's ability to sell or lease GM products. They have not chosen to do so. assume therefore that if they had been categorized as unsecured creditors, they would have voted in favour of the proposal with the other approving creditors. Furthermore, counsel for Gustafson points out that objections one and six, as well as four, deal with the valuation of security or the classification of creditors and as such should have been raised at the meeting of creditors pursuant to s. 135 of the Act for disposition by the trustee and not upon this application. Support for this proposition is found in the cases of Re Toronto Permanent Furniture Showrooms Co. (1960), 1959 CanLII 261 (QC CS), C.B.R. (N.S.) (Ont. S.C.); Re Light's Travel Service Ltd. (1985), 1985 CanLII 614 (BC SC), 56 C.B.R. (N.S.) 175 (B.C.S.C.) and Darabaner v. Banque Imperiale du Can. et Lefaivre, C.B.R. (N.S.) 88 (Que.Q.B.). With respect to objections two and five, note that the vast majority of the creditors have not appeared to oppose the proposal and therefore assume, do not take exception to the advantage, if any, to be gained by Prairie Security Fund Ltd. With respect to objection three, the fact the proposal may be considered "holding proposal" is not, in my opinion, sufficient to withhold approval thereof. The case cited by counsel for Oak Bluff (Fisher Oil Gas Corporation and Peat Marwick Limited v. Guaranty Bank Trust Company (1982), 1982 CanLII 1791 (ON CA), 44 C.B.R. (N.S.) 225 (Ont. C.A.)) is not of assistance to her in this regard. The criteria to be followed by the Court on an application of this nature is set out in ss. 59(2) of the Act as follows: 59.(1) Where the court is of the opinion that the terms of the proposal are not reasonable or are not calculated to benefit the general body of creditors, the court shall refuse to approve the proposal If the proposal is approved, the parties agree that the unsecured creditors of Gustafson will receive approximately 10� to 11� on the dollar of the indebtedness owed. If it is not approved, Gustafson will be placed in bankruptcy and the creditors will receive nothing. In Houlden and Morawetz, Bankruptcy and Insolvency Law of Canada, 3rd ed., (Toronto: Carswell, 1993, updated Release 8, 1994) Vol. 1, p. 2-144.6, under the heading "Conditions that Must be Met Before the Court Will Approve Proposal" the authors state as follows: (a) Generally Under s. 59(2), the court before it can approve proposal must be satisfied; (a) that the terms are reasonable; (b) that the terms are calculated to benefit the general body of creditors; and (c) that the proposal is made in good faith. In determining whether to approve proposal, the court must consider not only the wishes and interests of creditors, but also the conduct and interests of the debtor, the interests of the public and future creditors and the requirements of commercial morality: Re Gardner (1921), C.B.R. 424 (Ont. S.C.); Re Sumner Co. (1984) Ltd. (1987), 64 C.B.R. (N.S.) 218 (N.B.Q.B.); Re Stone (1976), 22 C.B.R. (N.S.) 152 (Ont. S.C.); Re National Fruit Exchange Inc. (1948), 29 C.B.R. 125 (Que.S.C.); Re The Man With The Axe Ltd. (No. 2) (1961, C.B.R. (N.S.) 12 (Man. Q.B.). Further, at p. 2-144.8 the authors state: If, however, large majority of creditors, i.e., substantially in excess of the statutory majority, have voted for acceptance of proposal, it will take strong reasons for the court to substitute its judgment for that of the creditors: Re McIntyre (1922), C.B.R. 396 (N.B.K.B.); Re Landsmann Wexler (1936), 17 C.B.R. 240 (Que.S.C.); _cole Int. de Haute Esthetique Edith Serei Inc. (Receiver of) v. Edith Serei Int. (1987) Inc. (1989), 78 C.B.R. (N.S.) 36 (C.S. Qu,); Re Leger and Lamoureaux (1925), C.B.R. 280 (Que.S.C.); Re Slavik (1922), 12 C.B.R. (3d) 157 (B.C.S.C.); Re Slavik (1993), 1993 CanLII 1653 (BC SC), 21 C.B.R. (3d) 278 (B.C.S.C.). In my opinion, Gustafson has met the criteria set outin the Act and the authorities referred to in Bankruptcy andInsolvency Law of Canada, and accordingly the proposal asattached to the draft order filed herein is approved. make no order as to costs.

An application was brought under ss.58 and 59 of The Bankruptcy and Insolvency Act seeking approval for a proposal made by Gustafson Pontiac Buick. The proposal had received the necessary proportion of support from Gustafson's creditors. One unsecured creditor opposed the application. HELD: 1)Under s. 59(2), before it can approve a proposal, the Court must be satisfied; (a) that the terms are reasonable; (b) that the terms are calculated to benefit the general body of creditors; and (c) that the proposal is made in good faith. 2)In determining whether to approve a proposal, the court must consider not only the wishes and interests of creditors, but also the conduct and interests of the debtor, the interests of the public and future creditors and the requirements of commercial morality. 3)If, however, a large majority of creditors, i.e., substantially in excess of the statutory majority, have voted for acceptance of a proposal, it will take strong reasons for the court to substitute its judgment for that of the creditors. 4)Gustafson had met the criteria set out in the Act and the authorities referred to in Bankruptcy and Insolvency Law of Canada, and accordingly the proposal was approved.

b_1995canlii5775.txt

NOVA SCOTIA COURT OF APPEAL Citation: R. v. Deviller, 2005 NSCA 71 Date: 20050428 Docket: CAC 235613 Registry: Halifax Between: Sidney Darrell Deviller v. Her Majesty the Queen Respondent Publication Ban: pursuant to s. 486(3) of the Criminal Code Judges: Cromwell, Chipman and Oland, JJ.A. Appeal Heard: March 23, 2005, in Halifax, Nova Scotia Held: Conviction set aside and a new trial ordered per reasons for judgment of Cromwell, J.A.; Chipman and Oland, JJ.A. concurring. Counsel: Craig M. Garson, Q.C., 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: [1] The appellant was convicted of sexual assault. He testified at trial, denying the charge, but the trial judge disbelieved his evidence. On appeal, the appellant says that his conviction is miscarriage of justice because the trial judge based her rejection of his testimony on material misapprehensions of the evidence. [2] In my respectful view, the judge’s reasons for rejecting the appellant’s evidence are based on misapprehension of his evidence because she drew an inference from it that is not supportable in law or logic. It follows, in my view, that the conviction constitutes a miscarriage of justice and must be set aside. II. FACTS AND DECISION AT TRIAL: [3] The appellant appeals his conviction by Crawford, J.P.C. on a charge of sexual assault. [4] The complainant, who was between the ages of and 11 during the period charged in the information, testified that the appellant was frequent visitor in her home. While there, she said that he sexually abused her. She was uncertain as to how often this occurred, but said that it was at least once month. The abuse consisted of touching her vagina with his hand and trying to stick his penis into her vagina. On an unspecified number of occasions, he succeeded in putting his penis partly into her and on occasion he ejaculated. After the alleged abuse came to light, she remembered being taken to see doctor, but did not remember how recently before that she had been sexually abused by the appellant. [5] The doctor testified that she had examined the complainant in early January of 2003 and that she had superficial, one centimetre tear in the perineum stretching towards the anus but no contusions or abrasions. In chief, the doctor opined that she had seen this type of injury more than 30 times and that she had never seen an injury like it that had not been caused by sexual assault. However, in her brief written report and under cross-examination, her evidence was that the injury could have been caused or was likely caused by sexual assault. [6] The appellant testified and denied the charge. [7] The trial judge found that she did not believe the appellant’s evidence and that it did not give rise to reasonable doubt. [2] Applying the test in the Crown against D.W., do not believe the defendant’s denial, nor does it raise reasonable doubt in my mind due to the interior inconsistencies of his testimony and to his decreased credibility because of the criminal record he has for offences of dishonesty. [3] In particular, the defendant attempted to portray himself as being good to the children, including the complainant, as being there to get the meals, as providing food for them. Yet, he admitted on cross-examination that the children had been removed from the home because of allegations of physical abuse and lack of food. [4] He also stated that he spent three or four hours day at their home in their presence, yet asked to never be left alone with them because he was afraid of being charged with sexual abuse. [5] When confronted with his criminal record he was defensive and at first denied recollection until the Court’s reply to an objection by his counsel made it clear that unfounded denials would go to his credibility. (Emphasis added) [8] The appellant raises number of grounds of appeal but, in my view, it is only necessary to address one of them: that the judge’s reasons for rejecting the accused’s testimony and finding that it did not raise reasonable doubt are based on misapprehensions of the evidence. 1. Legal Principles: [9] This Court may allow an appeal in cases such as this if persuaded that there has been miscarriage of justice: see s. 686(1)(a)(iii) of the Criminal Code of Canada, R.S.C. 1985, c. C-46. trial judge’s misapprehension of the evidence may result in miscarriage of justice, even though the record contains evidence upon which the judge could reasonably convict. [10] What is misapprehension of the evidence? It may consist of “... failure to consider evidence relevant to material issue, mistake as to the substance of the evidence, or failure to give proper effect to evidence ...”: R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 97 C.C.C. (3d) 193 (Ont. C.A.) at p. 218. trial judge misapprehends the evidence by failing to give it proper effect if the judge draws an “unsupportable inference” from the evidence or characterizes witness’s evidence as internally inconsistent when that characterization cannot reasonably be supported on the evidence: Morrissey at p. 217; R. v. C.(J.) (2000), 2000 CanLII 1931 (ON CA), 145 C.C.C. (3d) 197 (Ont. C.A.) at para. 11. In Morrissey, for example, the trial judge stated that the evidence of two witnesses was “essentially the same”, conclusion not supported by the record. This was held to be misapprehension of the evidence. In C. (J.), the trial judge was found to have erred by characterizing the accused’s evidence as “internally inconsistent” when this conclusion was not reasonably supported by the record: at para. 9. [11] Not every misapprehension of the evidence by judge who decides to convict gives rise to miscarriage of justice. conviction is miscarriage of justice only when the misapprehension of the evidence relates to the substance and not merely the details of the evidence, is material rather than peripheral and plays an essential part in the judge’s reasoning leading to the conviction: see Morrissey, supra at 221; R. v. Lohrer, 2004 SCC 80 (CanLII), [2004] S.C.R. 732; S.C.J. No. 76 (Q.L.) at paras. [12] It follows, therefore, that to succeed on appeal, the appellant must show two things: first, that the trial judge, in fact, misapprehended the evidence in that she failed to consider evidence relevant to material issue, was mistaken as to the substance of the evidence, or failed to give proper effect to evidence; and second, that the judge’s misapprehension was substantial, material and played an essential part in her decision to convict. 2. Did the judge misapprehend the evidence? [13] The appellant submits that the judge misapprehended his evidence in relation to his treatment of the children and their removal by the child welfare authorities. As noted earlier, the judge said in her reasons “... the [appellant] attempted to portray himself as being good to the children, including the complainant, as being there to get the meals, as providing food for them. Yet, he admitted on cross-examination that the children had been removed from the home because of allegations of physical abuse and lack of food.” The appellant says that in this passage, the trial judge concluded that he was liar because she erroneously found an inconsistency between him portraying himself as being good to the children when, according to the judge’s erroneous conclusions, he was somehow responsible for physically abusing and starving them. [14] In my respectful view the judge misapprehended the appellant’s evidence on this point because she failed to give proper effect to the evidence. The judge, respectfully, found an inconsistency which is not supported by the record and attributed to this evidence relevance which it does not possess in either law or logic. There was no evidence before the court of the truth of the allegations of mistreatment of the children referred to by the appellant. There was, therefore, no inconsistency in the appellant’s evidence on this point. [15] It will be helpful to review the trial evidence on this point in more detail. [16] The appellant acknowledged in his testimony that he was in relationship with the complainant’s mother and that the mother and he had child together. In all, counting the complainant and that child, there were five children in the household. The appellant testified that while visiting the household, he often made meals and contributed to the purchase of groceries. His evidence-in-chief was: Q. ...And can you describe typical when first of all, when [the complainant’s mother] was living on William Street back in 2001 2002, can you describe or tell us how much time you spent at that residence? A. Well, spent little bit of time, but not all the time, completely all the time. In the mornings used to go to the wharf at night and look after the staynors and unload them and then would say somewhere around 6:00 or 6:30 I’d go and wake up the kids and that, make sure they had their breakfast and that, get ready. Get up and get ready and go to school. Q. And then how long would you stay there in the morning? A. would stay would stay there till somewhere would say 8:00 or 9:00. Just about the time that [the complainant’s mother] was going to school. At the time that she was going to school to upgrade her license or whatever it was that she was doing. And then I’d go from there and go back to work again. Q. And then when would you return back to the residence on William Street? A. would return somewhere around would say around 4:00. Between 3:30 and 4:00. Q. And how much time would you spend there in the afternoon? A. would stay there somewhere between would say about three hours at the most. Three to four hours at the most and would cook the kid’s supper and then after they were done would leave there somewhere around would say between 7:30, 8:00. don’t know exactly. Sometimes would stay little bit longer. Q. ... When did [the complainant’s mother] and the kids move? A. In the year the year 2002. In October. November. In November. We moved in there the 15th think it was the 15th or 14th of November we moved into Chebogue. can’t say for sure. Q. And did you spend any more or any less time at the residence in Chebogue after the family relocated? A. spent maybe an extra hour, that was about it, you know because it was deer hunting time and went down in the woods there and was deer hunting and that and left from there and went home. Q. How was your relationship with the [A.]’s children? A. Well, the way the way everybody says that was bad to them and my relations, figured that was good to the children. loved them very much. (Emphasis added) [17] would just note at this point that the appellant made no bones about the fact that people claimed he treated the children badly, but felt that this was not an accurate assessment of his role. [18] This subject was addressed during cross-examination. The appellant agreed that the children had been removed from the home by Children and Family Services because of allegations of inadequate food and physical abuse. His testimony was: Q. But you’d do anything for the kids. You were talking about how nice you were with the kids, right? You like them. You like [the complainant] best, right? A. Yes. Q. Those those children, where are they now? A. They’re in foster homes. Q. Foster homes. A. don’t know where they’re at, but Q. So they were removed by Children and Family Services? A. Yes, with no permission, er, any information. Only thing come out is that guess it started from the oldest boy said that we were starving him to death. Q. You you agree that part of was because of alleged physical abuse on [N.], right? That’s part of why of they took the children that you know, right? A. Yes. (Emphasis added) [19] There was no evidence as to the truth of the allegations which apparently resulted in the children being removed by Children and Family Services. There was no other relevant evidence about child protection proceedings or the appellant’s treatment of the children other than the complainant. The appellant’s evidence during cross-examination was that the children had been removed on the basis of “no information”. [20] The trial judge saw significant inconsistency between the appellant’s evidence-in-chief and cross-examination on this subject. She said that the appellant “attempted to portray himself as being good to the children...” and yet had admitted on cross-examination “... that the children had been removed from the home because of allegations of physical abused and lack of food.” [21] There are two possible explanations as to how the judge thought that the appellant’s evidence on this subject had “interior inconsistencies.” [22] First, the judge may have thought that the accused was suggesting that he was well regarded for his kindness to the children when, in fact, quite the opposite was the case. But that line of reasoning is not available on this record. The problem with this line of reasoning is that the appellant readily acknowledged in his direct evidence that “everybody” said he did not treat the children well although he thought that he had. The fact that particulars of the nature of his alleged mistreatment were canvassed during his cross-examination does not reveal any inconsistency with respect to how he felt his actions were regarded and the way others regarded them. Quite the opposite: he said in-chief that “... everybody says was bad to them.” This first possible line of reasoning does not justify the judge’s finding of inconsistency in the appellant’s evidence on this point. [23] second possible line of reasoning is this. The judge may have treated the evidence that the children had been removed amidst allegations of abuse as some evidence that the appellant had, in fact, mistreated them. On that line of reasoning, there would be significant inconsistency between the appellant’s stated treatment of the children and his actual treatment of them. This is the appellant’s main point. He submits that the judge found him to be liar because he claimed to have been good to the children when he was in fact responsible for physically abusing and starving them. [24] agree with the appellant that this line of reasoning was not open to the judge on this record. The appellant’s evidence about the involvement of Children’s Services did not permit the judge to draw any inference that the children had, in fact, been badly treated or that the appellant was responsible for such treatment. The appellant did not admit any mistreatment; he testified about an allegation. But an allegation is simply that. It is not evidence of its truth. The appellant’s evidence that Children’s Services acted is not evidence of the truth of the allegations leading to the removal of the children. Drawing such an inference is like inferring guilt from the fact that person is arrested and charged. It was no more inconsistent for the appellant to say that he thought he treated the children well even though Children’s Services had intervened than it would be for person who had been arrested and charged with crime to say that he had not broken the law. [25] Apart from the two possibilities have discussed, there is no other way in which the appellant’s evidence on this subject could be viewed as internally inconsistent. But in the circumstances of this case, either use of this evidence results from failure to give proper effect to the evidence. Either use reveals a chain of reasoning which is not available to the judge in law or in logic on this record. [26] I conclude therefore that the judge misapprehended the evidence on this point by failing to give proper effect to this evidence. 3. Was the evidence substantial, material and essential to the conviction? [27] In my view, the judge’s misapprehension of the evidence was substantial. She ascribed to the evidence about the involvement of Children’s Services, relevance that it simply could not have. The inference which the judge drew from this evidence could not have been more unjustified. [28] The misapprehension was, in my view, also material. Credibility was critical issue at this trial. It was virtually two witness case: the complainant said the appellant abused her and the appellant denied it. Thus, evidence bearing on the appellant’s credibility was highly material to that critical issue. [29] That leaves for consideration whether the misapprehended evidence played an essential part in the judge’s reasoning leading to the conviction. To consider that question, it is helpful to place the misapprehension in the context of both the judge’s reasons as whole and the whole of the evidence at trial. [30] The trial judge gave two main reasons for rejecting the appellant’s evidence. One was the “interior inconsistencies” in his testimony. With respect to these “interior inconsistencies”, the judge refers “in particular” to the evidence which have just discussed in relation to Children’s Services which she misapprehended and to the appellant admitting that he had spent three or four hours day at the children’s home yet testifying that he had asked never to be left alone with them. It bears noting that these are the only two specific “interior inconsistencies” referred to in the judge’s reasons and the reasons do not suggest that there were others which are not specifically mentioned. [31] The judge also referred to second main reason for disbelieving the accused: his “decreased credibility” because of his criminal record for “offences of dishonesty”. [32] It seems, therefore, that these two main points, of which the misapprehended evidence is one of three specific examples, were important to the judge’s conclusion respecting the appellant’s credibility and, therefore, to her finding of guilt. The misapprehended evidence in relation to Children’s Services is, therefore, one of the three matters specifically referred to in the judge’s reasons for rejecting the appellant’s evidence. It is given at least as much emphasis as the others. It was not presented as secondary consideration. The only reasonable conclusion, in my view, is that it was sufficiently important in the judge’s mind that it was an essential part of her reasoning leading to the conviction. [33] An examination of the judge’s other reasons for disbelieving the appellant in the context of the trial record does nothing to detract from the conclusion that this misapprehension was essential to the conviction. The judge’s reasoning on the other points is also problematic. [34] Consider the judge’s second point of supposed internal inconsistency in the appellant’s evidence. As noted, the judge found inconsistency between the appellant’s evidence that he spent three or four hours day in the children’s home and his evidence that he asked never to be left alone with them because he was afraid of being charged with sexual offence. In my respectful view, this finding of inconsistency rests on mistake as to the substance of the appellant’s evidence on this point or at least on questionable adverse interpretation of evidence that was ambiguous. [35] The judge seems to have thought that the appellant said that he had asked not be left with the children as group whereas his testimony seems to have been that he had asked not to be left alone with any one of the children. [36] The appellant’s evidence was as follows: Q. And did you ever spend any time alone with [the complainant] when [the complainant’s mother] was away from the home? A. No, never did. Q. Can you remember one time when you spent time alone with [complainant] at the house? A. No, never, ever asked [the complainant’s mother] never, ever let me leave me alone with none of the children and she asked me why told her. said lot of friends of mine got charged for molesting kids and said wouldn’t want that on me and now have. Q. And you say that you wouldn’t have been alone because you asked [the complainant’s mother] not to leave you alone with the kids because you were afraid A. With none of the children. A. With none of the children. Q. You were afraid that you might be charged with sexual assault or allegations of that? A. No, didn’t say that. said asked her not to leave me with any of her children because had few friends that was charged for that same offence and do not want it on me, is that’s that’s what told her. Q. And so you’re telling us that you never spent time alone with any of those children No, sir. (Emphasis added) [37] The record, in my respectful view, does not support the judge’s conclusion that there was some significant inconsistency within the appellant’s evidence about spending time with the children and his not wanting to be left alone with them. His evidence appears to have been that he asked not to be left alone with any one child, but at the very least, his evidence is equally consistent with that interpretation as the one on which the judge’s finding of inconsistency is based. [38] The judge’s reasons and the record on this point do not in any way undercut the importance of the misapprehension in relation to the involvement of Children’s Services. [39] The judge also said that she rejected the appellant’s evidence because of his criminal record and the way he had testified about it. The appellant admitted in cross-examination that he had several convictions for “break and enter” on his record. In relation to this testimony, the judge said in her reasons that “... [w]hen confronted with his criminal record he was defensive and at first denied recollection until the Court’s reply to an objection by his counsel made it clear that unfounded denials would go to his credibility.” [40] With respect, it is difficult to see in this record either that the appellant “at first denied recollection” or that the judge made it clear to him that “unfounded denials would go to his credibility.” The Crown concedes that the trial judge may have overstated the case in this respect. The appellant’s evidence, in relevant part, was as follows: MR. SCOVIL [Crown counsel]: You told my friend you haven’t been charged with sexual assault at any time, right? A. was charged for indecent exposure, not charged for sexual assault. Q. You were charged and convicted, correct? A. Yes, was. Q. For indecent exposure. A. Yes. Q. That was Q. And was think was 17 years old at the time. Q. In 1996 [sic], correct? You got one month probation on that A. Yes. Or six months probation A. Yes. Q. -and one month custody, correct? A. Well, don’t remember that. A. That’s been quite few years ago. Q. In 1971 [sic] you were convicted and correct me if I’m wrong A. Oh, whoa, go back. What year did you say that was? Q. 1977 [sic]. A. The first time? Q. 1976, sorry. A. No, not me. Sorry, you got the wrong person. Q. You were convicted of indecent exposure. A. No, sir, indecent exposure way back when was about 16 years old. You got two charges there, no, no. No. Q. From the 8th of March, 1976. A. That’s quite few years ago. remember being charged once for for indecent exposure and that was it. Q. You were convicted of break and enter on A. What’s that got to got with this? Q. You were convicted just answer my questions. Q. On the 7th of September, 1971, you were convicted of break and enter and you got three months for that, correct? A. don’t remember. Q. You were convicted of break and enter in 1972 Yes Q. on the 8th of A. If could say something. I’ve been in trouble since was 16 years old Q. No, I’m asking the questions, so you just answer and if Okay, Q. anything that I’m asking is improper A. Okay. MR. ROBICHAUD [Defence counsel]: Your Honour, don’t know if the property related criminal history is relevant to the to the MR. SCOVIL: Well- THE COURT: It’s relevant only to credibility and if the witness answers “yes” or “no” and that’s the end of the matter. We don’t hear any details about the convictions, simply whether or not they happened. MR. SCOVIL: And certainly under Corbett application if one is saying I’ve never been convicted THE COURT: Right. MR. SCOVIL: of this and that, then it raises THE COURT: Then it becomes relevant. MR. SCOVIL: and that’s what was there and therefore and of course those kinds of crimes of dishonesty and THE COURT: Uh, huh. MR. SCOVIL: that effects always question of credibility. THE COURT: Right. MR. SCOVIL: You were convicted on the 8th of May, 1972 of break and enter, again one count and you received suspended sentence of two years, correct? Q. You were convicted in 1973 of three counts of break and enter, one count of theft, er, two counts of theft under for which you received total of six months, is that correct? A. Yes. Q. And in 1974 you were convicted of break and enter and you given 18 months for that, correct? 18 months custody? A. For what year was that? Q. Break and enter. Q. And you already mentioned the indecent exposure. In 1974 you were again convicted of break and enter and you got 90 days intermittent on that. A. Yes. Q. And in 1990, or, 1982, the 5th of January, you were convicted of break and enter for which you received six months, correct? A. Yes. Q. And in 1994 you were convicted of break and enter for which you received suspended sentence and 18 months probation. [41] The accused readily admitted his conviction for indecent exposure and made no attempt to hide the fact that he had been in trouble since he was 16 years old. It is, with respect, not fair summary of the substance of this evidence to say, as the judge did, that the appellant “at first denied recollection” of his criminal record or that his responses changed only when the judge made it “clear to the accused that unfounded denials would go to his credibility”. [42] With respect, the learned trial judge was mistaken as to the substance of the evidence in this regard. Once again, the record on this point does not to my mind in any way undermine the importance of the misapprehension of the evidence in relation to the appellant’s treatment of the children and the involvement of Children’s Services. [43] An examination of the rest of the record does not detract from the centrality of this misapprehension of the evidence to the conviction. The rest of the evidence certainly justified conviction if accepted beyond reasonable doubt. But it had its difficulties. The medical evidence “assisted” the judge, but appears not to have been decisive in her reasoning. As the judge acknowledged in her reasons, there were weaknesses in the complainant’s testimony. The judge appears to have attributed some of these weaknesses to the unduly complicated questions put to the complainant. The judge said that perhaps more helpful answer would have been elicited if the complainant had been asked simply how may times she had been assaulted. Unfortunately, the judge misapprehended the evidence on this point. The record discloses that the complainant was asked precisely that question. [44] I would conclude, therefore, that the judge’s finding adverse to the appellant as regards his credibility is based on a misapprehensions of the evidence. Viewed in the context of the reasons and the record as a whole, that misapprehension played an essential part in the judge’s reasoning leading to the appellant’s conviction. The misapprehension is, therefore, one that gave rise to a miscarriage of justice. V. DISPOSITION: [45] I would set aside the conviction and order a new trial. Cromwell, J.A. Concurred in: Chipman, J.A. Oland, J.A.

The appellant was convicted of sexual assault. The court disbelieved his evidence, principally because it was found to be internally inconsistent. The court found that the appellant had attempted to portray himself as being good to the children but had admitted on cross-examination that the children had been removed from the home due to allegations of physical abuse and lack of food. There was no evidence before the court as to the truth of these allegations and the appellant had stated in his evidence that everyone thought that he treated the children badly. The appellant appealed. Appeal allowed; conviction set aside; new trial ordered. The trial judge misapprehended the evidence because she attributed to it a relevance that it could not have in law or in logic. The appellant’s evidence about the involvement of Children’s Services did not permit the judge to draw any inference that the children had, in fact, been badly treated or that the appellant was responsible for such treatment. The misapprehension, examined in the context of the judge’s reasons as a whole and the entire record was substantial, material and played an essential part in the judge’s reasoning leading to the conviction; the misapprehension had given rise to a miscarriage of justice.

d_2005nsca71.txt

J. IN THE SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: Ezurike v. Ezurike, 2006 NSSC 73 Date: 20060307 Docket: 1201-59217 (SFHD-36204) Registry: Halifax Between: Christie Chika Ezurike v. Levi Chucks Ezurike Respondent Judge: The Honourable Justice Leslie J. Dellapinna Heard: January 18, 19, February 16 and 21, 2006 in Halifax, Nova Scotia Counsel: Cheryl Arnold counsel for the Petitioner Levi Chucks Ezurike, Self-represented By the Court: [1] This is divorce proceeding. Christie Ezurike (the Petitioner) and Levi Ezurike (the Respondent) were married on October 15, 1986 in Nigeria. They separated on October 18, 2004 after which the Petitioner petitioned for divorce and the Respondent filed Counter-Petition. [2] The parties have four children. At the present time the two older children reside with their mother when they are not attending university and the two younger children live the majority of the time with their father. The parties are unable to agree on the ongoing custodial arrangements with respect to the two younger children. They have also not agreed on the division of their assets and debts or on the issue of child support. It was agreed that the issue of custody would be heard by the Court first with the financial issues deferred to later date. [3] The parties met in Nigeria on October 7, 1986. They were married just over week later in traditional Nigerian ceremony. It was the first marriage for the Petitioner and the second for the Respondent. The Respondent has three children from his first marriage. He is older than the Petitioner by approximately twenty-four years. She was twenty-two on the date of their marriage and he was forty-six. [4] After their marriage the parties moved to Canada where the Respondent had been living for many years. They took up residence together in Nova Scotia. [5] The Respondent was employed with the federal government, first with the Department of Transport and later with the Department Fisheries and Oceans. He also maintained taxi driver’s license and drove cab on part-time basis. He retired from the federal government on February 12, 2004. [6] Less than year after their marriage the parties had the first two of their four children. Nneka Connie Ezurike and Ndidika (Didi) Claudette Ezurike were born September 25, 1987. They were soon followed by Abuchi Justin Okeome Ezurike, who was born May 15, 1990, and Nkemjika (Nkem) Natalie Ezurike, on March 19, 1992. [7] Initially the parties assumed so-called traditional roles in their marriage. The Respondent provided financially for the family and the Petitioner maintained their home and cared for the children. [8] Beginning in 1991 the Petitioner began her studies in Early Childhood Education and worked part-time at daycare in the summer of 1992. She eventually obtained her Bachelor of Arts degree from Mount Saint Vincent University. She studied part-time beginning in 1994. She took one year off from work in 1999 to study full-time. She graduated in 2000. She then obtained her Bachelor of Social Work degree from Dalhousie University, graduating in the spring of 2002. It was her evidence that her husband provided her with little moral, physical or financial assistance during the years that she studied. She claims that he did not help with the care of the children and at times even created additional hurdles by refusing to assist in transporting the children to daycare during the year the Petitioner was studying on full-time basis and refusing to co-sign her student loan application. [9] The Respondent controlled the finances throughout most of the parties’ marriage. When the Petitioner was employed on part-time basis she would hand over her pay cheque to her husband who would then determine how much she needed for groceries and other households expenses. Unless he paid the bills himself he would tell her what was to be paid. When she obtained student loan he insisted on taking those funds too and he then decided how the funds were dispensed. The Petitioner gradually but increasingly resisted the Respondent’s insistence on controlling her income. The Respondent’s inability to accept his wife’s growing desire for independence caused considerable friction in the marriage. [10] The Petitioner began her employment as social worker with the Department of Community Services in July of 2002 and remains in that position. [11] Throughout the marriage the Respondent tried to assert his authority over the Petitioner and the children. The Petitioner claims that at many times she was physically assaulted by her husband and on at least two occasions he was charged as result and on one of those occasions convicted. [12] When it was clear that the marriage was breaking down the parties attended two marriage counselling sessions but they did not continue due in part to the Respondent’s refusal to contribute to the cost. Throughout the Respondent’s presentation of his case, it was evident that he has been and continues to be preoccupied with financial issues. [13] In June 2004 the matrimonial home was destroyed by fire. The family was forced to move. Initially they moved to house supplied by their church but in October of 2004 they were told that they had to find other accommodation. The Respondent instructed his wife to search for suitable apartment. Nothing she found was acceptable to him and eventually he located two bedroom apartment in Dartmouth, Nova Scotia. On the eve of the family’s move to the new apartment the Respondent advised the Petitioner that she was not to move into the new apartment but instead was to secure her own place to live. This came as total surprise her. After sleeping in her vehicle and staying with friend for approximately week she was able to obtain her own apartment in Sackville. Shortly after the Petitioner moved into her own apartment the two older children moved in with her. At first the Respondent refused to allow his daughters to take their beds and other belongings with them but eventually he acquiesced. He refused to allow the Petitioner to take the two younger children with her and did not allow them to contact her. As result the Petitioner applied to the Court for an Order for interim access. [14] On an interim basis the parties agreed that the Petitioner would have the care of the two older children and the Respondent would have the care of the two younger children. The Petitioner testified that she agreed to the interim split care arrangement in order to get the parties and the children through Christmas of 2004 with at least some kind of access arrangement in place knowing that it was only an Interim Order. After hearing it was also ordered that the Petitioner would have the care of the two younger children each week from Monday at the time of their dismissal from school until the following Thursday at the time of the commencement of school. The Respondent continued to have the care of the children the remainder of the week. [15] The Petitioner has applied for the primary care of the two younger children and proposes that the Respondent have access to them every second weekend as well as for reasonable periods of time during the week provided they are home in time to do their homework. The Respondent also seeks primary care. THE DIVORCE [16] find that there has been permanent breakdown of the parties’ marriage. They separated on October 18, 2004 and have not resumed cohabitation as husband and wife since that date. There is no possibility of reconciliation. Divorce Judgement will be issued. specifically retain jurisdiction to make final disposition with respect to all corollary issues and in particular the division of the parties’ assets and debts and with respect to child support and costs. THE PETITIONER’S POSITION [17] The Petitioner argues that throughout the marriage she was the primary parent to all four children and that her husband did little to assist her with the care of the children. Even now, she says, although the two younger children spend more than half of the week with their father, she still buys their clothes, toiletries and other necessities and drives them to many of their sporting events even during those times when they are residing with their father. While in their father’s care, she says, they are often left to provide for themselves including cooking their own meals and doing their own laundry. Although they are fifteen and thirteen, she believes that they should not be left totally unsupervised for lengthy periods of time. She says her husband drives cab frequently during the evenings and weekends and leaves the children entirely by themselves (which he denies). THE RESPONDENT’S POSITION [18] The Respondent believes that the children should remain in his care, especially during the week. Both children are heavily involved in sporting activities, particularly soccer and both stand chance of being selected for the national soccer team for their age group. It is his evidence that for them to make the national team high degree of commitment is expected of them and he is in better position than their mother to ensure their attendance at their various practices and games because he is retired and has no work commitments during the week. Because of the Petitioner’s employment he says she cannot be relied upon to get the children to their practices and games on time. [19] Since the matrimonial home was destroyed in June, 2004, the Respondent has been gradually reconstructing the home. Although not yet complete he and the children are living in the home. He anticipates completing the house in the near future. He argues that the house is what the children consider to be their home and he says it “provides the children with conducive environment and good neighbourhood to grow.” The children have close friends living in the neighbourhood and it is within the district of the high school that they will attend. By contrast, he argues, the Petitioner’s neighbourhood “does not measure up”. He considers it to be unsafe and haven for drug traffickers. [20] The Respondent also argues that the Petitioner has extra-marital “sexual indulgences” which he says create an unhealthy environment for the children. He expressed concern for the kind of moral example their mother is setting for them. He says that he believes the Petitioner’s custody application is financially motivated. He also accuses her of being involved with “Underground Drug Traffickers outside the country” and of belonging to an “occult organization that promises her new life filled with 1,000 joys, love, luck and money.” [21] The Divorce Act, 1985 provides as follows: (1) court of competent jurisdiction may, on application by either or both spouses or by any other person, make an order respecting the custody of or the access to, or the custody of and access to, any or all children of the marriage. (4) The court may make an order under this section granting custody of, or access to, any or all children of the marriage to any one or more persons. (5) Unless the court orders otherwise, spouse who is granted access to child of the marriage has the right to make inquiries, and to be given information, as to the health, education and welfare of the child. (6) The court may make an order under this section for definite or indefinite period or until the happening of specified event and may impose such other terms, conditions or restrictions in connection therewith as it thinks fit and just. (7) Without limiting the generality of subsection (6), the court may include in an order under this section term requiring any person who has custody of child of the marriage and who intends to change the place of residence of that child to notify, at least thirty days before the change or within such other period before the change as the court may specify, any person who is granted access to that child of the change, the time at which the change will be made and the new place of residence of the child. (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. [22] In Young v. Young, 1993 CanLII 34 (SCC), [1993] S.C.R. 3, the Supreme Court of Canada, among other things, discussed Section 16 of the Divorce Act and the “best interests” test. At paragraph 17, the Court stated: ... the test is broad. Parliament has recognized that the variety of circumstances which may arise in disputes over custody and access is so diverse that predetermined rules, designed to resolve certain types of disputes in advance, may not be useful. Rather, it has been left to the judge to decide what is in the “best interests of the child”, by reference to the “condition, means, needs and other circumstances” of the child. Nevertheless, the judicial task is not one of pure discretion. By embodying the “best interests” test in legislation and by setting out general factors to be considered, Parliament has established legal test, albeit flexible one. Like all legal tests, it is to be applied according to the evidence in the case, viewed objectively. There is no room for the judge’s personal predilections and prejudices. The judge’s duty is to apply the law. He or she must not do what he or she wants to do but what he or she ought to do.” With respect to Section 16 (10), the Court stated at paragraph 18: ... Section 16(10) provides that in making an order, the court shall give affect “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”. This is significant. It stands as the only specific factor which Parliament has seen fit to single out as being something which the judge must consider. By mentioning this factor, Parliament has expressed its opinion that contact with each parent is valuable, and that the judge should ensure that this contact is maximized. The modifying phrase “as is consistent with the best interests of the child” means that the goal of maximum contact of each parent with the child is not absolute. To the extent that contact conflicts with the best interests of the child, it may he restricted, but only to that extent.” [23] Goodfellow, J. in Foley v. Foley 1993 CanLII 3400 (NS SC), 1993 CarswellNS 328 attempted to provide list of various factors for the Court to consider in determining what is in child’s best interest. He stated, beginning paragraph 15: In determining the best interests and welfare of child the court must consider all the relevant factors. The diversity that flows from human nature is such that any attempt to compile an exhaustive list of factors that could be relevant is virtually impossible. 16 Nevertheless, there has emerged number of areas of parenting that bear consideration in most cases including in no particular order the following: 1. Statutory direction Divorce Act 16(8) and 16(9), 17(5) and 17(6); 2. Physical environment: 3. Discipline; 4. Role model; 5. Wishes of the children if, at the time of the hearing such are ascertainable and, to the extent they are ascertainable, such wishes are but one factor which may carry great deal of weight in some cases and little, if any, in others. The weight to be attached is to be determined in the context of answering the question with whom would the best interests and welfare of the child be most likely achieved. That question requires the weighing of all the relevant factors and an analysis of the circumstances in which there may have been some indication or, expression by the child of preference; 6. Religious and spiritual guidance; 7. Assistance of experts, such as social workers, psychologists, psychiatrists, etcetera; 8. Time availability of parent for child; 9. The cultural development of child: 10. The physical and character development of the child by such things as participation in sports: 11. The emotional support to assist in child developing self esteem and confidence; 12. The financial contribution to the welfare of child. 13. The support of an extended family, uncles, aunts, grandparents, etcetera; 14. The willingness of parent to facilitate contact with the other parent. This is recognition of the child's entitlement to access to parents and each parent's obligation to promote and encourage access to the other parent. The Divorce Act s. 16(10) and s. 17(9); 15. The interim and long range plan for the welfare of the children. 16. The financial consequences of custody. Frequently the financial reality is the child must remain in the home or, perhaps alternate accommodations provided by member of the extended family. Any other alternative requiring two residence expenses will often adversely and severely impact on the ability to adequately meet the child's reasonable needs; and 17. Any other relevant factors. 17 The duty of the court in any custody application is to consider all of the relevant factors so as to answer the question. 18 With whom would the best interest and welfare of the child be most likely achieved? 19 The weight to be attached to any particular factor would vary from case to case as each factor must be considered in relation to all the other factors that are relevant in particular case. [24] would add to Goodfellow, J.’s fourteenth consideration the willingness of each parent to foster positive relationship between the child and the other parent and, where appropriate, the willingness of each parent to work cooperatively with the other in the raising of the children. [25] In August, 2005 the parties consented to an Order which provided that Abuchi and Nkem would be “referred to an assessor to be assigned by the Supreme Court (Family Division), for the purpose of ascertaining the views of the children....with respect to their living arrangements.” That assessment was conducted by Elizabeth Simms, M.A. who provided report to the Court dated October 15, 2005. Ms. Simms interviewed the children as well as the parties and number of named collaterals. In her report she said “Abuchi impressed me as warm and intelligent person who expressed that he felt exactly the same for both of his parents and had no preference or opinion regarding living arrangements... In general Abuchi appears to be an adjusted, mature teenager who has emotionally disengaged himself from the conflicts between his parents.” Further, “As with her brother, Nkem expressed having no preference in regard to living arrangements. She said that she was glad that the fighting had stopped since the separation of her parents. Also, as with her brother, found Nkem has put her focussed (sic) on her goals with academics and sports which consume most of her time and energy.” Ms. Simms also interviewed the parties’ two older daughters, Didi and Nneka, and said “I found them to be bright and mature. As with their younger siblings, found them to be distant and guarded regarding their parents; they expressed no preference or opinion about living arrangements for their siblings. Both girls were extremely loyal to both parents and gathered that the (sic) would prefer that such decisions be made by the adults concerned.” [26] In her conclusions Ms. Simms stated: “Christie and Levi Ezurike have exercised traditional male and female parenting roles in raising their children these past 17 years. Christie has provided strong emotional bond and the domestic duties of the home. Levi has provided financially and in assisting with transportation, sports and academic support. The four Ezurike children are intelligent, athletic and successful. Throughout the children’s childhood, however, they have subject (sic) to much conflict and stress between their parents..... Despite the conflict which they have witnessed, the four children remain extremely loyal to both parents and refuse to have an opinion of either parent’s motives or actions. believe that the children have not been personally blamed for the conflict and that they hope that the trauma will not escalate if they stay out of their parents’ issues while trying to be as obedient as possible.” [27] Mr. Ezurike served subpoenas on his daughter Didi and son Abuchi and called both as witnesses. Didi was clearly uncomfortable in the role of witness in trial between her parents and appeared guarded in her responses. She did say however that money and bill payments were the main topic of arguments between her mother and father. Abuchi seemed more comfortable than his sister and was very diplomatic. He credited both of his parents approximately equally for driving him to his various activities and for paying expenses relating to those activities. [28] The parties have reason to be proud of their four children. Judging from their evidence, the report of Ms. Simms and what observed of Abuchi and Didi while giving their evidence, all four children are intelligent, well mannered and respectful of their parents. Abuchi and Nnkem in particular, are also very accomplished athletes. Their involvement in school, soccer and other activities keep them busy just about everyday. [29] The Petitioner and Respondent are both accomplished in their own right. Since immigrating to Canada over thirty years ago the Respondent has had successful career in the federal public service from which he is now retired. The Petitioner since coming to Canada approximately 19 years ago has learned to speak English fluently, has obtained two university degrees and now has career as social worker. She has accomplished all of this while raising four children. [30] It is regrettable that it has become necessary for the Court to determine the custodial arrangements for Nnkem and Abuchi. However, there is considerable disagreement between their parents with respect to the children and neither Nnkem nor Abuchi have expressed preference as to where they wish to live. There is little reason to believe that the parties will ever be able to co-parent in spite of the fact that their children are all teenagers. [31] The Petitioner is 41 years old. Generally she works Monday to Friday from approximately 8:15 in the morning to approximately 4:30 in the afternoon. She says that her hours can be flexible. For example, she can work earlier in the day and leave earlier in the afternoon and use overtime to obtain time off work. [32] Presently the Petitioner lives in three bedroom apartment in Lower Sackville approximately ten minutes walking distance from the children’s school. The parties’ two older daughters stay with her in her apartment when they are not attending university in Wolfville. Abuchi and Nnkem are also with her each week from Monday to Thursday. [33] accept her evidence that throughout the lives of the children she has been primarily responsible for their care. She cooked the majority of their meals, purchased their clothes, maintained the family’s home, did the laundry and took the children to most of their appointments. She attended most of the children’s parent-teacher meetings. When she was attending university and the children went to daycare, the majority of the time she transported the children to the daycare even when that involved taking public transit when it could more easily have been done by the Respondent with the family car. [34] The focus of her evidence was on what she felt was best for the children. She believes that the current interim arrangement is difficult on the children. It sometimes causes difficulty with homework when they leave their school books at the other parent’s residence. She is concerned about the children being left unattended for extended periods of time during the weekend particularly during the weekend nights when they are often in bed and their father is not at home. This is particularly troublesome to her given that it appears from the evidence that their father cannot be reached when he is driving his cab because he does not have cell phone or radio in his car. [35] The Petitioner expressed concern about the Respondent’s inappropriate language around the children and how he portrays her to them. find that the Respondent has discussed these divorce proceedings with the children openly, has involved them far too much in the divorce process and speaks disparagingly of their mother in their presence. [36] It is upsetting to the Petitioner as well that the Respondent does not think it is necessary to celebrate the children’s birthdays and does not buy them Christmas gifts. She gave as an example Christmas, 2005 when the Respondent did not buy the children gifts, put up Christmas tree or other decorations or provide them with any kind of Christmas dinner. Prior to the parties’ separation it has been the Petitioner who celebrates such occasions with the children. [37] She says, and believe, that she continues to buy the children’s clothes as well as such items as shaving supplies for Abuchi and other personal items for both children. [38] She believes that the children do not receive proper meals while with their father. Now that the parties are separated it appears that frequently Abuchi and Nnkem prepare their own meals. [39] The Respondent is 65 years of age and retired. He drives taxi from time to time. He was very vague as to when he actually worked as taxi driver but insisted that he never worked during the weekend. The evidence would suggest otherwise. [40] In June of 2005 the Respondent moved with the two younger children back into the matrimonial home. At that time its reconstruction was far from complete. The matrimonial home, according to the parties’ son, is approximately half hour walk from the Petitioner’s apartment. [41] The Respondent’s evidence all too frequently gravitated to what he considered to be his wife’s transgressions and issues relating to money. The Respondent was reminded on numerous occasions by the Court that his evidence and submissions should relate to what he considered to be in the children’s best interests and what custodial arrangements would best suit their needs. In spite of those reminders his evidence and his questions directed to other witnesses continued to stray into the fields of finance and marital fault. When he did speak of the children he rarely if ever spoke of their physical or emotional needs but rather emphasized that they will achieve their full athletic and academic potential only under his guidance. [42] On summation he asked that the Court disregard the conclusions of Ms. Simms in her report. He felt that because of what he considered to be inaccuracies and assumptions made by Ms. Simms and because she conducted interviews of the children at their mother’s home, that her conclusions should be given no weight. He also did not feel that she went far enough in trying to determine the children’s wishes and that her report went beyond the scope of the Court’s order in that she included in her report recommendations regarding the children’s ongoing custody. [43] The Court did not delegate to Ms. Simms the task of determining what is in the children’s best interests. Rather, Ms. Simms was asked to determine the views of the children with respect to their living arrangements and she testified that notwithstanding the wording of the Court’s order, she generally provides the Court with recommendation based on her interviews. Her conclusions and reasons are just one of many factors that the Court takes into account when determining what is in the children’s best interests. find no fault in the way that Ms. Simms conducted her interviews with the children. She felt that with children what is important is to make them as comfortable as possible before soliciting their views. Being at one of their homes provided them with that comfort. She was satisfied that the children’s responses were not in any way influenced by the proximity of their mother and it should be noted that neither of the children expressed any preference to Ms. Simms. [44] After having considered section 16 of the Divorce Act and all of the evidence I have come to the conclusion that it would be in the best interests of the children to be in the custody and primary care of their mother. have come to that conclusion for the following reasons: 1. Until the parties’ separation the Petitioner has been the primary caregiver to the children. It was she who bought their clothes, prepared their meals, cleaned their laundry, took them to their various appointments and cared for them when they were infants and throughout their adolescent years. Even since the parties’ separation she has continued to purchase much of their clothing and personal items. That is not to say that the Respondent has not also purchased such items but not to the extent of the Petitioner. She, much more than the Respondent, is in tune with what the children require. 2. The Petitioner appears to have a stronger emotional bond with the children. In addition to meeting their physical needs, the Petitioner has shown greater concern than has the Respondent for the emotional development of their children. The Respondent seems emotionally distant from his children and seems to lack any appreciation for how his conduct may adversely affect his children emotionally or psychologically. 3. The Respondent has, throughout the parties’ marriage, been physically, emotionally and verbally abusive to the Petitioner and much of this abuse has taken place in front of the children including when they were very young children. He has attempted to control and manipulate his wife through threats and physical violence. The breakdown of their marriage resulted in part from the Respondent’s inability to accept that his wife wanted to have interests outside of the home. Rather than encourage and support his wife in her efforts to obtain an education and career of her own he grew resentful and made it as difficult as he could for her to achieve her goals. While there is no evidence that he has been physically abusive to his children, there is evidence that he has also tried to control them through threats and intimidation. The Respondent had three daughters with his wife from his first marriage. When he suspected his wife of infidelity he abandoned her and his then three infant children (then aged five years, four years and eight months) and thereafter provided his former wife with virtually no financial support or assistance in the raising of the children. He still appears to have little appreciation for just how callous he was to his first family. 4. The Respondent appears incapable or at least unwilling to put the children’s needs before his own. During the course of the trial numerous examples of this were presented. To determine whether he should call either of his older daughters as witnesses, he provided them with printed questionnaire for them to complete. The top of the form read: “Your comments below is (sic) required to help establish the roots of the problems in the family.” At the conclusion of the questionnaire they were to sign the form below the sentence: “I verily believe, to be (sic) best of my ability and knowledge, the above to be statements of the facts as observed them.” He served subpoenas on Didi and Abuchi to require their attendance at the trial. In spite of the Court’s urging not to involve the children he called both of them as witnesses. Even when Didi displayed considerable discomfort, he continued to ask her questions. 5. The Respondent regularly involves the children in adult issues as evidenced by the questionnaire form and his insistence that they testify at the trial. Further, he has shared with the children his belief that their mother belongs to an “underground drug organization” and cult (none of which he could prove). He has also shared with the children his belief that their mother has been having an extra-marital affair. 6. The Petitioner is much more likely than the Respondent to encourage the children to have contact with the other parent. When the parties first separated the Respondent did not allow the two younger children to have contact with their mother. Since then there has been at least two occasions when the Respondent took one of the children on weekend soccer trip and left the other alone rather than invite the Petitioner to have the care of that child. During his evidence he said that his wife was not interested in meeting the children’s needs and during his summation he said that she was too busy with her “selfish, greedy lifestyle” to have custody of the children. In his summation he proposed that if he was granted custody of the children their mother should have access to them only one weekend month. Throughout these proceedings the Petitioner has proposed that the Respondent have reasonable access to the children on alternate weekends as well as during the week provided such access did not interfere with their ability to complete their homework. 7. For all the reasons stated above, the Petitioner would appear to provide better role model for the children than the Respondent. [45] I am aware that whereas the Respondent is retired he might have more time available to spend with the children. That alone however does not outweigh all the other considerations. Both parties have the financial means to contribute to the support of the children and how that obligation will be shared will be determined at later date. CONCLUSION [46] In conclusion, the Petitioner shall have custody and primary care of Abuchi and Nnkem. [47] Notwithstanding the Respondent’s shortcomings, he is the children’s father and can play an important role in their upbringing. He has been enthusiastic in his encouragement of their athletic endeavours and has stressed to them the importance of excelling academically. He will however have to learn how to put the children’s needs before his own and put the differences that he has with his wife behind him. [48] Because he is retired he has time to spend with the children and the Petitioner is open to that possibility. He shall therefore have reasonable access to the children including access to the children every second weekend from Friday after school to the following Sunday at approximately 7:00 p.m.. In addition, he shall have access to the children one weekday evening from after school until approximately 8:00 p.m. on day to be agreed upon by the parties and provided such access does not interfere with their ability to complete their homework assignments. In addition, with the consent of the Petitioner, he may spend additional time with the children in order to ensure their attendance at their various soccer games, practices and tournaments provided such access does not interfere with the Petitioner’s relationship with the children. It is important to the children and their parents too that they continue to excel at soccer. The Respondent can play an important role in ensuring that the children get to all of their practices and games on time by making himself available to drive the children during the week when it might be less convenient for the Petitioner to do so given her possible work related responsibilities. If the children’s success is as important to the Respondent as he would have the Court to believe, he should welcome this opportunity. [49] The parties’ time with the children during the children’s Christmas vacation from school shall be shared approximately equally. If the parties are unable to agree on the specifics of such access am prepared to hear their proposals and make ruling. [50] The Respondent will also have such other access as the parties agree to from time to time. [51] am prepared to hear both parties on the issue of costs after the evidence on all corollary issues has been heard.

Custodial arrangements for the parties two youngest children (aged 15 and 13), who currently lived with the father the majority of the time, were at issue. The marriage had been traditional, with the wife being the primary caretaker of the children. Both children were heavily involved in sporting activities and the father felt that since he was retired, he would be better able to ensure their attendance at various games and practices. The mother, who had recently commenced employment as a social worker, felt that the current interim arrangement was difficult for the children in that they would forget their school books at the other parent's residence and were sometimes left alone for extended periods at the father's residence. Children placed in the custody and primary care of the mother; until the separation, the mother had been the primary caretaker of the children and she appeared to have a stronger emotional bond with them; the father had been physically, emotionally and verbally abusive to the wife throughout the marriage and seemed incapable of putting the children's needs above his own; and the mother was much more likely than the father to encourage the children to have contact with the other parent. Although the father was retired and might have more time to spend with the children, this did not outweigh all of the other factors.

d_2006nssc73.txt

LANE J.A. INFORMATION 36870442 2006 SKPC 02 IN THE PROVINCIAL COURT OF SASKATCHEWAN AT SASKATOON BETWEEN: HER MAJESTY THE QUEEN AND DEREK J. MADIGAN V. Adamko for the Crown J. Fairbrother for the Accused January 10, 2006 D.A. LAVOIE, PCJ JUDGMENT [1] The accused stands charged as follows:1) on or about the 23rd day of January, A.D. 2004 at or near Saskatoon, Saskatchewan did while his ability to operate a motor vehicle was impaired by alcohol or a drug have the care or control of a motor vehicle contrary to section 255(1) and section 253(a) of the Criminal Code. 2) on or about the 23rd day of January, A.D. 2004 at or near Saskatoon, Saskatchewan did 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 care or control of a motor vehicle contrary to section 253(b) of the Criminal Code. [2] The trial of this matter evolved over an extended period of time. The Crown called all its evidence on the first date and the matter was adjourned over two lengthy adjournments, at the request of defence, for the purpose of canvassing the possibility of calling an expert in relation to the neurological condition of the accused. Defence eventually called no evidence and the matter proceeded to closing arguments. [3] Defence raised number of issues which are summarized as follows: 1) Since the vehicle was inoperable as result of an accident, with no risk of setting it in motion, does the evidence prove it was vehicle as contemplated by the Criminal Code for the purposes of care and control set forth in the above enumerated charges? 2) Did the police officer have reasonable and probable grounds for making blood sample demand pursuant to s. 254(3)(b) of the Code? 3) Was the demand pursuant to s. 254(3) made “forthwith or as soon as practicable” as contemplated by the Criminal Code? 4) Were the accused’s s. 10(b) Charter rights to counsel infringed? 5) If any of the above issues are determined in favour of the accused, should the court grant the remedy of exclusion of the Certificate of Analysis as requested by the defence? [4] The following is summary of the evidence forthcoming from the witnesses. [5] At about a.m. on January 23, 2004, while driving home, D.R. came across vehicle facing north in the west ditch of Boychuk Drive and Briarwood Road in the City of Saskatoon. D.R. immediately called 911 emergency line on his cell phone and walked to the vehicle that had considerable damage to it. The accused was the lone occupant, seated in the driver’s seat, with his seat belt on. The headlights of the vehicle were on and D.R. couldn’t open the driver’s door. Since there was fresh snowfall, the only tracks D.R. noticed were one set of skid marks from the south traveling north on the roadway and leading to the accused’s vehicle, plus his own footprints. D.R. felt the accused was at first unconscious, but regained consciousness. The accused cursed at D.R., told D.R. to get out of his car and then turned the ignition key in an attempt to start the engine of the vehicle. The ambulance personnel arrived at the scene within couple of minutes of D.R. making the 911 call. [6] R.W., paramedic with M.D. Ambulance with at least 13 years’ experience, testified to receiving dispatch call at 3:12 a.m. and arriving at the scene at approximately 3:17 a.m. He observed the accused had an abrasion to the left side of his head and complained of pain to his head and neck. The attendant immediately went into dealing with possible spinal injury and immobilized the accused, eventually putting him on backboard for immediate transport to Royal University Hospital. [7] R.W. also noticed the accused’s speech was slurred, he appeared quite confused, his breath smelled of alcohol and he admitted to having consumed alcohol. R.W. stated, transcript p. 31, lines 3: “...his actions and his speech indicated to me that he was intoxicated.” As result, R.W. conveyed his concerns of alcohol consumption and possible intoxication to Officer Kiesman of the Saskatoon Police Service, who had arrived on the scene. [8] They were at the scene approximately 21 minutes and left for the hospital at 3:38 a.m. Upon being asked “And your assessment was that this person needed to be taken to the hospital?”, paramedic R.W. answered “Yes, absolutely.” [9] Officer A. Kiesman testified to receiving dispatch call at approximately 3:11 a.m. and arrived at the scene at 3:21 a.m. He observed what appeared to be single motor vehicle accident. The accused’s vehicle was significantly damaged, appearing to have struck and destroyed light standard. Upon being asked if the vehicle was running or operable, he answered “...the vehicle definitely was not operable, just due to ...due to the damage that had sustained on the driver’s rear half of the vehicle. The rest of the vehicle seemed to be in decent shape.” [10] Of significance is that Officer Kiesman had known paramedic R.W. for some 10 years as he himself had been an Emergency Medical Technician for four years prior to becoming police officer. He had ridden with paramedic R.W. and had some experience in dealing with trauma victims at motor vehicle accidents. [11] He immediately spoke to paramedic R.W. who advised him “...the person that was occupying the driver’s seat of the vehicle was extremely intoxicated at that time.” He went to the driver’s door, saw the accused in the driver’s seat, observed he was very lethargic and there was very strong odour of beverage alcohol emitting from the vehicle. He watched the emergency personnel extricate the accused from the vehicle and put him on spine board. He also noticed the accused had the car keys in his hand. [12] Officer Kiesman then remained with the accused and observed the following further signs of impairment in the ambulance on the way to the hospital: 1) the accused had very glassy eyes; 2) he was very disoriented and was speaking in very slurred tone; 3) there was strong smell of alcohol from his breath; 4) Officer Kiesman was dressed in police uniform, yet the accused asked him twice who he was. [13] When the ambulance attendants stated to him that he was driving vehicle, he denied driving vehicle. In addition, he stated he had been at staff party at Shock Waves Nightclub. [14] At the hospital he was taken to separate trauma room, remained totally immobilized on spine board, and was attended to by number of physicians. They arrived at the hospital at approximately 3:52 a.m. and at approximately 4:03 a.m. Officer Kiesman came to the following conclusions: 1) that based on the fresh tracks in the snow and the accused still in the driver’s seat, the accident had occurred no more than 10 to 15 minutes before his dispatch call of 3:11 a.m.; 2) that based on the accident scene, information received and his observations of the accused, he believed he had reasonable and probable grounds to make demand on the accused; 3) that based on the accused’s condition of being immobilized and “not in any condition to provide any breath samples at this point in time,” and in consultation with Officer Baillargeon, that he should make blood sample demand rather than breath demand.” [15] At 4:03 a.m. he advised the accused he was being charged and read him his rights to counsel and warning from prescribed card. The accused indicated he understood and wanted to speak to lawyer. He then, reading from card, made blood sample demand pursuant to s. 254(3)(b) of the Code. Officer Baillargeon also asked him if he understood the blood sample demand, to which he replied yes. [16] At 4:12 a.m. Officer Kiesman phoned the accused’s mother to get the name and phone number of lawyer. However, that number resulted in contacting an answering service. The officer re-contacted the mother to get second lawyer’s name and phone number. At 4:23 a.m. the phone was given to the accused and he spoke to lawyer in private until 4:30 a.m. The accused did not ask for any further contact with lawyer. At approximately 4:31 a.m. physician took two samples of blood from the accused. The police officers left the hospital at 4:40 a.m. with the understanding the accused was being held for observation. The Law and Analysis Care and control of an inoperable vehicle [17] It is clear from the evidence that the accused’s vehicle was inoperable and immovable due to the damage from the accident and its location in the ditch. From this fact, defence raised the narrow but important issue to be decided as to whether person can be in the “care or control of motor vehicle” when there is no risk that the vehicle in question can be put in motion so that it can become dangerous to the public. S. 258(1)(a) establishes presumption of “care and control” as follows: 258. (1) In any proceedings under subsection 255(1) in respect of an offence committed under section 253 or in any proceedings under subsection 255(2) or (3), (a) where it is proved that the accused occupied the seat or position ordinarily occupied by person who operates motor vehicle, vessel or aircraft or any railway equipment or who assists in the operation of an aircraft or of railway equipment, the accused shall be deemed to have had the care or control of the vehicle, vessel, aircraft or railway equipment, as the case may be, unless the accused establishes that the accused did not occupy that seat or position for the purpose of setting the vehicle, vessel, aircraft or railway equipment in motion or assisting in the operation of the aircraft or railway equipment, as the case may be; [18] The court read numerous decision in relation to the same, including: R. v. Saunders, 1967 CanLII 56 (SCC), [1967] C.C.C. 278 (S.C.C.) R. v. Ford 1982 CanLII 16 (SCC), [1982], S.C.R. 231 (S.C.C.) R. v. Toews (1985), 1985 CanLII 46 (SCC), 21 C.C.C. (3rd) 24 (S.C.C.) R. v. Penne (1990), 1990 CanLII 88 (SCC), 59 C.C.C. (3rd) 344 (S.C.C.) R. v. Wren (2000), 2000 CanLII 5674 (ON CA), 47 O.R. (3d) 544 (C.A.) R. v. Ferrier, [1996] A.J. No. 779 (P.C.) R. v. Twigeon, [2002] S.J. No. 585 (Prov. Ct.) R. v. Lloyd, [1988] S.J. No. 216 (C.A.) R. v. Buckley, 2002 SKQB 281 (CanLII), [2002] S.J. No. 409 (Q.B.) R. v. Shuparski (2003), 2003 SKCA 22 (CanLII), 232 Sask. R. (C.A.) R. v. Sherbrook (1998), 1998 CanLII 13896 (SK QB), 164 Sask. R. 183 (Q.B.) R. v. Pincemin, 2004 SKCA 33 (C.A.) (CanLII) R. v. Denis, [2000] N.S.J. No. 57 (C.A.) R. v. Burbella, 2002 MBCA 106 (CanLII), [2002] M.J. No. 355 (C.A.) R. v. Schnell, [2003] S.J. No. 617 (C.A.) [19] In R. v. Burbella, supra, the Manitoba Court of Appeal at paragraph 22 summarized all the relevant Supreme Court decisions and other cases as follows: In my opinion, the Supreme Court in its decisions has been consistent that danger is an essential element of care or control. Only in the case where the presumption applies and care or control is conclusively deemed will the absence of danger not afford defence. In many instances the circumstances themselves will establish the danger. However, even where the accused establishes that he did not have the intention to set the vehicle in motion, evidence of acts involving some use of the vehicle which could accidentally cause it to become dangerous, whether by setting the vehicle in motion accidentally or causing some other form of danger, will establish care or control. [20] This proposition is also consistent with the Saskatchewan Court of Appeal in R. v. Shuparski which held that once the accused had rebutted the presumption of “care or control” under s. 258(1)(a), the court then enters the second stage of analysis as set forth in paragraph 40: The evidence in relation to the critical overlap period (12:50 to 2:07 a.m.) establishes only one act by the defendant, namely, the act of sleeping in the reclined driver’s seat. Does the act of sleeping in that position constitute either an “act which involves some use of the [vehicle] or its fittings and equipment” or “some course of conduct associated with the vehicle”? The answer is “yes”. But to constitute the actus reus, the act must satisfy two other requirements. It must “involve risk of putting the vehicle in motion so that it could become dangerous”. Does the act of person sleeping in reclined position in the driver’s seat of vehicle that is stopped, in “park”, the engine off and the keys not in the ignition involve that kind of risk? The answer is clearly no. It follows that during the critical overlap period the defendant performed no acts and no course of conduct that could constitute the actus reus. [21] In R. v. Dennis, supra, the Nova Scotia Court of Appeal at paragraphs 23 and 24 stated the following: 23 In short, nothing in the language used in the authorities dealing with the mens rea and the actus reus of care or control supports the proposition that where an individual is deemed to be in care or control of motor vehicle by virtue of the presumption found in s. 258 of the Criminal Code, in circumstances in which vehicle cannot be moved, the presumption for that reason does not operate. To the extent that the reasoning of Ryan, J.C.C. in Dairou, supra, can be said to support such conclusion, we do not agree with it. As Dickson, C.J.C. said for the court in R. v. Whyte (1982), 1988 CanLII 47 (SCC), 42 C.C.C. (3d) 97 at pp. 109-110: .. If an accused does not meet this requirement [ie. of proving the absence of intent to set the vehicle in motion] the trier of fact is required by law to accept that the accused had care or control and to convict. but of course it does not follow that the trier of fact is convinced beyond reasonable doubt that the accused had care or control of the vehicle ... 24 We agree with Wakeling, J.A. in Lloyd, supra, that there is nothing in Toews, supra, which tempers or modifies the position taken by the Supreme Court of Canada in Saunders, supra. We endorse, as did Wakeling, J.A., the passage found currently in Martin’s Annual Criminal Code 2000 at p. 422: Motor vehicle The decision of the Supreme Court of Canada in R. v. Saunders, 1967 CanLII 56 (SCC), [1967] C.C.C. 278, C.R.N.S. 249, that the definition of motor vehicle in s. contemplates kind of vehicle, not whether vehicle is actually operable or effectively functionable, now renders irrelevant all the previous decisions on when motor vehicle is motor vehicle in spite of internal or external conditions causing malfunctioning or immobilization of the vehicle. [22] Lastly, in R. v. Schnell, supra, the Saskatchewan Court of Appeal reviewed the principles it had established in R. v. Shuparski and reviewed Schnell’s dominant or controlling purpose during the critical overlap period, and held “In this case the conviction entered by the trial judge should be restored because Ms. Schnell did not rebut the presumption in s. 258(1)(a).” [23] In the present case, D.B. was the first person to come upon the accident scene. He found the accused alone in the vehicle seated in the driver’s seat. He saw no visible signs of anyone else at the scene. Upon approaching the vehicle he observed the accused turn the ignition key to try and start the vehicle. The ambulance attendance and police officers arrived within few minutes and observed the accused in the driver’s seat and with the vehicle keys in his hand. [24] Lastly, there was no other evidence forthcoming which established the “accused did not occupy that seat for the purpose of setting the vehicle in motion.” The accused has failed to rebut the presumption of care or control under s. 258(1)(a). The court hereby finds the accused was “in care or control” of the motor vehicle pursuant to the presumption in s. 258(1)(a). [25] Having found as such, the authorities establish the court need not enter the analysis of whether the accused had de facto care or control of an inoperable motor vehicle. Reasonable and probable grounds [26] Section 253(3) and (4) of the Criminal Code read as follows: 253.(3) Where peace officer believes on reasonable and probable grounds that person is committing, or at any time within the preceding three hours has committed, as result of the consumption of alcohol, an offence under section 253, the peace officer may, by demand made to that person forthwith or as soon as practicable, require that person to provide then or as soon thereafter as is practicable (a) such samples of the person’s breath as in the opinion of qualified technician, or (b) where the peace officer has reasonable and probable grounds to believe that, by reason of any physical condition of the person, (i) the person may be incapable of providing sample of his breath, or (ii) it would be impracticable to obtain sample of his breath, such samples of the person’s blood, under the conditions referred to in subsection (4), as in the opinion of the qualified medical practitioner or qualified technician taking the samples are necessary to enable proper analysis to be made in order to determine the concentration, if any, of alcohol in the person’s blood, and to accompany the peace officer for the purpose of enabling such samples to be taken. (4) Samples of blood may only be taken from person pursuant to demand made by peace officer under subsection (3) if the samples are taken by or under the direction of qualified medical practitioner and the qualified medical practitioner is satisfied that the taking of those samples would not endanger the life or health of the person. [27] The court is very familiar with the case law in relation to reasonable and probable grounds for making demand pursuant to s. 253(3) of the Criminal Code, including the following: R. v. Lipka, [1989] O.J. No. 2676 (D. Ct.) R. v. McMillan, [1989] P.E.I.J. No. 86 (S.C.) R. v. Walkam, [1999] A.J. No. 1568 (P.C.) R. v. Evans, [1990] B.C.J. No. 921 (Co. Ct.) R. v. Peden, [2004] M.J. No. 118 (Man. Pr. Ct.) R. v. Hunt, 2001 ABPC 150 (CanLII), [2001] A.J. No. 1132 (Pr. Ct.) R. v. Bernshaw, 1995 CanLII 150 (SCC), [1995] S.C.R. 254 (S.C.C.) [28] In Bernshaw, supra, the Supreme Court clearly set out there is subjective and objective element to reasonable and probable grounds. The police officer must subjectively believe he or she has reasonable and probable grounds that the accused is or within the preceding three hours has committed an offence under s. 253. Further, such belief must be based on objective criteria or indicia of impairment. In this case, Officer Kiesman believed the accident had occurred some 10 to 15 minutes before his dispatch call. He viewed the scene of the accident and observed the vehicle damage and the injuries of the accused. He received information of suspected alcohol consumption from the paramedic. He observed numerous indicia of impairment about the accused, including: 1) very glassy eyes; 2) strong smell of alcohol from his breath; 3) the accused was very disoriented and had slurred speech; 4) the accused repeated questions; 5) the accused confirmed consumption of alcohol. [29] Considering the case law, the submissions of counsel and after objectively considering all the indicia of impairment known to the officer, together with the circumstances of the accident itself (which indicated driving error), there can be no doubt the officer had more than reasonable and probable grounds to form the requisite opinion pursuant to s. 254(3) to make a demand for samples of analysis. The totality of the evidence would lead any reasonable person to that conclusion. Officer Kiesman subjectively formed the opinion the accused’s ability to operate motor vehicle was impaired by alcohol. [30] The court must now proceed to the second step of blood demand. Again, both subjective and objective test must be applied. In R. v. Hunt, Daniel, P.C.J., thoroughly canvassed the applicable law. Defence raised the issue Officer Kiesman had not obtained enough information as to the accused’s condition from the medical personnel in relation to obtaining breath sample, and further that he did not make the demand forthwith or as soon as practicable. [31] In relation to the latter issue, suffice it to say, the police officer was sensitive to the immediate concern of the physical well-being of the accused. Though he may have formed his opinion in the ambulance, he wisely waited until medical personnel had made an initial assessment at the hospital before making any kind of demand. Quite frankly, one would have expected him to act in no other way. Law enforcement is important but must clearly wait until the personal well-being of any person being investigated is first dealt with. In the circumstances, the court finds the officer made the demand at the first practical opportunity in relation to the entire investigation. [32] In relation to the blood demand versus sample of breath, at paragraphs 32 and 33 in R. v. Hunt, supra, the court stated: 32 .. The same court held in R. v. Wytiuk at p. 22, that “the words in s. 254(3)(b), ‘by reason of any physical condition of the person...’ give to peace officer wide discretion to determine the practicability or the impracticability of the capability of an accused to provide breath sample.” 33 In R. v. Kuntz, the court confirmed that there is no obligation on police constable to question the attending physician on when an accused person will be released from hospital. The constable may make an independent assessment based on all the circumstances. This view is confirmed in R. v. MacMillan where the court states at page 4: That is not to say, of course, that there might not well exist circumstances, for instance, at the scene of an accident, in which the officer himself might be justified in arriving at the belief, based on his own reasonable observations. [33] In relation to Officer Kiesman personally, the court must be mindful that he had previous experience as an emergency medical technician and would have knowledge of head and spinal injury trauma procedures at the hospital, including time frames involved. [34] I find as a fact he, in coming to his conclusion to make a blood sample demand, considered a number of relevant factors, including time limits to obtain a breath sample, the severity and magnitude of the accident, the potential seriousness of the accused’s head and neck injuries, the need for immediate emergency assessment and length of time it would take to treat the accused and keep him under observation. He believed the accused’s condition was potentially serious and was completely justified in holding that belief. The evidence has proven the accused required immediate and emergent medical attention which made it obviously impractical to put the accused before a breathalyzer instrument within the time limit fixed by the Code. [35] Considering the foregoing, I find Officer Kiesman had reasonable and probable grounds to believe (and in fact did believe) that by reason of his physical condition, the accused may be incapable of providing a sample of his breath, or it would be impracticable to obtain a sample of his breath. All of the requirements of s. 254(3) have been proven beyond a reasonable doubt. Section 10(b) rights to counsel [36] In relation to the same, defence raised the possibility, due to the accused’s physical condition he may not have been able to fully understand his rights or fully exercise them when he in fact spoke to lawyer. The evidence discloses Officer Kiesman made numerous efforts to ensure the accused actually spoke to a lawyer in private. After that, the accused made no further requests whatsoever to further speak to lawyer. Following the principles set forth by the Saskatchewan Court of Appeal in R. v. Leedahl, 2002 SKCA (CanLII), [2002] S.J. No. 14, the evidence clearly establishes the accused was coherent and understood the right to counsel enunciated to him by the police officer. He in fact spoke to lawyer and made no other requests. Further, there was no suggestion that the accused was incapable of understanding his right to counsel or that he was incapable or prevented from acting on his right. To the contrary, the evidence proves the exact opposite. The court finds the accused has failed to demonstrate his s. 10(b) right to counsel was denied or infringed in any way. [37] Having found as above, there is no remedy of exclusion of the Certificate of Analysis, Exhibit P1 in these proceedings. The said Certificate will become full exhibit. It certifies blood alcohol reading of 221 milligrams percent. [38] Accordingly, the court finds the accused guilty of count 2, being care or control with a blood alcohol content in excess of .08. [39] As to count 1, care or control while impaired, the evidence clearly does not prove impairment beyond a reasonable doubt, as envisaged by the case law, including: R. v. Landes (1997), 1997 CanLII 11314 (SK QB), 161 Sask. R. 305 R. v. Huot (No. 3) (2001), 2001 CanLII 368 (SK PC), 209 Sask. R. 171 (Prov. Ct.) R. v. Stellato (1993) 1993 CanLII 3375 (ON CA), 12 O.R. (3d) 90 (C.A.), aff’d 1994 CanLII 94 (SCC), [1994] [40] In addition, Crown counsel indicated they had no submission to make in relation to this count. The court finds the accused not guilty of count 1, being impaired care or control.

The accused is charged with care or control of a motor vehicle while impaired contrary to s. 255(1) and s. 253(a) of the Criminal Code and care or control while over .08 contrary to s. 253(b) of the Code. HELD: There is no remedy of exclusion of the Certificate of Analysis. Accordingly, the accused is guilty of care or control while over .08. The evidence does not prove impairment beyond a reasonable doubt. 1) It is clear from the evidence that the accused's vehicle was inoperable and immovable due to the damage from the accident and its location in the ditch. The defence raised the issue of whether a person can be 'in care or control of a motor vehicle' when there is no risk that the vehicle in question can be put in motion so that it can become dangerous to the public. The Court reviewed the cases. The first person to come upon the accident scene found the accused alone in the vehicle seated in the driver's seat. He saw no visible signs of anyone else at the scene. Upon approaching the vehicle, he observed the accused turn the ignition key to try and start the vehicle. There was no other evidence which established that the 'accused did not occupy that seat for the purpose of setting the vehicle in motion'. The accused has failed to rebut the presumption of care or control under s. 258(1)(a) of the Code and the Court finds that the accused was in 'care or control' of the motor vehicle. 2) Considering the case law and after objectively considering all the indicial of impairment known to the officer, together with the circumstances of the accident itself (which indicate driving error) there can be no doubt the officer had more than reasonable and probable grounds to form the requisite opinion pursuant to s. 254(2) of the Code to make a demand for samples of analysis. 3) The officer was sensitive to the immediate concern of the physical well-being of the accused. Though he may have formed his opinion in the ambulance, he wisely waited until medical personnel had made an initial assessment at the hospital before making any kind of demand. In the circumstances, the Court finds the officer made the demand at the first practical opportunity in relation to the entire investigation. 3) The officer, in coming to his conclusion to make a blood sample demand, considered a number of relevant factors, including time limits to obtain a breath sample, the severity and magnitude of the accident, the potential seriousness of the accused's head and neck injuries, the need for immediate emergency assessment and length of time it would take to treat the accused and keep him under observation. He believed the accused's condition was potentially serious and was completely justified in holding that belief. The evidence has proven the accused required immediate and emergent medical attention which made it obviously impractical to put the accused before a breathalyzer instrument within the time limit fixed by the Code. The officer had reasonable and probable grounds to believe that by reason of his physical condition, the accused may be incapable of providing a sample of his breath, or it would be impracticable to obtain a sample of his breath. All the requirements of s. 254(3) of the Code have been proven beyond a reasonable doubt. 4) The evidence discloses that the police officer made numerous efforts to ensure the accused actually spoke to a lawyer in private. After that, the accused made no further requests whatsoever to further speak to a lawyer. Following the principles set forth by the Saskatchewan Court of Appeal in R. v. Leedahl, 2002 SKCA 5, the evidence clearly establishes the accused was coherent and understood the right to counsel enunciated to him by the police officer. He in fact spoke to a lawyer and made no other requests. Further, there was no suggestion that the accused was incapable of understanding his right to counsel or that he was incapable or prevented from acting on his right. To the contrary, the evidence proves the exact opposite. The Court finds the accused has failed to demonstrate his s. 10(b) right to counsel was denied or infringed in any way.

5_2006skpc2.txt

1991 S.H. No. 80452 IN THE SUPREME COURT OF NOVA SCOTIA TRIAL DIVISION IN THE MATTER OF: An Application for an Order in the nature of Habeas Corpus and for an Order in the nature of Certiorari in aid thereof pursuant to the provisions of the Liberty of the Subject Act, R.S.N.S. 1989, C. 253 and Rule 58 of the Civil Procedure Rules; BETWEEN: SUSAN ADSHADE Applicant and HER MAJESTY THE QUEEN, in the Right of the Province of Nova Scotia, and His Honour Judge Donald J. MacDonald Respondent HEARD BEFORE: The Honourable Mr. Justice Gordon A. Tidman PLACE HEARD: Halifax, Nova Scotia DATE HEARD: January 17, 1992 DECISION DATE: January 23, 1992 (Orally) COUNSEL: Duncan R. Beveridge for the Applicant William F. Kaulback, Q.C. for the Respondent 1991 S.H. No. 80452 IN THE SUPREME COURT OF NOVA SCOTIA TRIAL DIVISION IN THE MATTER OF: An Application for an Order in the nature of Habeas Corpus and for an Order in the nature of Certiorari in aid thereof pursuant to the provisions of the Liberty of the Subject Act, R.S.N.S. 1989, C. 253 and Rule 58 of the Civil Procedure Rules; BETWEEN: SUSAN ADSHADE Applicant and HER MAJESTY THE QUEEN, in the Right of the Province of Nova Scotia, and His Honour Judge Donald J. MacDonald Respondents TIDMAN, J. (Orally) This is an application for an Order in the nature of Habeas Corpus and an Order in the nature of Certiorari in aid thereof. The applicant was remanded into custody upon her committal for trial on charge of first degree murder following preliminary inquiry into the charge. The applicant, through her counsel, contends that the Provincial Court judge erred in committing the applicant for trial and that her detention is, therefore, unlawful. At the conclusion of the hearing of evidence at the preliminary inquiry the Provincial Court judge, in committing the applicant for trial, stated: "I find here that there is evidence adduced by the Crown as far as the killing of Mr. Adshade was done by Mark Dickie. I'm satisfied that Mrs. Adshade was there at the time. There's evidence adduced by the Crown that the matter had been discussed by Mrs. Adshade and Mark Dickie prior to the event. There's evidence by the Crown that Mark Dickie was paid money by Mrs. Adshade, or given money, after the event and there's fair amount of circumstantial evidence as to the cleaning up of the apartment after the event. This evidence would have to be assessed and dealt with by trier of fact. It is my opinion that based on all of the evidence before me that the evidence adduced by the Crown here, yesterday and today, that properly instructed jury may find Mrs. Adshade guilty of the offence charged, and I'm satisfied that there is sufficient evidence to commit her for trial on the charge before the Court, namely that on the 29th day of April, 1991, at or near Truro in the County of Colchester, that she did commit first degree murder on the person of Leon Adshade, contrary to Section 235(1) of the Criminal Code, and therefore pursuant to Section 548 of the Criminal Code, hereby commit Mrs. Adshade for trial ..." Mr. Beveridge submits that there was no evidence before the learned judge upon which to properly base his conclusion. As preliminary argument Mr. Beveridge contends that the scope of review of the committing judge's decision by this court is broader in this type of application, i.e. Habeas Corpus with Certiorari in aid, than in an application for Certiorari relief alone. He contends the scope is broadened by the provisions of the Liberty of the Subject Act, R.S.N.S. 1989, c.253 and the uncodified common law relating to habeas corpus relief. He concedes, however, that the test to be applied in this application, which may, in his view, be broader than the test applied in an application for "certiorari" alone, is the test applied by MacDonald, J.A. in R. v. Lapierre (1976), 15 N.S.R. (2d) 361 (A.D.) where he states: "The day has long gone when mere scintilla of evidence will justify committal for trial; thus on an application for criminal habeas corpus with certiorari in aid agree, as stated earlier, with Evans, J.A. in the Botting case, that the reviewing court should examine the evidence taken on the preliminary inquiry to determine its sufficiency to deprive the Applicant of his liberty. The evidence should be found sufficient if the reviewing court can say that on such evidence jury, properly instructed and acting judicially could convict; any doubt on this question must be resolved in favour of the Crown. In so examining the evidence the superior court is not really substituting discretion for that of magistrate but rather is determining whether the magistrate applied proper principles in ordering committal for trial." For the purposes of this application it is not necessary to decide whether there is such distinction in the tests to be applied as suggested by Mr. Beveridge. In my view, the issue before the court may be resolved by using what Mr. Beveridge suggests may be the broader test as expressed by MacDonald, J.A. Mr. Beveridge submits that the test the committing judge indicated he applied, i.e. that upon the evidence adduced before him "a properly instructed jury may find Mrs. Adshade guilty of the offence charged", is not the proper test as verbalized by MacDonald, J.A. in R. v. Lapierre. He argues that in applying the wrong test the learned judge misdirected himself and thus wrongfully committed the applicant. In reviewing a decision of the committing judge, with respect to Mr. Beveridge, the question is not whether the judge correctly verbalized the test to be used but rather whether the evidence before the judge supported the conclusion to commit for trial. review of the transcript of the evidence adduced before the learned judge at the preliminary enquiry shows evidence of the following circumstances: (1) Mark Dickie murdered Leon Adshade; (2) At the time, the accused and Mr. Dickie were friends or acquaintances; (3) couple of days before the murder, Mr. Dickie brought and left baseball bat at the accused's apartment; (4) Mr. Dickie brought knife to the accused's apartment; (5) couple of days before Mr. Dickie killed Leon Adshade at the accused's apartment by hitting him on the skull with the baseball bat and stabbing him with the knife at the accused's apartment, he discussed with the accused the idea about hitting Leon Adshade with the baseball bat; (6) That the deceased was the estranged husband of the applicant; (7) Mr. Dickie killed Leon Adshade and placed his body in the accused's bedroom closet when only they were present in the accused's apartment; (8) That Mr. Dickie left the accused's apartment and later that evening or early the following morning returned to the accused's apartment, removed the body and cleaned up the apartment with rag and mop; (9) That the accused went to party that evening returning home at 5:00 a.m. on the following day; (10) That while at the party Mr. Dickie called to speak to the accused and she temporarily left the party; (11) That the day following the murder the accused, in the presence of Mr. Dickie, cleaned the kitchen floor with javex, scrubbed the bench upon which Leon Adshade was seated in the kitchen when he was struck with the baseball bat and stabbed with the knife; (12) The bench was later found to be stained with blood which could have come from the deceased; (13) The day following the murder Mr. Dickie obtained from Block cheque made payable to the accused. On the same day Mr. Dickie endorsed the cheque in the deceased's name and gave it to the accused at credit union where the accused cashed it and gave portion to Mr. Dickie who says she had not previously borrowed money from him; (14) That death could have been caused by either the blow to the head or the stabbing. Section 231(2) of the Criminal Code provides that murder is first degree when it is planned and deliberate. Section 231(3) provides: "Without limiting the generality of subsection (2), murder is planned and deliberate when it is committed pursuant to an arrangement under which money or anything of value passes or is intended to pass from one person to another, or is promised by one person to another, as consideration for that other's causing or assisting in causing the death of anyone or counselling another person to do any act causing or assisting in causing that death." Section 21(1) provides: 21(1) Every one is party to an offence who (a) actually commits it; (b) does or omits to do anything for the purpose of aiding any person to commit it; or (c) abets any person in committing it." Mr. Beveridge submits that: (1) there is no evidence of planning on the part of the applicant either through money arrangement or otherwise, as there must be in order to commit for trial; and (2) there is no evidence that the applicant actually committed the offence charged or aided or abetted Mr. Dickie in committing the offence charged, again as there must be in order to commit for trial. In dealing with the first submission, agree with Mr. Beveridge to the extent that there is no direct evidence of planning on the part of the applicant. finding of planning on the part of the applicant must, therefore, be supported by circumstantial evidence. There is, in my view, evidence of circumstances which could support conclusion of planning, such as previous discussion between Mr. Dickie and the applicant of Mr. Dickie hitting the deceased with baseball bat prior to the killing, bringing and leaving the baseball bat at the applicant's apartment, forcefully striking the deceased over the head with the baseball bat and stabbing the deceased all in the presence of the applicant and the payment of unowed money to Mr. Dickie by the applicant on the following day. Dealing with Mr. Beveridge's second submission, again agree that if, on the evidence, the applicant was simply passive spectator to the crime, there would be no basis for the committal. However, there is again, in my view, evidence which would support conclusion that the applicant aided or abetted Mr. Dickie in committing the offence charged. There is evidence that the applicant, two days before the killing, knew of Mr. Dickie's intention to strike the deceased with the baseball bat, that the baseball bat was brought to her apartment and remained there until used by Mr. Dickie in striking the deceased and that the applicant's estranged husband was killed in her apartment. It may be successfully argued that such evidence is not particularly weighty in support of the learned judge's conclusion. However, the question of weight, as Judge MacDonald apparently concluded, must be left for the jury. In my view, there was evidence before the learned judge upon which a jury, properly instructed and acting reasonably in accordance with those instructions, could convict the accused of first degree murder. Consequently, I would dismiss the application. J. Halifax, Nova Scotia February 5, 1992 1991 S.H. No. 80542 IN THE SUPREME COURT OF NOVA SCOTIA TRIAL DIVISION IN THE MATTER OF: An Application for an Order in the nature of Habeas Corpus and for an Order in the nature of Certiorariin aid thereof pursuant to the provisions of the Liberty of the Subject Act, R.S.N.S. 1989, C. 253 and Rule 58 of the Civil Procedure Rules; BETWEEN: SUSAN ADSHADE, Applicant and HER MAJESTY THE QUEEN, in the Right of the Province of Nova Scotia, and His Honour Judge Donald J. MacDonald Respondents

This was an application for an Order in the nature of Habeas Corpus and Certiorari in aid. The applicant had been charged with the first degree murder of her estranged husband. The judge at preliminary inquiry concluded that there was evidence adduced that the accused had paid money to the man who had killed the victim the day after the killing, that she was involved in cleaning the apartment where the killing took place after the body was removed, and that the accused and the man who killed the victim had discussed the matter prior to the event, and thus there was sufficient evidence upon which a 'properly instructed jury may find...[the accused] guilty...' The appellant contended that the judge had applied the wrong test for committal. Dismissing the application, that the question is not whether the judge correctly verbalized the test, but rather if the evidence supported the committal, and there was, indeed, enough circumstantial evidence upon which a jury, properly instructed and acting reasonably in accordance with those instructions, could convict the accused of first degree murder.

c_1992canlii4682.txt

P. FOLEY QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2010 SKQB 249 Date: 2010 07 14 Docket: Q.B.G. No. 457 of 2007 Judicial Centre: Saskatoon BETWEEN: DR. STAN RUBIN and GLENN ROSS, SAM NOWASELSKI and CANADIAN UNION OF PUBLIC EMPLOYEES, Counsel: Catherine A. Sloan for the plaintiff Andrew M. Mason for the defendants JUDGMENT KEENE J. July 14, 2010 OVERVIEW [1] The plaintiff says that his personal and professional reputation has been seriously damaged by defamatory statements made intentionally and maliciously by the defendants. Dr. Rubin claims these statements were publicly communicated by the defendants by means of notices posted on bulletin boards in the plaintiff’s workplace, by means of mass mailing to all members of the Canadian Union of Public Employees, Local 1975 (“CUPE”) and by means of posting on the CUPE website. The plaintiff seeks damages and costs. [2] I have found the plaintiff has proven that he was defamed. However, I have accepted the defendants’ defence of qualified privilege. [3] have made provisional order for damages. [4] have ordered that none of the parties should receive costs. 2. OVERVIEW OF EVIDENCE [5] The plaintiff, Dr. Rubin, received his Bachelor of Science from the University of Alberta in 1976 and his Doctor of Veterinary Medicine from the University of Saskatchewan in 1980. The plaintiff took four-year post-graduate course in Illinois and received Master of Science in 1984. In 1984, Dr. Rubin started work at the University of Saskatchewan as an assistant professor at the Western College of Veterinary Medicine at the University of Saskatchewan in Saskatoon. He received his full professorship in 1991 at the University of Saskatchewan. Dr. Rubin was appointed director of the Veterinary Teaching Hospital (“the VTH”) at the Western College of Veterinary Medicine at the University of Saskatchewan in Saskatoon in May of 2002. [6] The VTH is full-service animal hospital open to members of the public, operating both large animal clinic and small animal clinic. The VTH also serves as the teaching and research facility for veterinarian students enrolled at the Western College of Veterinary Medicine, University of Saskatchewan. The VTH is staffed with university faculty specialist veterinarians, veterinarian interns and students, and associated staff, including technicians, receptionists and clerks. [7] The VTH operations include approximately 600 faculty, staff and students, an annual budget of $7 million and serve approximately 12,000 members of the public each year. The facility is open to the public 24 hours day, days week, 365 days year. [8] As director of the VTH, Dr. Rubin had comprehensive administrative responsibility for the operation of the VTH, including all fiscal and personnel matters, day-to-day operations, strategic planning, risk management, equipment purchases, complaints from the public, and overseeing the planning and implementation of $20 million renovation to the facility. [9] The defendant, CUPE, is trade union certified to represent some employees of the University of Saskatchewan, including some working at the VTH. In the fall of 2006, CUPE (Local 1975) had approximately 1,400 members. About 100 members of the VTH were CUPE members. [10] The defendant, Glenn Ross, was at all material times the president and chairperson of the grievance committee of CUPE. [11] The defendant, Sam Nowaselski, was at all material times the senior grievance officer of CUPE. [12] Dr. Rubin described the labour relations atmosphere at the VTH at the time he was appointed director in 2002 as “quiet”. The exception was workplace situation involving Pam Bowman, veterinary technician employed by the University of Saskatchewan in the Large Animal Clinic and CUPE member. Ms. Bowman complained of harassment by faculty and co-workers. [13] It appears that Dr. Rubin knew Ms. Bowman on personal basis and considered her to be friend of not only himself, but also his spouse. His evidence was that at one stage Ms. Bowman provided him with gifts. Ms. Bowman and Dr. Rubin also had similar interest in horses. Dr. Rubin testified that for several months in 2002, he would arrive at work to find Ms. Bowman waiting for him in hallway. He would take her into his office to listen to her complaints. She often cried in his office. Dr. Rubin testified that he offered her sympathy and support and felt that he was her advocate. [14] In any event, Ms. Bowman’s concerns proceeded to grievance which was resolved in 2004 by an award from an arbitration board. The award was filed as part of evidence in this trial. am satisfied that upon reading the award that it is clear that the Board of Arbitration determined that there was no evidence that Dr. Rubin engaged in any misconduct towards Ms. Bowman, and indeed Dr. Rubin attempted to act as Ms. Bowman’s advocate. [15] Simply put at this stage, it appears that Dr. Rubin was not only friend of Ms. Bowman, but also supporter of her. It certainly appears that he was not harassing her. [16] Ms. Bowman, who had been out of the workplace, was returned to the workplace in 2005. This was accompanied by coordinated effort by CUPE, the University of Saskatchewan Human Resources Department (“HR”), and the VTH to manage her return to work. This involved three types of meetings: (1) weekly “return to work” meetings involving CUPE, HR, and VTH staff; (2) mandatory “respect for workplace” meetings held at different times to accommodate shift workers; (3) “team-building” meetings to help Ms. Bowman get along with her co-workers. code of conduct for employees was being developed. Dr. Rubin testified that he was involved in all of these efforts with the exception of the team-building meetings. [17] The return to work meetings included, at times, Mr. Ross, Mr. Nowaselski, and Lois Lamon, CUPE’s national representative. [18] Dr. Carol Pond, the head of the discrimination and harassment prevention division of the HR was also involved in the weekly return to work meetings. [19] Dr. Rubin testified that he had an excellent relationship with Mr. Ross during this period. He met for lunch with Mr. Ross once week in order to cultivate good labour relations at the VTH. Dr. Rubin testified that they often discussed Ms. Bowman’s re-entry back into the workplace. [20] Dr. Rubin felt that regardless of his opinions about the advisability of Ms. Bowman’s return to work, he never stopped being supportive of her. [21] Mr. Ross and Mr. Nowaselski were witnesses in this trial. note that nothing in either gentleman’s evidence led me to the conclusion that they were in any way perturbed with Dr. Rubin on personal basis. They appear to have had concerns about his ability to rectify the situation with Ms. Bowman and two co-workers. will comment on that below. [22] Ms. Bowman appears to have kept detailed log from May 31, 2005 to January 31, 2006. The log is quite detailed, but upon reading the log in its entirety, have come to the conclusion that she did not record any ill feelings towards Dr. Rubin. [23] Despite the many meetings and efforts undertaken to get Ms. Bowman back to work, she apparently felt that the process was unsatisfactory. In nutshell it appears she believed that two other unionized employees were harassing her. When put together the evidence of all the witnesses that heard, come to the conclusion that Ms. Bowman could be described as hypersensitize. Dr. Rubin seems to feel that she was overstating her problems and possibly wanted preferential treatment. For example, she seemed to want to do “field” work as opposed to being in the hospital. Apparently accommodating her in that fashion may have caused some difficulties with other employees. Mr. Ross seems to agree that Ms. Bowman appeared to be overly sensitive. [24] On March 21, 2006, CUPE filed notice of grievance with the University of Saskatchewan alleging that Ms. Bowman had been harassed since her return to work. The grievance was drafted by executive members of the union (including Mr. Ross and Mr. Nowaselski), in consultation with their legal counsel and national representative. The grievance alleged: Despite the previous findings of personal harassment by the University, have continued to be harassed in the workplace since my return to work. The administrator of the Veterinarian Teaching Hospital, Dr. Stan Rubin, has not only refused to prevent the harassment but has been an active part of the harassment himself. He has completely failed in his duty to provide an harassment free workplace. Human Resources and the Western College of Veterinary Medicine have similarly failed in their duty and the employer is responsible for the failure of its institutions, departments and agencies. The Union maintains that the employer’s actions are violation of the Collective Agreement, including Article 21, and also constitutes tortious conduct, including intentional and/or negligent interference in my economic relations with the University and intentional and/or negligent infliction of mental suffering on myself. The employer’s actions also constitute violation of its duty to provide safe and healthy workplace as required under the Saskatchewan Occupational Health and Safety Act. [Emphasis Added] [25] The above comments are the subject of this lawsuit. [26] It was essentially the evidence of Mr. Ross that in the course of proceeding with Ms. Bowman’s grievance, the defendants wished to discover evidence and locate witnesses who might support Ms. Bowman’s allegations. In an attempt to find witnesses for an arbitration that was to commence on January 25, 2007, the defendants decided that their union members should be made aware of the grievance and the upcoming arbitration. Accordingly, Mr. Ross posted on October 6, 2006 “Notice Re: Harassment Grievance” with the attached grievance report on eight bulletin boards located in the VTH. [27] The purpose of the notice was to encourage potential witnesses to come forward to CUPE. Since the notice is of importance, repeat the entire notice as follows: The attached grievance filed March 21, 2006 on behalf of CUPE member Pam Bowman raises serious issues with respect to personal harassment in the Western College of Veterinary Medicine and particularly at the Veterinary Teaching Hospital. Ms. Bowman had been returned to work after previous harassment complaint was upheld by the University and following resolution of matters relating to her reinstatement. The Union has worked to try and ensure that Ms. Bowman was able to return to harassment-free, non-toxic workplace environment but was forced to file this grievance when Ms. Bowman experienced renewed personal harassment after her return. You will note the Union is seeking significant remedies in this matter as set out in the grievance. By reply dated September 5, 2006 Barb Daigle, Associate Vice-President (Human Resources) denied the grievance maintaining that there was “no merit to the grievance” and that Ms. Bowman’s and the Union’s complaints were entirely “unfounded and without substance.” We disagree. This case is scheduled to be heard by an Arbitrator commencing January 25, continuing January 26 and from January 29 through February 2, 2007. The Arbitrator will make final and binding decision following the hearing on the merits of the grievance and if the grievance is allowed, on the remedies requested by the Union. The purpose of this notice is to request those who may have information with respect to the harassment of Pam Bowman to contact the following Local 1975 person: Sam Nowaselski (966-7015) or the National Servicing Representative, Lois Lamon at 382-8262. If you do not have specific information with respect to Ms. Bowman, but have experienced personal harassment yourself at the University, please also advise the Union or Ms. Lamon so that the matter may be taken up by CUPE Local 1975. Contact your bargaining agent if you are not member of CUPE and have information on this matter or if you have experienced personal harassment yourself. copy of this notice and the grievance is also on the Local 1975 website [28] Under the terms of the collective bargaining agreement between CUPE and the University (Article 6.3), the University was supposed to have designated certain bulletin boards as union bulletin boards. As of October 6, 2006, this had not been done. [29] The notice was posted by Mr. Ross on behalf of the defendant CUPE at approximately twelve noon on October 6, 2006, which was the Friday before the Thanksgiving weekend. The notice was removed from all the bulletin boards by someone from the University of Saskatchewan apparently on the following Wednesday, October 11, 2006. During the long weekend, the VTH part was open to the public, although the college building itself was locked. [30] In addition, CUPE mailed “mini-newsletter” to all its members on or about October 16, 2006. copy of the grievance was included in the newsletter as well. [31] The mini bulletin was also posted on the CUPE website in mid-October of 2006 in section on the website intended for communication with CUPE members. The page containing the grievance and impugned words ended up in the part of the site reserved for archived newsletters. The notice was removed from the website on or about April 20, 2007. [32] Dr. Rubin in due course received copy of the grievance report and was upset about the wording of Ms. Bowman’s grievance. The suggestion that he was not only allowing harassment to take place but that he was an active participant shocked him. He was quite affected by this and in his view it was completely untrue. He believed he had done everything that he thought he could to prevent the harassment. He had diligently participated in the back to work program. Dr. Rubin felt he was still friend and somewhat of an advocate for Ms. Bowman. [33] Dr. Rubin became upset when he learned the grievance report had been posted to the bulletin boards, and had been distributed to some 1,400 CUPE employees through the mass mailout and was also on the website. [34] Mr. Ross and Mr. Nowaselski testified as to the union’s rationale behind supporting the grievance of Ms. Bowman and the wording of the grievance. Their evidence was that Dr. Rubin as head of the VTH seemed unable to stop what Ms. Bowman reported as ongoing harassment by two fellow CUPE employees. This was despite the fact that lengthy back to work program had been ongoing simultaneously for several months. [35] Dr. Rubin testified that after the grievance was published, he experienced difficulties. He believed his capacity to manage the hospital was diminished considerably. He sensed he lost the respect of the staff. He felt the staff challenged him. He stated that work stopped being fun. [36] He testified that he took stock of the situation and decided he could no longer be director of the VTH. Dr. Rubin resigned as director in the spring of 2007 and returned to the faculty ranks at the University, teaching small animal internal medicine as full-tenured professor. [37] The plaintiff’s evidence was that financially this meant difference of about $6,000 per year. Dr. Rubin conceded that there was less stress in his job as professor. [38] Dr. Rubin appears to have decided to move on from the University in Saskatoon. He felt that he was not popular member of the faculty. He perceived “coolness” from the staff and felt that he was “pariah”. He did not provide any clear evidence as to the basis for these conclusions. This seems to have been personal feeling that he developed as these matters unfolded. [39] At this approximate time, he applied for position as director of veterinary teaching hospital at the West Virginia Technical Institute in the United States. Dr. Rubin was not successful in obtaining that position although he was short listed. [40] However, he responded to an inquiry from “headhunter” and was offered and accepted job at private specialty veterinary practice in Tucson, Arizona. [41] Dr. Rubin described this as lateral move from his faculty position at the VTH. He stated his salary is higher, but he had additional expenses such as disability insurance and group medical insurance for his family. Further, he testified his job security was considerably reduced. Dr. Rubin also testified that his wife, who is qualified veterinarian surgeon, was unable to find work in the United States. However, he did indicate that she had not been in the workplace for family reasons in Saskatoon. She now apparently wishes to resume working. In addition, he paid almost $14,000 in legal fees to facilitate his immigration to the United States. 3. LAW AND ANALYSIS Was the plaintiff defamed? [42] The Supreme Court of Canada recently confirmed the elements that plaintiff must prove in defamation case: [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 ... 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. [Grant v. Torstar Corp., 2009 SCC 61 (CanLII), [2009] S.C.R. 640.] [43] The following excerpt from the grievance is the essence of this claim of defamation: The administrator of the Veterinarian Teaching Hospital, Dr. Stan Rubin, has not only refused to prevent the harassment but has been an active part of the harassment himself. [44] The words accuse Dr. Rubin of refusing to prevent harassment and also of taking an active part in the harassment of Ms. Bowman. The impugned wording is all the more troubling because the plaintiff was the director of the VTH and accordingly, the person ultimately responsible for insuring harassment free workplace. [45] am satisfied Dr. Rubin sincerely believed that he was diligently following the back to work program for Ms. Bowman. Further, find that there is no evidence that Dr. Rubin actively harassed Ms. Bowman. [46] The end result is that the plaintiff has proven that he was cast in negative light by the unfortunate wording circulated in the grievance. Harassment in the workplace is very sensitive topic. The plaintiff was accused of refusing to prevent harassment. He was accused of being an active participant in harassment. These allegations would have had deleterious effect on Dr. Rubin’s reputation not only as director but also as an individual. [47] therefore find that the impugned wording would tend to lower the plaintiff’s reputation in the eyes of reasonable person. [48] Accordingly I find that the plaintiff has proven that he was indeed defamed. [49] However, having found that Dr. Rubin has been defamed does not of course end the matter. must now examine the defences that have been raised by the defendants. Jurisdictional Argument [50] The defendants raised an issue of jurisdiction. This matter has been dealt with by previous fiat of Madam Justice Dovell. concur with the reasoning in that fiat and find that there is no basis for jurisdictional defence. The Defence of Absolute Privilege [51] Absolute privilege is found in certain situations and constitutes defence to defamation. Absolute privilege has been defined as follows: An absolute privilege extends to all statements made by high executive officers acting in the performance of their official duties relating to matters of state. The privilege extends to communications by or between high state officials and to or from such officers involving subordinate officer, if the communication with the latter was made at the request, or pursuant to the authority, of the senior official. high official includes senior officers in the military. An absolute privilege also extends to any communications made during the course of Parliamentary proceedings, or any proceeding of its constituent committees, by members of that body or persons appearing before it. Communications made outside the proceedings of that body, even though made by members of Parliament, are not protected by an absolute privilege. There is an absolute privilege for all those communications made in the course of, or incidental to, the processing and furtherance of judicial and quasi-judicial proceedings. To qualify as quasi-judicial proceeding the tribunal must exercise functions equivalent to those of court of justice. Among the attributes of such tribunal are the ability to adjudicate upon and determine rights between competing litigants, to require attendance at public hearing at which the witnesses testify under oath, to administer fines, impose punishment, render decisions and enforce orders. Such proceedings are also governed by principles of fairness and justice with fixed procedure comparable to that of judicial body. The immunity extends to all those persons participating in the proceedings including the judge, jury, witnesses, parties and their counsel, and to the contents of all pleadings and documents filed with the court or matters offered in evidence, and to any actions taken preliminary but necessary to the institution of the action or, following the trial, essential to effect an appeal or execute on judgment. [Raymond E. Brown, The Law of Defamation in Canada, 2d ed., Vol. (Toronto: Carswell, 1999) (looseleaf, current to Rel. 2009-3), at pages 12-2 to 12-3] [52] leading authority regarding absolute privilege is the decision of the Judicial Committee of the Privy Council in O’Connor v. Waldron, 1934 CanLII 273 (UK JCPC), [1935] W.W.R. 1, [1935] D.L.R. 260 (P.C.), at para. 6: The question therefore in every case is whether the tribunal in question has similar attributes to Court of Justice or acts in manner similar to that in which such Courts act? [53] The Privy Council in O’Connor, supra, at para. adopted the reasons of the dissenting justice, Hodgins J.A., of the Ontario Court of Appeal (1931 CanLII 21 (ON CA), [1931] O.R. 608, 56 C.C.C. 296, [1931] D.L.R. 147). Hodgins J.A. stated, at para. [19] The best definition that have found is contained in the last edition of Odgers on Libel and Slander, 6th ed. (1929), p. 195, where it is said that: “An absolute privilege also attaches to all proceedings of, and to all evidence given before, any tribunal which by law, though not expressly Court, exercises judicial functions—that is to say has power to determine the legal rights and to effect (sic) the status of the parties who appear before it. All preliminary steps which are in accordance with the recognised and reasonable procedure of such tribunal are also absolutely privileged. It is not necessary that the tribunal should have all the powers of an ordinary Court.” [54] This definition of absolute privilege was recently affirmed by the Honourable Mr. Justice Allbright in Getz v. Opseth, 2005 SKQB 69 (CanLII), 261 Sask. R. 1, at paras. [12] In considering more closely the issue of absolute privilege, no action for defamatory statements can exist where such statements are made in the course of judicial or quasi-judicial proceedings. Rather such statements are protected by the principle of absolute privilege. This privilege also protects statements which are made in context such that they could be said to be intimately connected to judicial proceeding and all steps preparatory to judicial proceedings. In Dingwall v. Lax [(1988), 1988 CanLII 4716 (ON SC), 47 D.L.R. (4th) 604 (Ont. S.C.)], at para. 16, the court comments: “[16] In my opinion, the draft and letter were intimately connected to judicial proceeding the institution of which was being seriously considered by the defendants. In that respect they fall within the purview of the absolute privilege. As Fleming notes, the privilege extends to all preparatory steps taken with view to judicial proceedings.” [13] Earlier, at para. 9, the court references the text, J.G. Fleming, The Law of Torts, 5th ed. (Sydney: The Law Book Company Limited, 1977), in the following fashion: “[9] In support of their argument, defendants rely on Fleming, The Law of Torts, 5th ed. (1977), where he writes (at pp. 551-2): ‘The privilege is not confined to statements made in court, but extends to all preparatory steps taken with view to judicial proceedings ... But the statement or document must be directly concerned with actual or contemplated proceedings ... ‘The privilege attaches to any utterance reasonably related to the subject of the judicial inquiry ...’” (emphasis in original quote) [55] The Trade Union Act, R.S.S. 1978, c. T-17, s. 25 establishes mandatory arbitration for the resolution of labour grievances and empowers the arbitration board/chairperson with court-like functions and powers: 25(1) All differences between the parties to collective bargaining agreement or persons bound by the collective bargaining agreement or on whose behalf the collective bargaining agreement was entered into respecting its meaning, application or alleged violation, including question as to whether matter is arbitrable, are to be settled by arbitration after exhausting any grievance procedure established by the collective bargaining agreement. (1.1) Subsections (1.2) to (4) apply to all arbitrations pursuant to this Act or any collective bargaining agreement. (1.2) The finding of an arbitrator or an arbitration board is: (a) final and conclusive; (b) binding on the parties with respect to all matters within the legislative jurisdiction of the Government of Saskatchewan; and (c) enforceable in the same manner as an order of the board made pursuant to this Act. (2) An arbitrator or the chairperson of an arbitration board, as the case may be, may: (a) summon and enforce the attendance of witnesses and compel them to give oral or written evidence on oath in the same manner as court of record in civil cases; (b) administer oaths; (c) accept such oral or written evidence as the arbitrator or the arbitration board, as the case may be, in his or its discretion considers proper, whether admissible in court of law or not; (d) enter any premises where work is being done or has been done by the employees or in which the employer carries on business or where anything is taking place or has taken place concerning any of the differences submitted to him or it, and inspect and view any work, material, machinery, appliance or article therein, and interrogate any person respecting any such thing or any of such differences; (e) authorize any person to do anything that the arbitrator or arbitration board may do under clause (d) and report to the arbitrator or the arbitration board thereon; (f) relieve, on terms that, in the arbitrator’s opinion, are just and reasonable, against breaches of time limits set out in the collective bargaining agreement with respect to grievance procedure or an arbitration procedure; (g) dismiss or reject an application or grievance or refuse to settle difference if, in the opinion of the arbitrator or the arbitration board, there has been unreasonable delay by the person bringing the application or grievance or requesting the settlement and the delay has operated to the prejudice or detriment of the other party; and (h) encourage settlement of the dispute and, with the agreement of the parties, may use mediation, conciliation or other procedures to encourage settlement at any time during the arbitration. [56] Our Saskatchewan Court of Appeal in Fletcher Challenge Energy Canada Inc. v. Sulz, 2001 SKCA 11 (CanLII), 203 Sask. R. 115, [2001] W.W.R. 476, at para. 23 (although in that case the Surface Rights Board of Arbitration) held: 23 Although the Board is not bound by the formality of judicial procedure, an arbitration before it is nonetheless the functional equivalent of judicial or quasi-judicial proceeding. Where member of the Board is interested in matter before the Board, the Lieutenant Governor in Council may appoint some disinterested person to act as member of the Board in place of the interested member with respect to that matter only: See s. 11(1). The legislation is consistent with the traditional requirement of “fair hearing” before judicial or quasi-judicial tribunal. [57] Mr. Justice Lane of the Ontario Court of Justice in Venneri v. Bascom (1996), 1996 CanLII 7972 (ON SC), 28 O.R. (3d) 281 (Gen. Div.), [1996] O.J. No. 890 (QL), at paras. to 12 writes: ... The defendant submits that publication of defamatory material to judicial proceeding, including an arbitration of grievance under collective agreement, is an occasion of absolute privilege and no action lies. ... The board of arbitration has similar attributes to court and is therefore within the privilege: it proceeds in manner similar to court; its object is to arrive at judicial determination and it is recognized by law: Lincoln v. Daniels, [1962] Q.B. 237 at p. 253, [1961] All E.R. 740 (C.A.); School Boards and Teachers Collective Negotiations Act, R.S.O. 1990, c. S-2, s. 52. Accordingly, conclude that no action lies against this defendant, the Board, or anyone else involved, for the act of putting the letter into evidence at the arbitration hearing. ... [58] Therefore, find that an arbitration board or hearing under The Trade Union Act is quasi-judicial proceeding. [59] The defendants submit that the evidence establishes that the defendants prepared and distributed the grievance in preparation for and as part of quasi-judicial proceeding: the arbitration hearing of the Bowman grievance. [60] In Getz, the court held that the sending of correspondence was in preparation of proposed legal action and was, therefore, protected by absolute privilege. The defendants submit that the authors of the grievance report should enjoy absolute privilege regarding the impugned wording contained in the grievance report. [61] The defendants further submit that the evidence established that the notice and the attached grievance were published in limited fashion for the purpose of seeking witnesses for the actual arbitration hearing that the union was expecting early in 2007. The defendants argue that the witnesses would be needed to support the grievance. The defendants further argue that the steps taken by the union to post and distribute the notice and grievance were preparatory to the grievance hearing itself. [62] However, am not prepared to allow the defence of absolute privilege to succeed in this case. [63] Firstly, the defence is usually considered in the context of the actual hearing before the quasi-judicial body. [64] acknowledge, upon reading the learned author Brown’s excellent discussion on “Communications Outside of Privilege” (see pages 12-276 to 12-288) that circumstances do arise where statements outside of the actual hearing may be subject to the defence. (See also Brown under the headings “Investigative Reports to Determine Legal Position”, “Information Given to Initiate Legal Proceedings”, and “Information Given to Investigative Bodies” all found under c. 12.4(5), “Matters to Which Privilege Attaches”.) [65] Accordingly, the common law for some time now seems to be favoring extending the cloak of absolute privilege to what has been described as “steps preparatory to judicial proceedings” (see above quote from Getz). [66] However, note Allbright J. refers to such statements made in preparatory fashion as being “intimately connected to judicial context” (see para. [67] As well, in Venneri, Lane J. was writing about the actual filing of letter at the grievance hearing. Venneri stands more for the proposition that grievance arbitration hearings are quasi-judicial bodies than the concept that documents prepared beforehand are always protected. [68] The facts of this case militate against finding that the grievance report as published (i.e. on eight public bulletin boards, mass mailout, and on the internet) is in that context intimately connected to the quasi-judicial body. [69] The defendants by their own explanation rationalize the need for such extensive publication of the grievance report as means to gain further information and potential witnesses for the upcoming arbitration. [70] This in my opinion seems to fall more into the defence of qualified privilege than in what surely is the more restrictive defence of absolute privilege. [71] The grievance report, per se, while it remained within the confines of its original intended purpose (i.e. the originating document in grievance procedure mandated by The Trade Union Act), would be in my view protected by absolute privilege. However, the impugned words in that document ceased to enjoy that protection once the document was published in such broad way and for the purposes stated above. [72] Therefore, as indicated, reject the defence of absolute privilege. Qualified Privilege [73] Brown provides the following summary at pages 13-4 to 13-5: There are certain occasions on which person is entitled to publish untrue statements about another, where he or she will not be liable even though the publication is defamatory. One such occasion is called conditional or qualified privilege. No action can be maintained against defendant unless it is shown that he or she published the statement with actual or express malice. An occasion is privileged if statement is fairly made by person in the discharge of some public or private duty, or for the purpose of pursuing or protecting some private interest, provided it is made to person who has some corresponding interest in receiving it. The duty may be either legal, social or moral. The test is whether persons of ordinary intelligence and moral principle, or the great majority of right-minded persons, would have considered it duty to communicate the information to those to whom it was published. privilege is recognized where person seeks to protect or further his or her own legitimate interests, or those of another, or interests which he or she shares with someone else, or the interests of the public generally. It does not extend to comments that go beyond the exigency of the occasion or which are communicated to those who have no interest in receiving that information. [74] In addition, Brown at pages 13-208 to 13-212, discusses unions and qualified privilege as follows: (ii) Unions (A) Communications on Union Affairs. Members of trade union are interested in information about the activities of their officers and committees acting on their behalf. union, its officers and members may circulate information among themselves concerning the qualifications of officers and the participation by them and other members in the affairs of the union. This includes the use of union newspaper to circulate its views and keep its constituency advised of its activities, policies and actions taken with respect to the members. With regard to internal union newspaper communications by its officials to the membership, trial judge has said: “An occasion is privileged where the person who makes communication has an interest or duty, legal, social or moral, to make it to the person to whom it is made, and the person to whom it is made has corresponding interest or duty to receive it. ... Canadian U.E. News’ was the organ whereby the members and prospective members ... were kept advised as to the activities concerning them within the ranks of that part of the union. find that the members of the union ... had right to be kept aware of the activities of the elected members charged with the administration of at least the rights of the actual members of the union; and that correspondingly there was duty on the part of the elected members to inform (at least) the members of what steps or actions were being taken ... to safeguard, better, or otherwise improve the working conditions of the latter.” union newsletter may be distributed to the membership following strike criticizing the actions of management in rehiring replacement workers and in the process refer to them as “scabs” and criticize their honesty and integrity. union and its officers are privileged to criticize the character of the union lawyer at union meeting, with reference to his billings for legal work performed, or the conduct and activities of union vice-president, or the conduct of union secretary in the performance of his duties. It is privileged to circulate to its membership report and minutes of conference which included resolution passed by the conference relating to allegations made against member, or to report to the members shortages in the accounts of its financial secretary, or to summarize the findings of union executive board concerning charges preferred against the plaintiffs. The president of union may inform the staff relations committee of the union and the governing council the reason why business representative for the union was being terminated. The president of union and member of local may criticize the conduct of the president of the union local and the president may recommend his removal to the governing council. Union councillors may criticize members of the union council in the union newspaper with respect to public opposition on their part to decision by the union to stop work. The members of union are privileged to criticize union officials in the conduct of union affairs. union member may report at general meeting on the actions of fellow trade unionist who has acted against the interests of the union during strike. He may file an affidavit at the request of union agent for hiring hall setting forth certain incidents by another member of the union to be used to prefer charges against that member at meeting of the union. Statements made by union members appearing before union disciplinary committee are protected by qualified immunity. Where appropriate disciplinary proceedings are taken against member or officer, the charges made, the testimony given and the report of the disciplinary action taken, will be protected by qualified privilege. trade union is privileged to inform its membership about the activities of another union whose collective bargaining posture has had an adverse impact on its own collective bargaining with the same company. (B) Communications on Employer-Employee Affairs. union and its officers may provide information to the union constituency regarding matters of employment interest affecting individual employees. It may satisfy members with respect to the reasons why an employee, who was member of the union, was discharged. Thus in Fisher v. Rankin [1972 CanLII 1535 (BC SC), [1972] W.W.R. 705 (B.C.S.C.)] communication to joint standing grievance committee attributing the plaintiff’s discharge to deceitful and dishonest entry into the mill was reported in the union newspaper and posted on the union bulletin board in the mill. These publications were held to be privileged. The same conclusion was reached in Hebert v. Jackson [1950 CanLII 58 (ON CA), [1950] O.R. 799 (C.A.)], although the court was unwilling to extend the privilege to subsequent editorial following the plaintiff’s discharge which described the plaintiff as “an unscrupulous individual”. It was the court’s opinion that once the plaintiff had been removed as member of the union, the opinion of the editor was of no interest to other members of the union. union newspaper is entitled to report on pending grievances, and to advise its membership on the activities of various employees during the period of strike, including the alleged “treachery” of plaintiff who was fired by the union. It may communicate to its members information regarding public labour dispute, express its disatisfaction (sic) with the employer, and urge its members to boycott the employer’s products, and it may address communications critical of competing union to its officers and members and other workers in an industry it is attempting to organize. (C) Scope of Privilege. The publication must be made in good faith, on proper occasion, in proper manner and to appropriate parties. The privilege will be lost if it is abused by excessive publication or if the occasion is used for some improper purpose. Like intra-corporate communications, union’s incidental communication to outsiders will not defeat the privilege if the means chosen to communicate the information are otherwise reasonable and appropriate persons within the union, the fact that the recommendation made and the action taken in response to it goes beyond the authority granted by the constitution of the union does not destroy the privilege. The use of an internet website for the circulation of information to the union membership may be appropriate and privileged but only if reasonable steps are taken to restrict access to the website by the public generally or to those not interested in the information. [75] Counsel for the defendants points out that s. 25.1 of The Trade Union Act places duty upon the union to fairly represent its members, including representing members on grievances alleging breach of the collective bargaining agreement: 25.1 Every employee has the right to be fairly represented in grievance or rights arbitration proceedings under collective bargaining agreement by the trade union certified to represent his bargaining unit in manner that is not arbitrary, discriminatory or in bad faith. [76] agree with counsel for the defendants that preparing for grievance arbitration can also include locating witnesses to support the grievance. This would be connected with the discharge of the responsibility set out above. Communication with members on grievance matters is also in my view part of discharging the duty of fair representation. This falls in step with the learned author Brown’s comments set out above and therefore the publication of the impugned words would be protected by qualified privilege. [77] Plaintiff’s counsel expressed concern that the union’s communications in part consisted of using the internet. It is now 21st century reality that the internet and web pages will be used by large organizations (such as this union), to communicate with its membership. Brown (above under “Scope of Privilege”), expressed concern about the level of access to such information. In my view CUPE was entitled to communicate to the union membership in the fashion it did, subject to the concerns pertaining to malice. [78] The protection afforded by the defence of qualified privilege is not lightly removed. It can however be lost when there is an evidential finding that the dominant purpose was malice. [O’Halloran v. Pope (Teamsters, Local 987 v. U.F.C.W., Local 401), 2005 ABCA 263 (CanLII), [2006] W.W.R. 16, 258 D.L.R. (4th) 333.] [79] As stated by Cory J. in Hill v. Church of Scientology of Toronto, 1995 CanLII 59 (SCC), [1995] S.C.R. 1130, [1995] S.C.J. No. 64 (QL), at para. 144: The legal effect of the defence of qualified privilege is to rebut the inference, which normally arises from the publication of defamatory words, that they were spoken with malice. Where the occasion is shown to be privileged, the bona fides of the defendant is presumed and the defendant is free to publish, with impunity, remarks which may be defamatory and untrue about the plaintiff. However, the privilege is not absolute and can be defeated if the dominant motive for publishing the statement is actual or express malice. See Horrocks v. Lowe, [1975] A.C. 135 (H.L.), at p. 149. [80] The Alberta Court of Appeal in O’Halloran, supra, at para. 26 set out the following five-point test for assessing the defence of qualified privilege: 1. The defence of qualified privilege is not absolute. 2. If actual or express malice is the dominant motive for publishing the statement, the privilege is defeated. 3. If the occasion is shown to be privileged, not all statements made on the occasion will be protected by the privilege. 4. statement which is not reasonably appropriate in the context of the circumstances existing on the occasion will, if defamatory, not be protected by the privilege. statement will not be reasonably appropriate if it is the product of indirect motive or ulterior purpose or if it conflicts with the sense of duty or the mutual interest that the occasion created. 5. If the defendant is acting in accordance with sense of duty or in bona fide desire to protect his own legitimate interests, knowledge that publication of the statement will have the effect of injuring the defendant is insufficient, standing alone, to destroy the privilege. At para. 27, the court in O’Halloran concludes: 27 In my opinion, the trial judge failed to apply these principles to the facts of the case. The trial judge equated any evidence of malice as sufficient to discharge the Respondents’ onus. He, with respect, failed to consider fully the context of the occasion in which the statement was made, the dominant motive, the protection of legitimate interests and the sense of duty and mutual interest which the occasion created. [82] The defence of qualified privilege brings with it necessary discussion of the principle of malice and whether the plaintiff has proven that the defendants acted with dominantly malicious purpose with the inclusion of the impugned statements in the grievance report. [83] The learned author Brown at page 16-2 provides summary of malice as follows: Publications that are protected by conditional or qualified immunity, or by the defence of fair comment, may be defeated by evidence of actual or express malice. Malice may be shown if it is proven that the defendant used the occasion upon which the immunity is founded for some wrong or improper purpose or motive, other than the interest which gave rise to the privileged occasion, or that he or she spoke dishonestly or in knowing or reckless disregard of the truth. It may be proved both by inferences to be drawn from the language of the defamatory statement itself, when it contains unnecessary violence or intemperance of expression, or by evidence extrinsic to the publication, such as the nature and character of the relationship between the parties, the mode and extent of publication and the conduct of the defendant in publishing it. [84] The defendants point of view appears to be that Dr. Rubin was not policing the situation in the workplace while the back to work program was in place. The defendants adopted the complaint of Ms. Bowman. The complaint or grievance, being that despite weeks of meetings and discussions and thorough review of policy, Ms. Bowman still maintained she was being harassed. [85] The wording of the grievance is unfortunate. It would have been far better to approach the issue in more general way than to directly identify Dr. Rubin. [86] However, am satisfied that the defendants undertook the preparation and drafting of the grievance report very seriously. The grievance report wording was based on their collective belief that the plaintiff seemed to be unable to control the situation as it unfolded each day at the workplace. [87] The evidence indicates that in the minds of the defendants (rightfully or not but certainly bona fide), the buck stopped at the plaintiff’s desk. This well may have been an overly simplified reaction to the rather complex and protracted workplace problem. have already expressed my opinion that Dr. Rubin was doing all that he believed he could reasonably be expected to do. However, cannot conclude on the evidence before me that any of the defendants in drafting the grievance report or in publishing the grievance report, acted maliciously. [88] The evidence of both Mr. Ross and Mr. Nowaselski and by default, that of the union, was that they basically held the head of the department directly accountable. Other observers may have come to different conclusion. However, cannot say that the defendants acted with reckless regard of the truth or for any improper purpose other than representing union member. [89] note that the plaintiff attempted to show improper motive by trying to depict some sort of conspiracy between faculty member, Ms. Bowman and legal counsel for the union. The plaintiff did not come close to proving this, and it was unfortunate that this theory was launched at trial. Nor am persuaded that the union was using this grievance to push back at the University of Saskatchewan itself in broader sense. These two theories were simply not proven. [90] Therefore, the defence of qualified privilege succeeds. 4. THE DEFENCES OF RESPONSIBLE COMMUNICATION AND FAIR COMMENT [91] In my view, the case of Grant v. Torstar Corp. is not applicable to this situation. This is not case of broad-based media seeking the protection of the defence granted under that decision. 5. DAMAGES (Provisional) [92] Although have found above that the defence of qualified privilege has succeeded and therefore the plaintiff’s action has failed, will provide my opinion on damages on provisional basis. [93] In regard to general damages the trial judge in Dinyer-Fraser v. Laurentian Bank, 2005 BCSC 225 (CanLII), [2005] B.C.J. No. 309 (QL), states as follows: 240 In Hill, the Supreme Court of Canada affirmed that confluence of circumstantial factors are relevant to the assessment of general damages. They include: (1) the plaintiff’s position and standing; (2) the nature of the libel; (3) the mode and extent of the publication; (4) the possible effects of the statement upon the plaintiff’s life; (5) the absence or refusal of retraction or apology; and (6) the motivation and conduct of the defendant throughout the action .... [94] have previously made reference to the plaintiff’s background and education. [95] The plaintiff was quite upset with the posting of the grievance report on the bulletin boards. To me that was the primary source of his unhappiness. The plaintiff of course was also upset that the grievance report went out with the newsletter and ended up on the website. [96] The plaintiff complains that in essence his stature as the director of the VTH was affected by the impugned words in the grievance report. According to the plaintiff, this caused him ultimately to resign as the director of the VTH and take job as full-tenured professor at the Veterinary College in Saskatoon. [97] note that it appears Dr. Rubin had the full support of the Dean of the Veterinary College and the HR department of the University. In fact the Dean took an active role in chastising the union for publishing the grievance report. [98] It was the plaintiff’s sole decision to resign as the director of the VTH and there was no evidence that there was any other pressure from anyone for him to do this. [99] Dr. Rubin then re-entered the faculty as full-tenured professor. Apparently he was doing what he loved to do. However, the plaintiff continued to feel out of place. Dr. Rubin was not able to fully particularize what was causing this unhappiness. [100] Dr. Rubin admitted that being full-tenured professor and not having to worry about the administration of the VTH would be less stressful. [101] In any event, it was around this approximate time that he decided to apply for the director of veterinarian hospital in the United States and also showed interest in “headhunter” who sought out his abilities and talents for employment in the United States. [102] Dr. Rubin seems to have had some degree of selection in terms of where the headhunter was going to place him. The plaintiff indicated preference to Tucson. Again, Dr. Rubin appears to be doing what he has trained for and what he likes to do, namely highly-specialized veterinarian. [103] Dr. Rubin complains that his spouse has not found employment in the United States. The plaintiff further states that it has cost him some money to obtain the necessary immigration qualifications to work in the United States. heard no evidence as to what the cost of living in Tucson might be as compared to Saskatoon, and what the tax rates in the State of Arizona might be as compared to those of Saskatchewan, etc. [104] have no difficulty in appreciating Dr. Rubin’s concern about the wording of the grievance report and the fact that it was circulated. However, as noted, he continued to receive the full support of his Dean. In addition, stepping down as director and moving into less stressful position as full-tenured professor does not seem to be particular hardship. In addition, the plaintiff seems to have accommodated his desire to move from Saskatoon with employment in Tucson. [105] Regarding aggravated or punitive damages, Brown states at pages 25-66 to 25-70: (ii) State of Mind “Malice is an important element to be considered in fixing or assessing the damages”. Therefore, the court may take into consideration the presence of actual malice, or “wanton and malicious conduct” on the part of the defendant. It may be shown to enhance the award. “[T]he amount of damages should be governed or graduated by the degree of malice by which defendant was actuated. It is assumed that if the plaintiff is aware of the malicious purpose of the defamer, it may affect the amount and intensity of his or her mental suffering and injury to feelings. For that reason, the personal motives of defendant may be examined. Any evidence of express malice may be weighed against the defendant. jury is “entitled to consider the whole spirit and intention with which the articles were written and published. This is true even though the malice consists of other defamatory remarks. Evidence of the spirit and intention with which person defames another “cannot be excluded simply because it may disclose another and different cause of action. Malice may be shown if the publication of the defamatory remarks is intentional, or they are “reckless and deliberately damaging”. Therefore, the defendant’s intention to defame, or fabrication of the defamatory remarks, or even the failure of the defendant to inquire where he or she possesses the means by which its truth or falsity could be ascertained, particularly where the information is readily available, there is ample time to check it, and the defamatory material is particularly damaging to the plaintiff’s reputation, are aggravating circumstances. The defendant’s cavalier attitude, recklessness and lack of consideration for others, or bad faith and gross negligence, or general bad motive or evil purpose, or lack of justification in making the remarks, may also be taken into consideration in increasing damages. Apart from any question of privilege bona fides is always material upon the question of damages. plaintiff may offer evidence to prove lack of good faith absence of honest belief on the part of defendant in order to aggravate his damages; defendant may, in like manner, give evidence to shew that he acted in good faith to mitigate the damages. The fact that he or she made the remark in the face of denial by the plaintiff may be considered as an aggravating factor. Also considered an aggravating circumstance is the contemptuous remark by the defendant that “to be dragged into court like this is more than making mountain out of molehill.” [106] In my opinion, this is not situation for aggravated or punitive damages based on the evidence. If was to award damages, such damages would be general damages only. Nor would have ordered special damages based on the evidence. Dr. Rubin’s claim for special damages appears to have boiled down to his legal fees for immigrating into the United States. I am not satisfied that the defendants should bear the responsibility of these expenses for the decision by Dr. Rubin to leave the University of Saskatchewan and take what he describes as a lateral employment opportunity in Tucson. Further, Dr. Rubin did not appear to be interested in finding employment in Canada, and deliberately chose to move into another country which by that very fact, would necessitate immigration expenses. [107] Counsel for the defendants urge only nominal damages. Counsel on behalf of the plaintiff has requested very significant damages. [108] The awarding of damages and particularly in defamation case is particularly subjective. In this case we have plaintiff who was defamed, but within the context of his administrative functions vis-à-vis an unfortunate and protracted labour relations situation. [109] am not satisfied that the level of insult and level of loss of reputation in this particular case are consistent with the sizable damage awards urged by plaintiff’s counsel. There was no evidence that anyone forced Dr. Rubin to take the steps he did (i.e. self-demotion and subsequently obtaining employment in foreign country). [110] Therefore, I have come to the conclusion that a fair amount of general compensation for Dr. Rubin would have been $25,000. COSTS [111] I have found that Dr. Rubin indeed was defamed. However, the defendants have successfully raised the defence of qualified privilege. Accordingly, there were mixed results in this litigation. Therefore, I have decided to exercise my discretion and not to award costs to any party (excepting of course any award of costs already ordered).

The plaintiff veterinarian states that his personal and professional reputation has been damaged by defamatory statements made by the defendants. He worked at the veterinary college at the University of Saskatchewan, and an employee was involved in a grievance process. The plaintiff was involved by virtue of his supervisory position at the college. He asserts these statements were posted on bulletin boards in the plaintiff's workplace and postings on the union website. The statements were produced in connection with the labour grievance and alleged that the plaintiff failed to prevent harassment in the workplace in supervisory capacity or engaged in such harassment himself. The plaintiff seeks damages and costs. He states that he was pushed to leave his employment and is now engaged in private practice which pays less and is not as stable. He has incurred costs to move to the United States to obtain employment.HELD: The elements of defamation are: 1) the words would tend to lower the plaintiff's reputation in the eyes of a reasonable person, 2) the words in fact referred to the plaintiff, and 3) the words were published (Grant v. Torstar Corp.). In these circumstances, the plaintiff was defamed. The defendants raise the defence of absolute privilege. This defence provides that 'no action for defamatory statements can exist where such statements are made in the course of judicial or quasi-judicial proceedings' (Getz v. Opseth). The Trade Union Act establishes mandatory arbitration for the resolution of labour grievances and empowers the arbitration board or chairperson with court-like functions and powers. The Saskatchewan Court of Appeal has found that an arbitration board fulfills quasi-judicial function (Fletcher Challenge Energy Canada Inc. v. Sulz). The Court does not allow the defence of absolute privilege as it is usually considered in the context of the actual hearing before the body. In this case, the statements were produced as a notice in order to bring further witnesses forward from the college. The Court instead determines the statements fall within the defence of qualified privilege. This applies in a situation where the statements are made in order to discharge the board member's duty. The Court finds the statements were made in order to gather further evidence and witnesses, which is part of the board's duties. The protection of qualified privilege may be removed on where there is evidence that the dominant purpose of the statements was malice. There is no such evidence in this case, therefore the defence of qualified privilege succeeds. Nonetheless the Court provides an opinion on damages on a provisional basis. There was no evidence that the plaintiff was forced to leave his position and move to the United States following the incident. The Court therefore concludes fair compensation would be $25,000. Since the results are mixed, there is no award of costs.

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QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2010 SKQB 193 Date: 2010 05 31 Docket: Q.B. No. 305 of 2006 Judicial Centre: Yorkton BETWEEN: DENISE DEBORAH HILL, DARYL HILL and JEJEMA TRUCKING INC. and ARLISS DELLOW, ADMINISTRATOR AD LITEM FOR THE LATE FREDERICK EMANUEL ALVIN WIESS, SASKATCHEWAN GOVERNMENT INSURANCE, ING INSURANCE COMPANY OF CANADA, ING INSURANCE and MANITOBA PUBLIC INSURANCE CORPORATION Counsel: Ronald Balacko for the plaintiffs Christopher Weitzel for Saskatchewan Government Insurance Ian Gunn for ING Insurance Tristan Culham for Manitoba Public Insurance FIAT SANDOMIRSKY J. MAY 31, 2010 [1] The plaintiffs were operating tractor unit bearing Manitoba licence plates and pulling semi-trailer bearing an Alberta licence plate. The tractor was owned by an Alberta company and the plaintiffs, presumably husband and wife, were, at all material times, residents of the Province of Alberta. On the 22nd day of August, 2004, the plaintiffs were involved in head on collision on stretch of Highway No. 16 in the Province of Saskatchewan. The plaintiff, Denise Deborah Hill (“DDH”) sustained “right leg injury, lacerations, back injury and post-traumatic stress disorder” this being the language appearing at para. of the plaintiffs’ statement of claim. [2] The defendant, the late Frederick Emanuel Alvin Wiess (‘FW”), Manitoba resident, was operating his motor vehicle which was pulling fifth wheel trailer. His vehicle bore Manitoba licence plates. The defendant, FW, was travelling eastward, whilst the plaintiffs were travelling westward on the said Saskatchewan highway. [3] As consequence, the defendant auto insurers of each of the three provinces are named defendants. Saskatchewan, at all material times, was governed by no-fault insurance regime. [4] The plaintiffs issued their statement of claim on August 16, 2006, six days shy of the two year limitation period. In this context, the plaintiffs claimed that DDH, the female plaintiff, had not recovered from her injuries and damages were accruing but the extent thereof was not yet known. At paras. 8, 9. 10 and 11 of the plaintiffs’ statement of claim the plaintiffs plead, in general language, the following: 8. As of this date the full extent of the injuries of the Plaintiff, Denise Deborah Hill, are not completely determined as she has not yet fully recovered for [sic] her said injuries. 9. The Plaintiff, Denise Deborah Hill and the Plaintiff Daryl Hill and the Plaintiff, Jejema Trucking Inc. have suffered loss of income both past and future, the exact amounts of which are not yet fully ascertainable and leave will be asked to prove such damages at the trial of this action. 10. The Plaintiffs have incurred medical, hospital, drug and other expenses, the exact amounts of which are not yet fully ascertainable and leave will be asked to prove such damages at the trial of this action. 11. The Plaintiffs will incur further loss and expense and the Plaintiff, Denise Deborah Hill is still under treatment for her injuries and leave will be asked at the trial of this action to prove the amount of the said loss and expense and special damages for same as such are not now fully ascertainable. [5] The defendants, and each of them, have filed their respective statements of defence with the court, with filing dates of November 20, 2006, January 17, 2007 and December 30, 2008. Each defendant denies liability and raises the legal issue of which insurer and provincial insurance regime has jurisdiction and potential liability, if any, given that the Province of Saskatchewan’s The Automobile Accident Insurance Act, R.S.S. 1978, c. A-35 creates no-fault driver regime and has agreements with each of the neighbouring provinces. [6] There has been virtually no progress made in these proceedings. [7] Each of the defendants, in groups of three in all, have now brought three notices of motion before the court in chambers in which they seek the court’s order that the plaintiffs “deliver a Statement of Particulars in full response to all particulars sought in the Demand for Particulars served upon the plaintiffs by these defendants”. Those Demands were filed with the court March 14, 15 and 16 of 2010 respectively pursuant to Rule 164(4) of The Queen’s Bench Rules. The defendants each ask for a “further order compelling the plaintiffs to produce copies of all documents listed under the first schedule of their initial Statement as to Documents, as requested by Counsel for these defendants, pursuant to Rule 213 of the Rules of Court”. [8] As the parties are familiar with each of Rules 139, 164, 213 and 215, shall not repeat each Rule for brevity sake. [9] The demand for particulars filed for each of the three groups of defendants, these groups of defendants coinciding with the provinces and auto insurance coverage in those provinces, are identically worded and must, by obvious inference, be the result of consultation and collaboration between all three defence counsel. Likewise, the three notices of motion are similarly worded, dated within three days of each other, and the draft orders for relief are similar in content and very closely worded. one to the other. [10] In oral argument, each of the plaintiffs and defendants point to the other as being responsible for the delays in these proceedings. In nutshell, the plaintiffs say they have been “stonewalled by the defendants” while the defendants retaliate that the plaintiffs are obtuse and not forthcoming in making appropriate disclosure of particulars and documents so as to enable the defendants to assess their positions, and if necessary, prepare for proper examinations for discovery. The defendants collectively voiced their “frustration” with the plaintiffs and their counsel. Blame matters not in the court’s deliberations other than being possible factor going to the issue of costs of the application. [11] An overview of the case law for each of Rules 139, 164 and 215 can be found in the current edition of The Queen’s Bench Rules of Saskatchewan: Annotated, Law Society of Saskatchewan, 2001 (3rd edition, by Neva R. McKeague). [12] Particulars may be sought both before and after the filing of statement of defence or reply to defence. [13] Rule 139 states that “every pleading shall contain and contain only statement in summary form of the material facts on which the party pleading relies for his claim or defence, but not the evidence by which the facts are to be proved. pleading shall be as brief as the nature of the case will permit.” [14] The plaintiffs’ statement of claim accords with Rule 139 and goes, perhaps, as far in particularity as the state of health of the plaintiff, DDH, permitted on the eve of the expiry of the limitation period. Thus, the wording of paras. through 11, supra, appear in general and vague nature. [15] Rule 164 provides to the defendants right to deliver notice in writing to the plaintiffs requiring the plaintiffs to provide, “a further and better statement of the nature of their claim ... and, better particulars of any matter of which particulars should properly be given and such notices shall clearly state the particulars required.” Unlike Rule 139, which has as its main purpose the provision of sufficient particulars to enable a defendant to comprehend the nature and extent of the plaintiffs’ claim and respond with an intelligible statement of defence, Rule 164 has a different, but similar, scope. Rule 164 enables a party, after delivery of the initial pleadings of the opponent, to demand better particulars and disclosure of documents. This Rule contains at least two major purposes: first, to assess the merits of the case in greater detail then mandated by Rule 139. By more fully comprehending the details and nuances of the case, defendant may, with the appropriate disclosure, assess the merits of settlement discussions. Second, further particulars may be required in order to properly prepare for examination for discovery. There may be other considerations as well. [16] In this particular case, both the first and second reasons just stated have merit. The defendants must know, with more particularly, garnered from the passage of time and therapeutic treatment and healing of the plaintiff, DDH, the extent of her injuries and whether there will be chronic disability. The defendants are entitled to this information, at a minimum, before discovery. The defendants may require their own medical examinations of this plaintiff by request to the plaintiff or court. The defendants may further require the medical opinions or assistance of their own medical experts to understand the true nature of the injuries and how to interpret the plaintiffs’ medical evidence. The defendants’ counsel deserve the opportunity to be assisted or coached on the particular medical conditions and diverse medical opinions, in order to prepare meaningful examination for discovery. The defendants may also need the assistance of an accident reconstructionist or mechanic to assist in the preparation of a meaningful examination for discovery. To tap those resources, the defendants will need up-to-date and full discovery of particulars in order to do due diligence and prepare their respective discoveries. These are just few of the more obvious and legitimate reasons for the defence to advance the demand for better particulars and disclosure of documents, as they have. In other words, the plaintiffs’ argument to the court that this information and disclosure can be obtained at discovery, lacks merit. Consequently, there is substantive and legitimate purpose served by the defendants’ request for better and current particulars and disclosure of documents. [17] Further, even if were to accept the plaintiffs’ argument to wait for discovery, the plaintiffs are going to be obliged to do their homework and prepare the same particulars in preparation for their own examinations for discovery. Inconvenience to the plaintiffs in doing this work earlier than later is not valid argument. [18] Paragraphs 8, 9, 10 and 11 of the statement of claim were general and vague due to the circumstances that existed in 2006. Now, in 2010 and in anticipation of discoveries, or, with the benefit of healing, passage of time and the acquired certainty of the plaintiffs’ injury claim, all factors necessitate granting the defendants’ requests, for the reasons given. [19] The plaintiff, Daryl Hill (DH), indicates in his affidavit that such particulars and documents are available and this information is being assembled. He states that the plaintiffs require 60 days in order to complete their preparation of this material. [20] DH swore this affidavit, including the closing paragraph, number 22, on May 4, 2010. Twenty-four days has now elapsed. Therefore, according to DH, they should be able to provide the disclosure within 40 days of the granting of this order. [21] The defendants’ applications are granted. Each of the defendants has furnished draft order, very similar in substance, varying given the parties involved. The draft orders are to issue as an order of the court, save and excepting the request for costs, which shall be costs in the cause. It would be premature on my part to award costs at this stage. The trial judge will be able to see the reply to demands for particulars and be better positioned to assess the merits of these motions than am able to infer from the material presently before the court. J. N. S. SANDOMIRSKY

The litigation revolved around a claim by the plaintiffs for damages that resulted from a motor vehicle accident. The plaintiff alleged damages from injuries in a statement of claim issued in 2006. In 2010, the defendant insurance companies made a demand for particulars seeking production of documents listed in the plaintiff's Statement as to Documents, most of which related to determining the extent of the plaintiffs injury. Counsel for the plaintiff opposed the application and suggested the issues were for discovery. HELD: The purpose of Queen's Bench Rule 139 is to provide the defendant with sufficient particulars to comprehend the nature and extent of the plaintiff's claim and respond with an intelligible statement of defence. Rule 164 allows a defendant to make a demand for particulars and disclosure of documents to assess the merits of the case, assess the merits of settlement and to prepare for examination for discovery. In this case, the defendants are entitled to know the current medical condition of the plaintiff prior to discovery because they might need further medical examinations, medical opinions and the assistance of an accident reconstructionist or mechanic to prepare to represent their client at the discovery. The plaintiff was granted 40 days from the date of the order to reply to the demand for particulars.

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QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2010 SKQB 343 Date: 2010 09 17 Docket: Q.B.G. No. 247 of 2008 Judicial Centre: Saskatoon BETWEEN: SEAN SCHROEDER, ALLISTER CURTIS VEINOT, and ELEANORE SMIROLDO, as Litigation Guardian for Eden Bobyk and DJO CANADA, INC., DJO, LLC, McKINLEY MEDICAL LLC, McKINLEY MEDICAL CORPORATION and CURLIN MEDICAL INC. Defendants Brought under The Class Actions Act, S.S. 2001, c. C‑12.01 Counsel: Douglas Lennox and Robert J. Gibbings, Q.C. for the plaintiffs Gordon J. Kuski, Q.C. and Amanda Quayle for the defendants, DJO Canada, Inc. and DJO, LLC Peter J. Cavanagh for the defendants, McKinley Medical LLC, McKinley Medical Corporation and Curlin Medical Inc. FIAT POPESCUL J. September 17, 2010 [1] By order and judgment dated March 29, 2010, I certified the within action as a class action. DJO Canada, Inc., DJO, LLC, McKinley Medical LLC, McKinley Medical Corporation and Curlin Medical Inc. sought leave to appeal the certification order to the Court of Appeal pursuant to s. 39(3)(a) of The Class Actions Act, S.S. 2001, c. C-12.01. number of grounds of appeal were advanced by the defendants. [2] On August 26, 2010, Chief Justice Klebuc rendered decision on the leave application. The defendants were granted leave to appeal only that portion of the certification order that pertained to the cause of action relating to alleged breaches of The Consumer Protection Act, S.S. 1996, c. C-30.1 (“the CPA”). All other aspects of the leave to appeal application, including that relating to the breach of duty of care cause of action, were dismissed. See DJO Canada, Inc. v. Schroeder, 2010 SKCA 100 (CanLII), [2010] S.J. No. 505 (QL). [3] The situation that now exists is that the class action will definitely advance, although, until after the appeal concerning the CPA cause of action is finally determined, it is not known whether the class action will proceed on the basis of one cause of action or two. [4] Counsel for the plaintiffs requested case management conference call to address the issue of the next steps that should now be taken. conference call was convened on September 16, 2010, at which time the parties were given the opportunity to speak to the issue of whether it is appropriate to move the matter forward at this time, given that there is an appeal pending albeit on only one aspect of the certification order. [5] The plaintiffs took the position that steps can now be taken to move this action forward concurrently with the appeal because the Court of Appeal denied leave to appeal the issue of certification itself, and expressly acknowledged that there was cause of action based on breach of duty of care. Furthermore, the plaintiffs point to statement made in Chief Justice Klebuc’s decision where he stated, “Nor should consideration of the question by this Court unduly delay the subject class action.” [6] The defendants, on the other hand, suggest that it is not proper to proceed given that the matter is pending before the Court of Appeal. They contend that the certification order is stayed and it is only the Court of Appeal that has the authority to lift the stay. [7] agree with the defendants’ submission. [8] Rule 15 of The Court of Appeal Rules states, in part: 15(1) ... Unless otherwise ordered by judge, the service and filing of notice of appeal stays the execution of any other judgment or order pending the disposition of the appeal. (2) Where leave to appeal from an interlocutory order is granted, the judge hearing the application may give directions as to staying proceedings. (4) Where the execution of judgment or order is stayed pending an appeal, all further proceedings in the action, other than the issue of the judgment and the taxation of costs under the judgment, are stayed unless otherwise ordered. [9] The fact that leave to appeal was granted on one aspect of the certification order is sufficient to engage Rule 15 and stay the entire judgment pending the disposition of the appeal. In the event that the plaintiffs wish to apply to lift the stay, they may do so by applying to “a judge”, which, in these circumstances is judge of the Court of Appeal. [10] Accordingly, I find that the certification order is stayed pending appeal, subject to the Court of Appeal lifting the stay should it see fit. J. M.D. POPESCUL

A class action was certificated at Queen's Bench on the basis of breaches of The Consumer Protection Act and a breach of duty of care. The defendants were granted leave from the Court of Appeal to appeal the portion of the certification order dealing with alleged breaches of The Consumer Protection Act only. The certification on the basis of duty of care was upheld. As a result, a situation existed where the class action process could continue on only part of the claim until the appeal of consumer protection act issues was heard. HELD: Rule 15 of The Court of Appeal Rules is engaged and the entire certification judgment is stayed pending the disposition of the appeal. If the plaintiffs wish to apply to lift the stay they must do so to a judge of the Court of Appeal.

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68 Q.B.A. A.D. 2001 No. 16 J.C.B. IN THE COURT OF QUEEN’S BENCH JUDICIAL CENTRE OF BATTLEFORD BETWEEN: MERVIN MAURICE AND WALTER GARDINER and HER MAJESTY THE QUEEN RESPONDENT Clem Chartier for the appellants P. Mitch McAdam for the respondent JUDGMENT February 25, 2002 KRUEGER J. [1] This is an appeal by Mervin Maurice and Walter Gardiner from their summary conviction on October 5, 2001, for unlawfully using a searchlight for the purpose of hunting wildlife, contrary to s. 11.1(3) of The Saskatchewan Regulations passed pursuant to The Wildlife Act, 1998. The stated grounds of appeal are: 1. The conviction is against the law, the evidence and the weight of the evidence; 2. The learned trial judge erred in law in holding that the appellants as “Indians” within the meaning of the Natural Resources Transfer Agreement, 1930, which forms part of the Constitution of Canada by virtue of the Constitution Act, 1930 did not have an Aboriginal right to hunt with searchlight. 3.That the learned trial judge erred in law in failing to find that s. 11.1(3) of The Saskatchewan Regulations, to the extent that it affected the appellants’ “Aboriginal rights” and/or “Indianness”, must be read down in order to preserve its constitutionality under the doctrines of division of powers and/or interjurisdictional immunity. [2] The facts are not in dispute. At about two o’clock in the morning of October 7, 1999, while returning home on public dirt road in Northwest Saskatchewan from an unsuccessful moose hunt, the appellants spotted and then shot, aided by illumination from their vehicle headlights, white-tail deer on unoccupied Crown land. After lengthy trial at Meadow Lake the appellants were convicted and each fined $500.00. [3] Both of the appellants are of Metis heritage, being direct descendants of Metis people who took scrip in 1906 at Ile-a-la-Crosse and who, while living in the community of Sapwagamik, engaged in the traditional Metis way of life. Prior to being charged with the hunting offence, both appellants moved to Meadow Lake and now only embark upon traditional Metis way of life during the summer months or other times when their children are not in school. The trial judge found as fact that the appellants are Metis. The respondent acknowledges that if the appellants are Metis, they enjoy an aboriginal right to hunt for food as protected by s. 35(1) of the Constitution Act, 1982. The issue on this appeal is whether the appellants, as Metis, are subject to s. 11.1(3) of The Saskatchewan Regulations made under The Wildlife Act. [4] The relevant portions of The Wildlife Regulations, 1981, R.R.S., c. W-13.1, Reg. 11.1, as amended, provide as follows: 11.1 (1) Nothing in this section is to be construed as applying to hunting on Reserve. (2) For the purpose of ensuring the safety of hunters and the public, searchlight shall not be used for the purposes of hunting wildlife. (3) No person shall fail to comply with subsection (2). (4) Notwithstanding subsections (2) and (3), person may use searchlight for the purposes of normal trapping operations. (5) No person shall, during the period from one-half hour after sunset to one-half hour before sunrise, discharge, for the purposes of hunting, firearm from any: (a) provincial highway or highway; (b) road, primary grid road or grid road; (c) road allowance, right of way or ditch. (6) Subsection 75(3), clause 77(1)(a) and subsection 80(2) of the Act apply to contravention of this section. S. (jj.2) defines “searchlight” to mean spotlight, flashlight, jacklight, night light, headlight or any other light that casts beam of light, and includes night vision scopes and goggles. Section 12 of the Natural Resources Transfer Agreement, 1930 reads: 12. In order to secure to the Indians of the Province the continuance of the supply of game and fish for their support and subsistence, Canada agrees that the laws respecting game in force in the Province from time to time shall apply to the Indians within the boundaries thereof, provided, however, that the said Indians shall have the right, which the Province hereby assures to them, of hunting, trapping and fishing game and fish for food at all seasons of the year on all unoccupied Crown lands and on any other lands to which the said Indians may have right of access. STANDARD OF REVIEW [5] It has long been established that findings of fact are not to be reversed on appeal unless it can be shown that the trial judge made palpable and overriding error that affected his/her assessment of the facts. See. Lensen v. Lensen, (1987) 1987 CanLII (SCC), S.C.R. 672; R. v. Andres (1982), 1979 CanLII 2238 (SK CA), W.W.R. 249 (Sask. C.A.). No error in the assessment of the facts has been alleged by the appellants and none is apparent from review of the evidence. [6] Errors in law may result from an incorrect application of the law to the facts as found. The appellants maintain that the trial judge erred in law when he interpreted s. 12 of the Natural Resources Transfer Agreement, 1930 [hereinafter called NRTA] so as to deprive them of their aboriginal right to hunt at night with searchlight. They further argue that it was an error in law for the trial judge to apply the Sparrow test of justification for s. 11.1(3) of the Regulations rather than the doctrine of interjurisdictional immunity as protected by s. 91(24) of the Constitution. The respondent takes the position that night hunting with an artificial light never was part of any aboriginal hunting right, and even if s. 11.1(3) constitutes prima facie infringement within the meaning of the Sparrow test, it is justified because of the strong safety purpose. [7] Like the trial judge, do not intend to comment on the enforcement guidelines with respect to Metis hunting and fishing rights that have been adopted by the Department of Environment and Resource Management. It is not necessary to do so in order to dispose of this appeal. Nor do intend to comment on whether the word “Indian” as contained in s. 12 of the NRTA includes “Metis.” That can be assumed for the purposes of this appeal. It will not affect the final result. [8] The trial judge made three distinct and alternate findings: (1) Based on the evidence (in particular that of Richard Wyatt) night hunting with an artificial light is so inherently dangerous as not to attract protection as an aboriginal right. (2) Based on the Sparrow test for prima facie infringement and justification, s. 11.1(3) of the Regulations withstands both prima facie infringement and justifiability scrutiny. (3) Based on the authorities, s. 11.1(3) of the Regulations does not touch the appellants’ core as Indians and, therefore, does not give rise to interjurisdictional immunity. [9] It is the position of the appellants that as Metis they enjoy hunting rights within the meaning of s. 12 of the NRTA. Their argument is that they are exempt from any hunting prohibition when hunting on unoccupied Crown land. In support of that contention, counsel for the appellants relied on R. v. Prince and Myron, 1963 CanLII 91 (SCC), [1964] S.C.R. 81; R. v. Tobacco, [1980] C.N.L.R. 81 (Sask. C.A.) and R. v. Mooswa, [1980] C.N.L.R. 112 (Sask. C.A.) Those cases deal with hunting rights separate and apart from safety considerations and were all decided prior to R. v. Sparrow, (1990) 1990 CanLII 104 (SCC), S.C.R. 1075. [10] Counsel for the respondent is of the view that it does not matter whether the appellants are Indians within the meaning of s. 12 of the NRTA or whether they possess aboriginal hunting rights independent of that agreement. According to the respondent, the appellants, like everyone else, are subject to the Saskatchewan regulation that prohibits night hunting with artificial lights except when hunting on Reserve. The regulation is constitutionally binding, it is suggested, because its primary objective is safety. In support of that argument the Court was referred to R. v. Myran and Meeches, 1975 CanLII 157 (SCC), [1976] S.C.R. 137. The respondent also relies on the decision of the Supreme Court of Canada in Sparrow, supra, and the cases that followed, including R. v. Gladstone, 1996 CanLII 160 (SCC), [1996] S.C.R. 723; R. v. Badger, 1996 CanLII 236 (SCC), [1996] S.C.R. 771; and R. v. Van der Peet, 1996 CanLII 216 (SCC), [1996] S.C.R. 507. A. ABORIGINAL HUNTING RIGHTS [11] The trial judge reviewed the relevant reported authorities relating to hunting rights. He found them to be divided into two categories; those directed toward safety issues and those dealing with the method of hunting. He concluded at para. 49 of his judgment: [49] Therefore if the Accused are “Indians” under the NRTA, and their rights fall to be considered in like fashion to those “Indians” who took treaty in 1906, the Accused would still have to comply with the Regulation, because they were not hunting on Reserve and because the cases cited above have held that no one is allowed to engage in dangerous hunting practices, even people with NRTA rights who hunt on unoccupied Crown land to which they have right of access. The trial judge found that aboriginal hunting rights must be exercised subject to any legislation that expresses legitimate safety concerns. [12] The Nova Scotia Court of Appeal in R. v. Bernard, [2000] C.N.L.R. 97 (N.S. Prov. Ct.); upheld [2002] N.S.C.A. 5, was invited to find that there are inherent limitations requiring aboriginals to hunt safely. The panel opted instead to consider safety as factor in determining prima facie infringement and, if necessary, justification pursuant to the Sparrow test. In my view, that is better approach. [13] The question is not whether the Aboriginal/Treaty right is to hunt safely. The question is not whether there is an Aboriginal/Treaty right to hunt at night with an artificial light. Separately, both of those questions have been decided in the affirmative. The issue in this case is whether the limiting legislation is a prima facie infringement on the appellants’ right to hunt for food and, if so, whether it is justifiable. Since Sparrow it has become unnecessary and perhaps inappropriate to attempt to define aboriginal hunting rights. The focus has shifted to the limiting legislation in both Aboriginal and Treaty hunting rights cases. In deciding whether s. 11.1(3) is valid legislation, it is necessary to apply the test established by Sparrow and expanded in the subsequent authorities. The trial judge did go on (pages 27 to 32) to consider infringement and justification pursuant to Sparrow. That, in my opinion, is where the safety purpose of the legislation ought to be considered. B. INFRINGEMENT [14] In Sparrow the Supreme Court of Canada clearly indicated that constitutionally protected hunting rights of aboriginal peoples (Aboriginal and Treaty) can be subject to federal and provincial legislation if the legislation does not constitute prima facie infringement of those rights. The analysis to be performed was described by the trial judge in paras. 66 and 67 of his judgment: [66] In Sparrow, supra, the Supreme Court of Canada established four stages of analysis in deciding whether Treaty right has been unjustifiably infringed: 1. Has the claimant demonstrated that he or she was acting pursuant to an Aboriginal right? 2. Has the right been extinguished prior to the enactment of s. 35(1) of The Constitution Act, 1982? 3. Has the right been infringed? and 4. Has the infringement been justified? [67] With respect to the first two stages of analysis, counsel have agreed that the Metis of Northwest Saskatchewan, including those of Sapwagamik, hold an existing and historical Aboriginal right to hunt moose and deer for food which had not been extinguished prior to 1982, and find it unnecessary to resolve the question as to whether the two Accused may exercise the right as members of the collective but will assume that they may. [15] When deciding whether there has been prima facie infringement of hunting rights of aboriginal peoples, Sparrow presented three questions: (a) Is the limitation unreasonable? (b) Does the regulation cause undue hardship? (c) Does the regulation deny the holders of right their preferred means of exercising that right? After careful consideration of the evidence the trial judge concluded that the practice of night hunting by means of an artificial light is highly dangerous. The prohibition, therefore, was found not only to be reasonable, but essential. The regulation presented no undue hardship and was never the preferred means of hunting by people of Sapwagamik. Further, the trial judge concluded that the legislation could not be considered a diminution of any assumed aboriginal right. That led him to the conclusion that there was no prima facie infringement of the appellants’ hunting rights in s. 11.1(3). [16] The onus of proof is upon the party challenging the legislation. Aboriginal and Treaty rights are not absolute. Reasonable regulations aimed at ensuring safety do not infringe Aboriginal or Treaty rights. See R. v. Badger, supra, at 817 to 818 and R. v. Sundown, 1999 CanLII 673 (SCC), [1999] S.C.R. 393 at para. 26. Section 11.1 is not unreasonable safety legislation. The evidence here did not show that the impugned regulation imposed an undue hardship on Metis in general or the appellants in particular. Similarly it was not proven that the people of Sapwagamik preferred as community to hunt at night with artificial lights. contrary preference emerges from both the Metis culture and their legislation contained in the Metis Wildlife and Conservation Act. As safety legislation section 13.1(3) does not infringe aboriginal rights, but it has conservation component that will be assessed later. [17] am unable to accept the appellants’ argument that because s. 11.1(1) exempts Reserves from the searchlight prohibition, safety was not the primary purpose of the regulation. According to the expert witness, Kenneth Brian Ness, Reserves were exempt out of respect for the Band Councils’ right to pass their own safety laws pursuant to the Indian Act. The trial judge’s conclusion that the questioned regulation was aimed at ensuring safety and did not infringe Aboriginal or Treaty rights to hunt for food was based on established law and the facts. Having found that there was no infringement, the trial judge went on to hold that had there been an infringement of aboriginal rights, it was justified pursuant to the test laid down in Sparrow. C. JUSTIFICATION [18] The trial judge correctly identified the test for justification of a legitimate regulation of a constitutional aboriginal peoples’ right:1. Does the legislation have avalid objective?2. Is the honour of the Crown at stake in dealing with the Aboriginal peoples?3. Has there been as little infringement as possible?4. Has the Aboriginal group been consulted? The objective was primarally safety, both from the words used in the legislation and the evidence introduced. The trust relationship between the Crown and aboriginal peoples was honoured. There was little, if any, infringement of hunting rights of Metis arising from the legislation. Consultations had taken place and some of the views of those consulted were incorporated into at least one regulation amendment. No compelling reasons were advanced why the trial judge’s conclusions were not valid. The regulation prohibiting night hunting with artificial lights, if an infringement, was justifiable. [19] On the assumption, but without finding, that Metis are Indians within the meaning of s. 12 of the NRTA, the appellants have aboriginal hunting rights protected by the Constitution. The NRTA in 1930 altered those hunting rights: (1) by eliminating commercial hunting; (2) by expanding the hunting area to include all unoccupied Crown land; and (3) by authorizing the Province to make conservation laws. (See: R. v. Badger, supra, per Cory J. at 815.) In Badger Mr. Ominayak was hunting on private land not being put to any visible use. That is the equivalent of hunting on unoccupied Crown land. Any law that constitutes prima facia infringement of the aboriginal right to hunt for food on unoccupied Crown land must be justified pursuant to the Sparrow test. See R. v. Badger, supra, at 823. But aboriginal rights are not absolute and, as already indicated, laws having a safety objective do not infringe aboriginal rights. The Province has jurisdiction to pass conservation laws. Section 11.1(3) restricts the method of hunting at night and to that extent it likely is a conservation infringement. If so, it is still permissible provincial legislation, but must meet the Sparrow justification test. That it easily does because of the strong safety factor. The appellants have failed to show any error in law by the judge in applying the justification test pursuant to Sparrow. D. DOCTRINE OF INTERJURISDICTIONAL IMMUNITY [20] If Metis people are Indians within the meaning of s. 91(24) of the Constitution Act, 1867 (conceded by the respondent), the appellants contend that the regulation in s. 11.1(3) cannot apply to them because the Province of Saskatchewan does not have jurisdiction to pass such legislation. Law making that touches Metis as Metis (Indians as Indians) is restricted to Parliament. See Peter Hogg on Constitutional Law of Canada, 3rd ed., vol. at p. 27-10. [21] The position of the respondent is that provincial hunting laws regulate aboriginal hunting rights; they do not extinguish them. Accordingly, such laws do not cross the interjurisdictional immunity boundary. Legislation prohibiting night hunting with artificial lights has been considered by the courts of several provinces. See R. v. Seward, [1999] C.L.N.R. 299 (B.C.C.A.), application for leave to appeal to Supreme Court of Canada denied (2000); R. v. Augustine, [2001] N.B.J. No. 9, application for leave to appeal to the Court of Appeal denied, (2001); R. v. Bernard, supra,; R. v. Paul, 1999 CanLII 11034 (QC CS), [2000] C.N.L.R. 262 (Que. S.C.). All courts found the practice of night hunting with lights to be dangerous and upheld the limiting provincial legislation. In Seward and Bernard, the Sparrow test of infringement and justification was the only test applied. No infringement was found in either case. [22] Again the trial judge reviewed the relevant authorities when considering interjurisdictional immunity. He found that notwithstanding s. 91(24) of the Constitution Act, 1867, provincial laws of general application apply proprio vigore to Indians and Indian lands, but can never extinguish aboriginal rights. The trial judge further concluded, based on R. v. Kruger, 1977 CanLII (SCC), [1978] S.C.R. 104, that s. 11.1 of the Regulations is provincial law of general application and does not extinguish the Metis right to hunt for food; rather, it restricts the method of hunting for food. It does not, therefore, touch the core of Indians at the heart of s. 91(24) of the Constitution. The interjurisdictional immunity boundary was not crossed. [23] Lamer C.J. in Delgamuukw v. British Columbia, 1997 CanLII 302 (SCC), [1997] S.C.R. 1010, distinguishes between provincial laws that infringe aboriginal rights and those that extinguish them. At para. 181 he stated: Second, as mentioned earlier, s. 91(24) protects core of federal jurisdiction even from provincial laws of general application, through the operation of the doctrine of interjurisdictional immunity. That core has been described as matters touching on “Indianness” or the “core of Indianness” (Dick, supra, at pp.326 and 315;’ also see Four B, supra,at p.1047 and Francis, supra, at pp.1028-29). The core of Indianness at the heart of s. 91(24) has been defined in both negative and positive terms. Negatively, it has been held to not include labour relations (Four B) and the driving of motor vehicles (Francis). The only positive formulation of Indianness was offered in Dick. Speaking for the Court, Beetz J. assumed, but did not decide, that provincial hunting law did not apply proprio vigore to the members of an Indian band to hunt and because those activities were “at the centre of what they do and what they are” (at p. 320). But in Van der Peet, described and defined the aboriginal rights that are recognized and affirmed by s. 35(1) in the similar fashion, as protecting the occupation of land and the activities which are integral to the distinctive aboriginal culture of the group claiming the right. It follows that aboriginal rights are part of the core of Indianness at the heart of s. 91(24). Prior to 1982, as result, they could not be extinguished by provincial laws of general application. [24] More recently the Saskatchewan Court of Appeal in R. v. Grumbo, 1998 CanLII 12345 (SK CA), [1998] C.N.L.R. 172, dealt with the issue of interjurisdictional immunity. At page 185 Sherstobitoff J. wrote: Mr. Grumbo argues that, the Crown having stipulated that Metis are Indians within the meaning of s. 91(24) of the Constitution Act, 1867, then the provisions of The Wildlife Act cannot apply to them as it would be legislation relating to Indians qua Indians. The weight of authority clearly says that provincial legislation relating to game is provincial law of general application affecting Indians not qua Indians but as inhabitants of the province, and is applicable to them, subject of course to s. 12 of the Natural Resources Transfer Agreement: Cardinal v. The Attorney General of Alberta, 1973 CanLII 980 (SCC), [1974] S.C.R. 695 [[1973] .W.W.R.. 205, 40 D.L.R. (3d) 553, 13 C.C.C. (2d) 1]; R. v. Horseman, at p. 934 [S.C.R.; pp. 104-5 C.N.L.R.]; R. v. Kruger and Manuel, 1977 CanLII (SCC), [1978] S.C.R. 104 [[1977] W.W.R. 300, 75 D.L.R. (3d) 434, 34 C.C.C. (3d) 377, 14 N.R. 495]. The principle is not affected by the judgment of the Supreme Court of R. v. Dick, [1985] S.C.R. 309 [1985 CanLII 80 (SCC), 69 B.C.L.R. 184, 23 D.L.R. (4th) 33, [1986] W.W.R. 1, [1985] C.N.L.R. 55, 22 C.C.C. (3d) 129, 62 N.R. 1], where the court was prepared to assume, for the purpose of the judgment, that the legislation in issue affected the Indianness of the accused, because it was specifically said that the court was not deciding the issue. Mr. Grumbo cannot succeed on this ground. The fact that no aboriginal right to hunt had been established in Grumbo does not, in my view, affect the principle laid down by the court. [25] Section 11.1(3) of the Regulations prohibits night hunting with searchlight. It does not extinguish or diminish the Constitutional right to hunt for food. Further, it is law of general application. It applies to every hunter except when hunting on Reserve. The trial judge concluded at para. [61] In my view, applying the authorities cited above to the facts of this case, the application of the Regulation to the Accused, assuming that they possess an Aboriginal right to hunt for food, as the parties agreed, does not extinguish that right but only curtails method of exercising it which is, in any event, universally disapproved by the holders of the right. Another consequence of the finding that night hunting with artificial lights is not tradition of the Metis of Northwest Saskatchewan is the corollary that Regulation prohibiting such hunting does not touch their core of Indianness. The question of whether the Regulation infringes the Aboriginal right of the Metis will be discussed below, but find that the Regulation is law of general application and that the doctrine of interjurisdictional immunity is not triggered by it. The Accused’ submission cannot prevail. [26] The legal authorities referred to by the trial judge support the conclusion arrived at by him that s. 11.1(3) of the Regulations does not touch the appellants’ core of “Indianness.” As stated by Cory J. in R. v. Horseman, 1990 CanLII 96 (SCC), [1990] S.C.R. 901, and again by Sherstobitoff J.A in R. v. Grumbo, supra, “...legislation relating to game is provincial law of general application affecting Indians not qua Indians but as inhabitants of the province... .” Treaty and Aboriginal rights protected by s. 35(1) of the Constitution have not been diminished by s. 11.1(3) of the Regulations. At most the right to hunt for food in this province has been restricted by the requirement that all persons exercising that right do so in safe manner. The regulation applies to the appellants as hunters, not as Metis. CONCLUSION [27] It cannot be said that the findings of fact by the trial judge are unsupported by the evidence or are unreasonable. Nor should the decision be set aside on the ground of a wrong decision on a question of law. The appellants have failed to come within the provisions of s. 686(1)(a)(i) or (ii) of the Criminal Code. The appeal is dismissed.

An appeal from a summary conviction for unlawfully using a searchlight for the purpose of hunting. The trial judge made three distinct and alternate findings: based on the evidence presented, night hunting with an artificial light is so inherently dangerous as not to attract protection as an aboriginal right; based on the Sparrow test for prima facie infringement and justification, s.11.1(3) of the Regulations withstands both prima facie infringement and justifiability scrutiny; based on the authorities, s.11.1(3) of the Regulations does not touch the appellant's core as Indians and, therefore, does not give rise to interjurisdictional immunity. The trial judge found that aboriginal hunting rights must be exercised subject to any legislation that expresses legitimate safety concerns. The facts were not in dispute. The appellants, who were of Metis heritage and engaged in the traditional Metis way of life, argued they enjoy hunting rights within the meaning of s.12 of the Natural Resources Transfer Act and are exempt from any hunting prohibition when hunting on unoccupied Crown land. The respondent acknowledged that if they are Metis, they enjoy an aboriginal right to hunt for food as protected by s.35(1) of the Constitution Act, 1982. However, they are subject to the regulation prohibiting night hunting with artificial lights (except when hunting on a Reserve) because its primary objective is safety. At issue was whether the appellants, as Metis, are subject to s.11.1(3)of the Saskatchewan Regulations passed pursuant to the Wildlife Act. HELD: The appeal was dismissed. 1)The appellants failed to come within s.686(1)(a)(i) or (ii) of the Criminal Code. 2)The findings were supported by the evidence and were reasonable. There was no wrong decision on a question of law. 3)Aboriginal and Treaty rights are not absolute. Reasonable regulations aimed at ensuring safety do not infringe these rights. Laws having a safety objective do not infringe aboriginal rights. As safety legislation, s.13.1(3) has a conservation component. The Province has jurisdiction to pass conservation laws. Legislation prohibiting night hunting with artificial lights has been considered by the courts of several provinces. All courts found the practice dangerous and upheld the limiting provincial legislation. 4)The Court preferred the approach taken in R. v. Bernard, which is to consider safety as a factor in determining prima facie infringement and if necessary, justification pursuant to the Sparrow test. The issue in this case is whether the limiting legislation is a prima facie infringement on the appellants' right to hunt for food and if so, whether it is justifiable. Since Sparrow, it has become unnecessary and perhaps inappropriate to attempt to define aboriginal hunting rights. Sparrow presented three questions when deciding whether there has been a prima facie infringement of hunting rights: is the limitation reasonable; does the regulation cause undue hardship; does it deny their preferred means of exercising that right. In Seward and Bernard, the Sparrow test of infringement and justification was the only test applied. No infringement was found in either case. 5)The trial judge concluded the practice of night hunting by means of artificial light is highly dangerous. The prohibition was found not only to be reasonable but essential. The regulation presented no undue hardship and was never the preferred means of hunting by people of Sapwagamik. The legislation could not be considered a diminution of any assumed aboriginal right and there was thus no prima facie infringement of hunting rights by s.11.1(3). 6)It was not accepted that because Reserves are exempted, safety was not the primary purpose. Reserves were exempt out of respect for Band Council's right to pass their own safety laws pursuant to the Indian Act. 7)The trial judge correctly identified the test for justification of a legitimate regulation as being whether the legislation has a valid objective; whether the honour of the Crown is at stake; has there been as little infringement as possible; has the aboriginal group been consulted. 8)Section 11.1(3) restricts the method of hunting at night and to that extent it likely is a conservation infringement. If so, it is still permissible provincial legislation. It meets the Sparrow justification test because of the strong safety component. 9)Provincial hunting laws regulate aboriginal hunting rights; they do not extinguish them. Accordingly, such laws do not cross the interjurisdictional immunity boundary. They do not touch the core of Indians at the heart of s.91(24) of the Constitution. The regulation applies to appellants as hunters, not as Metis.

2002skqb68.txt

QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2005 SKQB 513 Date: 20051208 Docket: F.L.D. No. 272/2005 Judicial Centre: Saskatoon, Family Law Division IN THE MATTER OF AN APPLICATION UNDER THE INTERNATIONAL CHILD ABDUCTION ACT, 1996 S.S. 1996, C. I-10.11 and RENAE YAMCHUK Counsel: D. M. McBride for the petitioner D. Z. Braun for the respondent FIAT R. S. SMITH J. December 8, 2005 Introduction 1) The parties are the parents of Joshua Aaron Jones, born April 10, 2003. They were married and the family home was in Connecticut. The respondent mother, Canadian citizen, has returned to Canada and now resides in the Town of Laird, Saskatchewan. 2) The petitioner father, an American citizen, continues to reside in Connecticut and brings an application under The International Child Abduction Act, 1996, S.S. 1996, c. I-10.11 (The “Act”) for an order directing Joshua be returned to Connecticut. The petitioner invokes the protocol of the Convention on the Civil Aspects of International Child Abduction (the “Convention”) which is scheduled to the Act. Article 12 of the Convention provides, in part: Where child has been wrongfully removed or retained in terms of Article and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith. The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in his or her new environment. 3) Sometime in 1998 or early 1999 the parties commenced friendship via the Internet. Their relationship remained web-based until it was agreed they should meet and they did so in October, 2001. The respondent travelled to the petitioner’s home in North Carolina and stayed for two weeks. Thereafter, she returned to Canada but travelled again to North Carolina in December, 2001. They became engaged in February, 2002. 4) The parties carried on their cross-border relationship until in or about September, 2002, at which point the petitioner, or perhaps the petitioner in discussion with the respondent the evidence is at odds on this point resolved to join the United States Navy. The petitioner observes that the plan was good one as it would afford him career and placement with solid health care benefits. 5) The start of navy career begins with eight weeks of boot camp and eight weeks of schooling. It was agreed that the respondent would return to Canada during that period. While in Canada, the respondent phoned the petitioner and advised she was pregnant. 6) As events unfolded, the petitioner graduated from boot camp and his father paid for the respondent to travel to the United States to attend the graduation ceremony. Shortly thereafter, the parties were married on February 1, 2003. After the marriage, the petitioner still faced his navy schooling and the respondent returned to Canada to be with her family for the child’s birth. The petitioner made arrangements to journey to Canada and was present when Joshua was born on April 10, 2003. 7) Approximately one week after Joshua’s birth, the petitioner travelled to Connecticut in order to take up his duties in the United States Navy. He took with him considerable amount of the respondent’s belongings and their dog. The respondent later joined the petitioner in Connecticut in May, 2003. They secured home in the town of New London, Connecticut. The respondent stayed at home caring for Joshua and the petitioner attended to his duties in the naval military police. 8) As 2003 wore on, the parties’ relationship became strained. They were new at being couple, new at being parents and the respondent missed her family. It was agreed that the respondent should visit her family in Canada in February, 2004. round trip ticket was purchased. The plan was for the respondent to visit for approximately one month. 9) After the respondent had been in Canada for some time, the petitioner attempted to contact her by phone and soon learned that she had rented her own apartment and had no intention to return to Connecticut. 10) The respondent resisted the petitioner’s entreaty for her to come home to Connecticut. By June, 2004, the petitioner concluded that he should take legal action. He initially contacted his local Senator’s office respecting action under the Convention but was inexplicably advised that relief was unavailable to him. He then retained local counsel in Connecticut and filed for divorce on June 28, 2004. He tried proceeding through court on his own but made little progress. He eventually hired an attorney who filed an application in Connecticut for an order for custody. 11) The petitioner was keeping the respondent advised of his activities and indicated that he was seeking custody in Connecticut. The respondent replied that she would return to the United States. It is unclear from the evidence whether the respondent returned for the purpose of addressing the Connecticut custody action or to attempt reconciliation. In any event, she did return on or about November 15, 2004. Upon her arrival in the United States, the parties resolved to attempt reconciliation. The petitioner’s attorney was advised to suspend legal proceedings. 12) While in Connecticut, attempting reconciliation, the respondent signed an “Appearance Notice” in relation to the Connecticut proceedings, apparently with view to facilitating sine die adjournment. Given the circumstances under which the Appearance Notice was signed, attach no factual or legal weight to it. 13) The parties resumed living together at their home in New London. The respondent travelled to Canada with Joshua on December 6, 2004. The petitioner says she indicated she was going to Canada to gather her belongings and would be returning. The respondent does not confirm the petitioner’s understanding of the trip, although she acknowledges that he had purchased return ticket for her and Joshua. 14) Very shortly after the respondent had landed in Canada, it became clear to the petitioner that she would not be coming back voluntarily. Connecticut legal proceedings were reactivated and on February 22, 2005, an order was granted in the Connecticut Superior Court providing that the respondent was to return Joshua to the State of Connecticut. In addition, the parties were to cooperate with the Family Relations Division for mediation proceedings. 15) On March 29, 2005, the petitioner commenced the initial procedures in Connecticut with respect to the Act in Saskatchewan. In due course, documentation under the Convention was forwarded to the Central Authority in Saskatchewan. Under the Convention, typically, it is the Central Authority that takes steps to secure the prompt return of the child to their habitual residence. The petitioner found this somewhat problematic in Saskatchewan. 16) It is clear from correspondence from the Central Authority in Saskatchewan that it had concern as to whether the petitioner’s case met the threshold issue of habitual residence. Article of the Convention provides: The Convention shall apply to any child who is habitually resident in Contracting State immediately before any breach of custody or access rights. The Convention shall cease to apply when the child attains the age of 16 years. 17) The Central Authority in Saskatchewan reviewed the number of days the child had spent in Canada from the time it was born until the time it received correspondence in April, 2005 and observed that the issue of habitual residency appeared to be an open question. 18) Rather than engage in lengthy debate with the Central Authority over the issue of habitual residency, the petitioner retained private counsel to bring an application under the Convention. 19) Mr. Justice McIntyre, in [S. (J.S.) v. (P.R.)], 2001 SKQB 283 (CanLII), (2001), 208 Sask. R. 243 (Q.B.), succinctly outlined the approach to be taken by the Court when faced with an application under the Convention. At para. 27 he opined: In proceedings under the Hague Convention it is incumbent upon the applicant to establish that the child was habitually resident in the requesting State immediately before any breach of custody or access rights (Article 4) and that there was wrongful removal or retention of the child as contemplated by Article 3. Once it has been determined that child has been wrongfully removed or retained the Hague Convention mandates the court to order the child's return forthwith (Article 12) unless the case fits into one of the exceptions set forth in Articles 12, 13 or 20. In this regard the onus is on the parent who would resist the return order. The exceptions are summarized in Thomson v. Thomson, [1994 CanLII 26 (SCC), [1994] S.C.R. 551], at pp. 594-5 as follows: 1. More than year has elapsed between the removal and the commencement of judicial proceedings and it can be demonstrated that the child is now settled into his new environment: Article 12; 2. The person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention: Article 13(a); 3. The person, institution or other body having the care of the person of the child had acquiesced in the removal or retention: Article 13(a); 4. There is grave risk that his or her return would expose the child to physical or psychological harm, or otherwise place the child in an intolerable situation: Article 13(b); 5. The child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take into account its views: Article 13; 6. The return of the child would "not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms": Article 20. Habitual residence 20) The threshold issue is the determination of the habitual residence of Joshua. Article is quite clear in stating that the child must have been habitual resident in Contracting State immediately prior to being wrongfully removed or retained. The term “habitual residence” is not defined in the Convention. In Chan v. Chow, 2001 BCCA 276 (CanLII), (2001), 15 R.F.L. (5th) 274 (B.C. C.A.), the British Columbia Court of Appeal has approved of definition of “habitually resident” applicable to the Convention. The Court stated at para. 31: For the purposes of the Convention, the best and most useful definition of "habitually resident" can be found in Re J. (A Minor) (Abduction: Custody Rights), [1990] A.C. 562 at 578 (H.L.) where Lord Brandon stated: The first point is that the expression "habitually resident" as used in Article of the Convention is nowhere defined. It follows, think, that the expression is not to be treated as term of art with some special meaning, but is rather to be understood according to the ordinary and natural meaning of the two words it contains. The second point is that the question whether person is or is not habitually resident in specified country is question of fact to be decided by reference to all the circumstances of any particular case. The third point is that there is significant difference between person ceasing to be habitually resident in country A, and his subsequently becoming habitually resident in country B. person may cease to be habitually resident in country in single day if he or she leaves it with settled intention not to return to it but to take up long-term residence in country instead. Such person cannot, however, become habitually resident in country in single day. An appreciable period of time and settled intention will be necessary to enable him or her to become so. During that appreciable period of time the person will have ceased to be habitually resident in country but not yet become habitually resident in country B. The fourth point is that, where child of J's age is in the sole lawful custody of the mother, his situation with regard to habitual residence will necessarily be the same as hers. 21) In short, and in summary: (i) Habitual residence is question of fact to be decided by reference to all of the circumstances of the case; (ii) Habitual residence is established by residing in place for an appreciable period of time with “settled intention” to reside there; (iii) child’s habitual residence is inextricably linked to the residence of his or her custodians. 22) At para. 33 of Chan v. Chow, the British Columbia Court of Appeal went on to say: The leading authority on the meaning of having "settled intention or purpose", is R. v. Barnet London Borough Council, [1983] A.C. 309 (H.L.) where Lord Scarman stated at p. 344: And there must be degree of settled purpose. The purpose may be one; or there may be several. It may be specific or general. All that the law requires is that there is settled purpose. This is not to say that the "propositus" intends to stay where he is indefinitely; indeed, his purpose, while settled, may be for limited period. Education, business or profession, employment, health, family, or merely love of the place spring to mind as common reasons for choice of regular abode. And there may well be many others. All that is necessary is that the purpose of living where one does has sufficient degree of continuity to be properly described as settled. 23) In the recent decision of Korutowska-Wooff v. Wooff, (2004), 2004 CanLII 5548 (ON CA), R.F.L. (6th) 104 (Ont. C.A.), the Ontario Court of Appeal provided useful summary of the definition of “habitually resident”, adopting the analysis from Chan: The term "habitually resident" is not defined in the Convention. However, the English courts have provided Canadian courts with guidance on the interpretation and application of this term in the cases of Re J. (A Minor) (Abduction: Custody Rights), [1990] A.C. 562 (H.L.), and R. v. Barnet London Borough Council, [1983] A.C. 309 (H.L.). See Chan v. Chow (2001), 2001 BCCA 276 (CanLII), 199 D.L.R. (4th) 478 at paras. 30-34 (B.C.C.A.); Kinnersley-Turner v. Kinnersley-Turner (1996), 1996 CanLII 1100 (ON CA), 94 O.A.C. 376 at paras. 19-20. The principles that emerge are: the question of habitual residence is question of fact to be decided based on all of the circumstances; the habitual residence is the place where the person resides for an appreciable period of time with "settled intention"; "settled intention" or "purpose" is an intent to stay in place whether temporarily or permanently for particular purpose, such as employment, family, etc.; child's habitual residence is tied to that of the child's custodian(s). 24) Typically, each province has legislation which defines or is referable to the concept of habitually resident. This is so in Saskatchewan under The Children’s Law Act, 1997, S.S. 1997, c. C-8.2. Section 15 of The Children’s Law Act, 1997 provides: 15(2) child is habitually resident in the place where he or she resided: (a) with both parents; (b) where the parents are living separate and apart, with one parent under custody agreement or order or with the consent, implied consent or acquiescence of the other; or (c) with person other than parent on permanent basis for significant period of time; whichever last occurred. (3) Where the child’s habitual residence cannot be determined pursuant to clause (2)(a), (b) or (c), the child is to be considered as habitually resident in the jurisdiction with which the child has the closest connection. (4) The removal or withholding of child without the consent of the person entitled to custody of the child does not alter the habitual residence of the child unless there has been acquiescence or undue delay in commencing due process by the person from whom the child is removed or withheld. 25) The case law is at odds as to whether reference should be had to the domestic statute when addressing the issue of habitual residency under the Convention. (See: Medhurst v. Markle (1995), 1995 CanLII 9273 (ON SC), 17 R.F.L. (4th) 428 (Ont. Gen. Div.) and Chan v. Chow, supra.) Without addressing the debate at length, would observe that s. of the Act provides that if there is conflict between the Act (and therefore the Convention) and any other provincial legislation, then the Act prevails. Further, in this case, the esoteric debate is moot as conclude the statutory definition of habitual residence under The Children’s Law Act, 1997 is not in conflict with the case law developed under the Convention. 26) Joshua was born in Canada on April 10, 2003. He and his mother joined his father in Connecticut one month later in May, 2003. In February, 2004, Joshua and the respondent returned to Canada for planned one-month visit. It is absolutely clear that the petitioner did not consent to the prolonged absence of the respondent and Joshua. Later in the year, in or about November 15, 2004, Joshua and the respondent returned to Connecticut and resumed living with the petitioner. As noted, it is an open question as to whether the return was to address the pending custody application or to attempt reconciliation. In any event, reconciliation was attempted. Joshua and the respondent then left Connecticut on December 6, 2004 and have not returned. The December, 2004 leaving, from the petitioner’s perspective, was for one month and as evidence of that he purchased round trip ticket for both the respondent and Joshua. 27) Counsel for the respondent invites the Court to tally the days Joshua has lived in Connecticut and compare them to the days he has lived in Saskatchewan and to determine habitual residence on that basis. With respect, do not believe that to be the proper approach. 28) For the purposes of an analysis under the Convention, the Court must fix some point in time for the purpose of determining the issue of habitual residence. conclude that crystalizing moment was in March, 2004 when the respondent did not return from her trip to Canada. 29) There is no question the petitioner had agreed that the respondent and Joshua could return to Canada to visit family for one month. When they did not return, the consent was implicitly withdrawn and at that point, for the purposes of the Convention, circumstances should be examined to determine habitual residence. 30) For the determination of habitual residence, the focus should be on the family’s circumstances at the time the petitioner’s consent to Joshua’s removal was withdrawn. That point is in late March, 2004. At that juncture, the family had secured home in New London, Connecticut and adopted traditional familial roles. The respondent was at home raising Joshua and the petitioner was attending to his duties in the navy. Through their conduct, the parties had evidenced a settled intention to make their home in Connecticut. 31) The respondent chose to unilaterally remove Joshua from that home sometime after returning to Canada in February, 2004. do not regard the brief resumption of cohabitation in November and early December, 2004 as impacting on the issue of determining habitual residence, nor does it go to the issue of settled intention. Compliance with Article of the Convention 32) Article of the Convention provides as follows: Any person, institution or other body claiming that child has been removed or retained in breach of custody rights may apply either to the Central Authority of the child’s habitual residence or to the Central Authority of any other Contracting State for Assistance in securing the return of the child. The application shall contain: (a) information concerning the identity of the applicant, of the child and of the person alleged to have removed or retained the child; (b) where available, the date of birth of the child; (c) the grounds on which the applicant’s claim for return of the child is based; (d) all available information relating to the whereabouts of the child and the identity of the person with whom the child is presumed to be. The application may be accompanied or supplemented by: (e) an authenticated copy of any relevant decision or agreement; (f) certificate or an affidavit emanating from Central Authority, or other competent authority of the State of the child’s habitual residence, or from qualified person, concerning the relevant law of that State; (g) any other relevant document. 33) The petitioner provided an affidavit of Mark W. Schoepfer, an attorney in the State of Connecticut, wherein he swears as to the laws of the State of Connecticut. The essence of Mr. Schoepfer’s evidence, which was not contradicted or attacked, was: (i) Under the laws of the State of Connecticut, in the absence of custody order, both parents have equal rights to their child; and (ii) Under the Connecticut general statutes, the father and mother of every minor child are joint guardians of the person of minor, and the powers, rights and duties of the father in regard to the child shall be equal. 34) Connecticut’s legislation is not dissimilar to Saskatchewan. It grants parents joint rights to child and therefore at the time the respondent wrongfully retained Joshua in Canada, by not returning in late March, 2004, she violated the petitioner’s rights to Joshua under Connecticut law. 35) Accordingly, the petitioner has demonstrated he has right to custody, and therefore meets the obligation under Article of the Convention. As have concluded Joshua’s habitual residence is and was Connecticut, the relief under Article 12 of the Convention is triggered. The debate before me focussed on the issue of habitual residence. There is no suggestion that the exceptions under the Convention under Articles 12, 13 or 20 are applicable. “Chasing orders” 36) As previously noted, the petitioner had obtained an interim order on February 22, 2005 directing Joshua to be returned to Connecticut. In addition to his application in Saskatchewan under the Act, he pursued his case in the Superior Court in Connecticut and on October 19, 2005 obtained an order which, inter alia, dissolved the marriage, ordered the respondent to return Joshua to the State of Connecticut and granted the petitioner sole custody. 37) The Superior Court orders were proffered in argument by the petitioner’s lawyer as evidencing his timeliness and keen interest in maintaining his relationship with Joshua and as buttressing his argument under the Convention. 38) Orders for custody in the original jurisdiction are typically referred to as “chasing orders”. The chasing orders are, as in this case, presented as evidence of the petitioner’s custodial right to the child and in support of the application under the Convention. 39) The solicitor for the respondent argues that the chasing order, particularly now that it has finalized sole custody in the name of the petitioner, should prompt this Court to make any order of return under the Convention conditional. 40) The respondent’s position is that if she must return to Connecticut, then the status quo prior to leaving that State should be restored, i.e. each parent having equal rights to the child. 41) The respondent posits to the Court that any order directing her and Joshua to return should be conditional upon the petitioner varying the order he obtained on October 19, 2005, vacating the award of sole custody to the petitioner and replacing it with something in the nature of joint custody. In that way the respondent could engage the debate in Connecticut on an even playing field. 42) Chasing orders have been the subject of comment in Canadian jurisprudence. In Thomson v. Thomson, supra, LaForest J. opined on the options available to the Court when the return of the child is warranted under the Convention but “chasing order” exists. As discussed earlier, the "chasing order" issued by the Scottish court complicates matters in the case at bar, for it makes one objective of the Convention, return to the status quo as it existed before the wrongful removal, impossible to achieve without taking additional action. The Convention does not provide specifically for remedial flexibility because it is based on the primary assumption that the wrongful removal of child necessarily has harmful effects (see the preamble; see also Anton, supra, at p. 543). In interpreting the Convention, courts have recognized that frequently an unqualified return order can be detrimental to the short term interests of the child in that it wrenches the child from its de facto primary caregiver. As Helper J.A. put it, at p. 215, "children must not be made to suffer twice over as result of their parents' wrongdoing". The younger the child, the greater the need for the courts' concern. This is especially so in fact patterns like the present to which the travaux préparatoires refer to as "in effect, the reverse of the usual child abduction case" (Dyer Report, Actes et documents, supra, at p. 40). Given the preamble's statement that "the interests of children are of paramount importance", courts of other jurisdictions have deemed themselves entitled to require undertakings of the requesting party provided that such undertakings are made within the spirit of the Convention: see Re L., supra; C. v. C., supra; P. v. P. (Minors) (Child Abduction), [1992] F.L.R. 155 (Eng. H.C. (Fam. Div.)); and Re A. (A Minor) (Abduction), supra. Through the use of undertakings, the requirement in Article 12 of the Convention that "the authority concerned shall order the return of the child forthwith" can be complied with, the wrongful actions of the removing party are not condoned, the long-term best interests of the child are left for determination by the court of the child's habitual residence, and any short-term harm to the child is ameliorated. 43) In Thomson v. Thomson, the concern over chasing orders, at the Supreme Court level, was rendered academic by way of undertakings given by the father not to take physical custody of the child upon his return to Scotland until Court in that jurisdiction permitted. 44) Similarly, in Mahler v. Mahler (1999), 1999 CanLII 14255 (MB QB), R.F.L. (5th) 428 (Man. Q.B.), Justice Little of the Manitoba Queen’s Bench addressed the debate. Mahler involved situation where children were moved from New York to Manitoba. The spouses had previously entered an interspousal agreement which provided for joint custody with the primary residence to be with the mother. The mother removed the children from New York State without the husband’s consent and returned to Manitoba. The husband obtained an ex parte order which granted him sole custody. Little J. observed at para. 37: Courts frequently are faced with the fact that change in primary caregiving might occur as result of "chasing order" issued in the former jurisdiction. Psychological harm to children may result by reason of the severance of that primary caregiver relationship. Yet in all cases to which my attention was drawn by counsel, the children have been ordered returned. 45) Little J. concluded that it was appropriate to impose some sort of condition on the petitioner and provided at para. 45: 45(e)(1) Mr. Mahler will apply to the New York Family Court to vary the existing sole temporary custody order to terms which reflect the status quo, and pending full hearing there. In this case, that is the wording of the separation agreement i.e. "joint legal custody to the parties with physical custody to the mother and liberal visitation to be agreed upon". 46) The guidance from the aforementioned judgments is tempered by the observations of Madam Justice L’Heureux-Dube who opined in V.W. v. D.S., 1996 CanLII 192 (SCC), [1996] S.C.R. 108 at para. 36: The automatic return procedure implemented by the Act is ultimately intended to deter the abduction of children by depriving fugitive parents of any possibility of having their custody of the children recognized in the country of refuge and thereby legitimizing the situation for which they are responsible. To that end, the Act favours the restoration of the status quo as soon as possible after the removal of the child by enabling one party to force the other to submit to the jurisdiction of the court of the child's habitual place of residence for the purpose of arguing the merits of any custody issue. The Act, like the Convention, presumes that the interests of children who have been wrongfully removed are ordinarily better served by immediately repatriating them to their original jurisdiction, where the merits of custody should have been determined before their removal. Once that determination has been made, the Convention and the Act give full effect thereto by protecting custody rights through the mandatory return process. 47) In similar vein, McIntyre J. observed at para. 56 in [S.(J.S.) v. S. (P.R.)], supra: Simply put, the Hague Convention presumes that the state in which the child was habitually resident ought to determine custody issues. parent is not permitted to try and gain an advantage by virtue of removing child from that jurisdiction. It is only in the narrow circumstances contemplated in Articles 12, 13 and 20 of the Hague Convention that the presumption of return may be displaced. 48) In my view, the conditional return order proposed by the respondent is inappropriate. Having determined that an order for return is warranted under the Convention, it does not lie with a Saskatchewan Court to impose a revised starting point for the process of determining custody in Connecticut. This Court’s role concludes upon the determination the petitioner has made out a case for an order for return. 49) This is not situation where the Saskatchewan Court has any concern that the judicial system in the state of habitual residence will not operate fairly. have no hesitation in extending to the Connecticut Superior Court full faith and credit that they will address the issue of custody of Joshua with the best interests of the child as its primary focus. 50) Given the time of year, the child’s tender years, and Ms. Yamchuk’s limited resources, will allow for modest period of time for the return to be accomplished. 51) Therefore, I direct the respondent, Renae Yamchuk, previously known as Renae Jones, to return the child, Joshua Jones, born April 10, 2003, to the State of Connecticut, United States of America. Such return is to be accomplished by January 8, 2006. J. R. S. Smith

FIAT: The parties are the parents of a son born April 10, 2003. They are married and the family home is in Connecticut. The respondent mother is a Canadian citizen and has returned to Canada and now resides in Laird, Saskatchewan. The petitioner is an American citizen and continues to reside in Connecticut and brings an application under The International Child Abduction Act for an order directing the child to be returned to Connecticut. HELD: The respondent is directed to return the child to the State of Connecticut by January 8, 2006. 1) The child was born in Canada. He and his mother joined his father in Connecticut one month later in May 2003. In February 2004 the child and his mother returned to Canada for a planned one-month visit. It is clear that the petitioner did not consent to the prolonged absence of the respondent and the child. In about November 2004 the respondent and the child returned to Connecticut and resumed living with the petitioner. Reconciliation was attempted. The respondent and child left in December 2004 and have not returned. The crystallizing moment was in March 2004 when the respondent did not return from her trip to Canada. For the purposes of the Convention, circumstances should be examined to determine habitual residence. At this point the parties had adopted traditional roles. The respondent was at home raising the child and the petitioner was attending his duties in the navy. Through their conduct the parties had evidenced a settled intention to make their home in Connecticut. The respondent chose to unilaterally remove the child from that home. 2) The petitioner had obtained an interim order in February 2005 directing the child to be returned to Connecticut. He also pursued his case in the Superior Court in Connecticut and on October 2005 obtained an order dissolving the marriage, directing the respondent to return the child to Connecticut and granted the petitioner sole custody. The respondent now asks that any order directing her and the child to return should be conditional on the petitioner varying the order he obtained in October 2005, vacating the award of sole custody to the petitioner and replacing it with something in the nature of joint custody. The conditional return order proposed by the respondent is inappropriate. Having determined that an order for return is warranted under the Convention, it does not lie with a Saskatchewan Court to impose a revised starting point for the process of determining custody in Connecticut. This Court's role concludes upon the determination the petitioner has made out a case for an order for return.

2_2005skqb513.txt

QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2008 SKQB 429 Date: 2008 10 24 Docket: Q.B. 32 of 2008 Judicial Centre: SWIFT CURRENT BETWEEN: MENDHAM-BURSTALL CREDIT UNION and DEREK JOHN MOORE AND SHERI LYNN MOORE Counsel: Karl P. Bazin, Q.C. for the plaintiff No one appearing for the defendants FIAT GUNN J. October 24, 2008 [1] The plaintiff seeks an order confirming the order nisi for judicial sale. HISTORY OF THE PROCEEDINGS [2] The defendants entered into mortgage with the plaintiff on April 14, 2005 for land described as: Lot 4, Block 17, Plan No. 85SC07177, Extension 0, Burstall, SK. The mortgage was renewed for year period with maturity date of March 14, 2008. [3] On February 20, 2008, notice of intention to apply for an appointment to hear an application for leave to commence an action under The Land Contracts (Actions) Act, R.S.S. 1978 c. L-3, (“the Act”) was served on the Provincial Mediation Board. [4] On March 20, 2008, the plaintiff applied ex parte for an appointment for hearing of an application pursuant to the Act for leave to commence an action. This was not in compliance with s. 3(2) of the Act which prescribes that an application may be brought after the expiration of 30 clear days from the date of service on the Provincial Mediation Board. [5] The affidavit of Randy Schneider, the manager of the Mendham-Burstall Credit Union, was filed in support of the application. The form of the affidavit was not in compliance with Rule 318 and 319 of the Queen’s Bench Rules of Court. The only evidence of the value of the property at this stage is contained in paragraph 10 of the above noted affidavit, sworn on March 25, 2008 in part as follows: That the land.... is in my opinion of the value of $30,000.00 to $45,000.00 and no more. The Credit Union understands that it is listed at $70,000.00, but the Credit Union’s position is that this is overvalued, and would likely sell in the $30,000.00 to $45,000.00 range, based on the Credit Union’s knowledge of property being sold in the area. [6] An appointment for leave to commence action was granted and the hearing was set for April 21, 2008. The appointment was served on both defendants on April 3, 2008. The defendants did not appear on April 21, 2008 and leave was granted for the plaintiff to commence action. statement of claim was issued April 23, 2008 and served on the defendants on May 7, 2008. The statement of claim has not been noted for default. [7] An application was made for an order nisi for sale of the land June 16, 2008. An affidavit of default (“for order nisi for foreclosure”) was sworn by Randy Schneider on June 10, 2008. Again this was not in compliance with Rule 318 and 319. The evidence of value contained in this affidavit is set out in paragraph in part as follows: ...the land.... is in my opinion of the value of $30,000.00 to $45,000.00 and no more. This opinion is based [sic] discussions with the real estate company, Royal LePage Community Realty of Maple Creek, Saskatchewan. [8] The amount owing under the mortgage was described as being the arrears of principal of $29,994.98 and arrears of interest at $995.03 or total of $30,990.01. [9] The order nisi for sale was granted on June 16, 2008, but it incorrectly described the amount owing as being $33,120.01. [10] The following paragraphs of the order nisi for sale have relevance: ....in default of payment into Court....the mortgaged land shall be sold under the direction of the law office of MacBean Tessem, through licensed real estate broker, who shall offer the said land for sale under listing agreement on the terms and conditions hereinafter provided. ... (a) the property will be listed for sale for six months. The listing price shall be $45,000.00, provided that the listing price may, in the Plaintiff’s discretion, be reduced by $2,500.00 for each month that the mortgaged land does not sell, but the listing price shall not be reduced to less than $30,000.00; ... (g) the Plaintiff and the Defendant(s) are given leave to submit offers to purchase. [sic] in the event that the offeror is the Plaintiff, the deposit and the balance of the purchase price need not be paid into Court; [11] By motion returnable October 14, 2008, the Plaintiff seeks an order confirming the sale of the land to the plaintiff for $35,000.00. The evidence filed in support of the application includes an affidavit of Randy Schneider, sworn September 30, 2008. In his affidavit, Mr. Schneider deposes, at paragraph 3, that “the plaintiff will offer to purchase the mortgaged property for the sum of $35,000.00.” DISCUSSION: [12] There are variety of procedural issues with the application as outlined in the background. The ex parte application for the appointment for hearing for the application by the proposed plaintiff for leave to commence action was premature as 30 clear days had not expired after service on the Provincial Mediation Board prior to the making of the application. The statement of claim was not noted for default prior to the application being made for the order nisi for sale. The amount shown to be owing by the defendants on the order nisi for sale was incorrect as the amount includes items in addition to the principal outstanding and the interest arrears. The order nisi for sale directs that the property be listed for six months. That would require the property to be listed until December 16, 2008. There does not appear on the evidence to be sale to be confirmed. The plaintiff is prepared to make an offer, but does not appear to have done so. [13] There is limited evidence with respect to the value of the property and no evidence from the licensed realtor who was charged with the responsibility of listing the property as to the steps taken. The draft bill of costs submitted by counsel contains numerous items which occurred prior to the granting of leave and there is no order from the court authorizing pre-leave costs, nor any evidence as to why the court might consider pre-leave costs. [14] Counsel invites the court to apply Rule 5(1) with respect to the irregularities identified. am prepared to do so with some limitations. I will not set aside the order nisi for judicial sale on the basis that the application for leave was premature or that the statement of claim was not noted for default. [15] However, the application for confirmation of the sale is premature as the property is to be listed for six months, and on the basis that there is no sale to be confirmed based on the evidence filed. On renewed application for confirmation of judicial sale, it would be preferable to have evidence directly from the listing agent setting out the steps taken to market the property and detailing for the court any offers received. There will be no costs awarded for this unsuccessful application.

FIAT: The plaintiff seeks an order confirming the order nisi for judicial sale. HELD: Application dismissed. The Court will not set aside the order nisi for judicial sale on the basis that the application for leave was premature or that the statement of claim was not noted for default. However, the application for confirmation of the sale is premature as the property is to be listed for 6 months. There does not appear on the evidence to be a sale to be confirmed. The plaintiff is prepared to make an offer, but does not appear to have done so. The draft bill of costs submitted contains numerous items which occurred prior to the granting of leave and there is no order from the Court authorizing pre-leave costs, nor any evidence as to why the Court might consider pre-leave costs. On a renewed application for confirmation of judicial sale, it would be preferable to have evidence directly from the listing agent setting out the steps taken to market the property and detailing for the Court any offers received. There will be no costs awarded for this unsuccessful application.

9_2008skqb429.txt

C.A. No. 104705 NOVA SCOTIA COURT OF APPEAL Chipman, Hart and Jones, JJ.A. BETWEEN: DOROTHY A. ROBINSON and EDWARD I. ROBINSON Respondent Brian J. Hebert for the Appellant Gerald R.P. Moir, Q.C. for the Respondent Appeal Heard: September 28, 1994 Judgment Delivered: October 4, 1994 THE COURT: The appeal is allowed with costs as per reasons for judgment of Chipman, J.A.; Hart and Jones, JJ.A., concurring. CHIPMAN, J.A.: This is an appeal from a decision of a judge of the Supreme Court in Chambers granting an application under s. 21(4) of the Nova Scotia Evidence Act, R.S.N.S. 1989, c. 154 ordering inspection of banking records to the appellant, but imposing two limitations thereon. The parties were divorced. The appellant appealed to this Court in 1993 from decision of Mr. Justice Boudreau dividing property between them as separated spouses pursuant to the Matrimonial Property Act. This Court allowed the wife's appeal in part holding among other things that the judge erred in ruling inadmissible certain evidence about the value of scallop licenses. This Court found it impossible to value the fishing licenses of the respondent as there was no reliable evidence of their value. This Court remitted the matter to the Supreme Court for determination on evidence to be adduced by the parties of the value inter alia of the fishing licenses and boats of the respondent. In the course of preparation for the new trial, the appellant applied to the Supreme Court for the order under s. 21(1) of the Evidence Act. The respondent testified at the hearing. The issue on appeal before us related to records of company known as Fundy Associates Limited and vessel owned by it called “the Lady Marion II". The respondent testified that he had no significant interest in the company Fundy Associates Limited and that he only owned one share in it although he was listed as Director and Officer. He maintained that this was mere formality. The Chambers judge recited request of respondent's counsel that the documentation to be produced be limited to that subsequent to the original trial of this matter in October of 1991. The Chambers judge observed that it did seem that the respondent had some involvement in the initial purchase of "the Lady Marion II" and had given personal guarantee with respect to it. The Chambers judge held that he would grant the order respecting examination of the records respecting Fundy Associates Limited and "the Lady Marion II" with two limitations; (a) that the examination be limited to income received by the respondent from these entities and (b) because counsel for the respondent said that all information had been provided up to the original trial, the examination would be limited to material from that time forward. review of the decision of this Court indicates that the Court was definitely not satisfied with the disclosure of the respondent respecting his fishing licenses and vessels. The new trial was ordered so that all relevant evidence respecting these items in contest could be obtained. The Chambers judge has exercised his judgment in granting the order. However, he has given no valid reasons for the two restrictions and we order that they should be deleted. The respondent has since gone into bankruptcy. He contends that the examination ordered by the Chambers judge is nothing but a duplication of the detailed and searching examinations that will be made of his assets by the trustee in the bankruptcy proceedings. That may or may not be the case but for the purposes of securing full disclosure in this proceeding which is the one with which we are concerned, it is an insufficient reason to limit full disclosure. The appeal is allowed and the two restrictions placed in the order of the Chambers judge respecting the books or records relating to Fundy Associates Limited or the motor vessel "Lady Marion II" are deleted. The appellant shall recover her costs of this appeal which are fixed at $500.00, plus disbursements. Chipman, J.A. Concurred in: Hart, J.A. Jones, J.A. 1990 S.A. No.1209‑000109 IN THE SUPREME COURT OF NOVA SCOTIA BETWEEN: DOROTHY ROBINSON and EDWARD ROBINSON ORDER BEFORE THE HONOURABLE JUSTICE DONALD M. HALL, IN CHAMBERS. UPON READING the application and all other documents on file herein; AND UPON READING the affidavit of Brian J. Hebert dated November 9, 1993; AND UPON HEARING Brian J. Hebert, solicitor for the Petitioner, Dorothy Robinson; AND UPON HEARING S. Clifford Hood, Q.C., solicitor for the Respondent, Edward Robinson; C.A. No. 104705 NOVA SCOTIA COURT OF APPEAL BETWEEN: DOROTHY A. ROBINSON and EDWARD I. ROBINSON Respondent REASONS FOR JUDGMENT BY: CHIPMAN, J.A.

The parties divorced - the appellant later appealed the trial decision dividing property between them as separated spouses. Her appeal was allowed in part, the court holding the judge erred in ruling inadmissible certain evidence about the value of scallop licences. The matter was remitted to Supreme Court for determination on evidence to be adduced by the parties of the value of the respondent's fishing operation. In preparation, the appellant applied to the Supreme Court for an order to inspect the respondent's bank records pursuant to s. 21(1) of the Evidence Act. The respondent argued he had limited involvement in the enterprise being discovered. The judge granted the order with limitations: the examination was to be limited to income received by the respondent and covering the period from the trial date forward. The appellant appealed, arguing the limitations disallowed full disclosure. In the interim, the respondent went into bankruptcy and argued the examination would be fully conducted by the trustee. Allowing the appeal, that a possible duplication was no reason to limit full disclosure.

6_1994canlii4076.txt

1990 S.H. No. 73433 IN THE SUPREME COURT OF NOVA SCOTIA TRIAL DIVISION BETWEEN: JAMES CLUNIE GOURLAY and EILEEN ELLEN GOURLAY and GERRY L. OSMOND and CATHY OSMOND Defendants HEARD: at Halifax, Nova Scotia, before the Honourable Mr. Justice Jamie W.S. Saunders, on June 11, 1991 (in Chambers) POST HEARING June 14, 1991 RECEIVED: DECISION: June 28, 1991 COUNSEL: R. Ritchie Wheeler, Esq. solicitor for the Plaintiffs Gerry L. Osmond and Cathy Osmond, the Defendants, representing themselves 1990 S.H. No. 73433 IN THE SUPREME COURT OF NOVA SCOTIA TRIAL DIVISION BETWEEN: JAMES CLUNIE GOURLAY and EILEEN ELLEN GOURLAY and GERRY L. OSMOND and CATHY OSMOND Defendants SAUNDERS, J.: This application involves damages claimed for mental distress following an aborted real estate transaction. The plaintiffs appeared before Mr. Justice Tidman on February 7, 1991 and obtained an Order striking out the defendants' defence and entering summary judgment against the defendants with the plaintiffs' damages to be assessed. Mr. R. Ritchie Wheeler appeared on behalf of the plaintiffs in Chambers on June 11 and after hearing his submissions and reviewing the lengthy affidavits and other documentation in the file allowed the application. first determined that all necessary requirements for service had been complied with under the C.P. Rules. allowed the plaintiffs' several claims for special damages (more particularly described, infra) but reserved on the issue of damages for mental distress until had chance to consider the authorities. asked Mr. Wheeler to file post‑hearing brief and am grateful for the very careful and thorough analysis provided in his memorandum of June 14th. Before commenting on the several heads of damage must first explain the background. Mr. and Mrs. Gourlay claim damages from Mr. and Mrs. Osmond due to the defendants' inability to complete the purchase of the plaintiffs' home on June 29, 1990. The circumstances arising both before and after the closing date are detailed in lengthy affidavit deposed to by James Gourlay on November 26, 1990, also referencing numerous exhibits appended thereto. The salient features are that an agreement of purchase and sale was entered into between the parties on April 6, 1990. The closing date was scheduled for June 29, 1990. This agreement was conditional upon the defendants' obtaining financing within twelve banking days of the date of the offer, and also conditional upon the defendants' selling their existing real property. As term of the agreement the plaintiffs were permitted to continue to list their home for sale and if they received another satisfactory offer, the defendants were permitted 12 hours to either waive the condition or the plaintiffs would be at liberty to accept the new offer. On April 18, 1990 the plaintiffs received another offer to purchase their home at sum greater than that promised by the defendants. Accordingly, notice was given to the defendants Later that day the defendants waived the conditional sale clause. The plaintiffs then considered the defendants' offer to be firm offer and accordingly, the next day April 19, 1990 Mrs. Gourlay submitted an offer to purchase condominium property. On May 4, 1990 the plaintiffs' solicitor wrote to the defendants' solicitor to confirm that Mrs. Gourlay was purchasing another property and would be moving into that other residence on the day of the closing. On June 28, 1990 the plaintiffs' solicitor was first notified by the defendants' solicitor that the defendants were having difficulties arranging financing. Later that day the plaintiffs' solicitor tendered closing documentation upon the defendants' solicitor. This documentation included an executed warranty deed. Through inadvertence the legal description of the plaintiffs' property was omitted from the deed. The plaintiffs' solicitor was advised by the defendants' solicitor on the closing date that the Osmonds had not obtained mortgage financing. Accordingly, no tender of closing proceeds was made. Mrs. Gourlay was devastated by the news. She broke down sobbing and had to be escorted to the staff room at her place of employment. She was so upset that her husband had to pick her up at noon and take her home. Mrs. Gourlay was so distraught that her husband had to physically carry her to the car. As noted earlier, Mrs. Gourlay was committed to purchase condominium property from Mr. Mark A. Johnson. Financing was all arranged. The plaintiffs' solicitor called Johnson's solicitor to advise of the potential problem with the sale of the plaintiffs' property as Mrs. Gourlay required funds from that sale in order to purchase the condominium. The domino effect was compounded because Johnson was scheduled to purchase lot of land and complete the construction of dwelling on that lot in contemplation of his sale of the condominium to Mrs. Gourlay. As well, Mr. Gourlay was the principal in company and expected to meet his payroll on June 29, 1990 from the proceeds of the sale of their home. All of these repercussions together with the anguish suffered by Mr. and Mrs. Gourlay were detailed in their lawyer's letter to the defendants' solicitor dated June 29, 1990. The plaintiffs made it clear that all of these circumstances would be included in their eventual claim for damages. On July 6, 1990 the plaintiffs and their solicitor met with Johnson and his lawyer in an attempt to salvage Mrs. Gourlay's purchase of the condominium property notwithstanding that the plaintiffs' sale had not been completed. During that meeting Johnson's solicitor served the plaintiffs with their Originating Notice (Action) and Statement of Claim whereby Johnson sued Gourlay for failure to complete. Finally, after much manoeuvering and considerable hardship Mrs. Gourlay completed her purchase of the condominium property on July 12. In order to do that, protracted negotiations led to the following arrangements: (a) She was required to quit claim her interest in their home to her husband because her employer (The Royal Bank of Canada), also the mortgagee for the condominium (Johnson) property would not allow her to be named on two mortgages on two separate properties; (b) The existing mortgage on the Gourlay residence had to be paid out; (c) Mr. Gourlay was required to remortage their home for an additional $19,650.00 in order to provide his wife with sufficient downpayment to purchase the condominium; (d) Mrs. Gourlay was required to enter into conventional mortgage for the condominium. On July 20, 1990 the plaintiffs received new offer to purchase their home from people named Chislett. The original offer was for $118,000.00 and the Gourlays countered at $120,000.00, which counter offer was accepted. However, the agreement was subject to the intended purchasers' completing an inspection, which disclosed problem with the chimney. Accordingly the purchase price was reduced to $118,500.00, and the deal closed on September 14, 1990 at that price. In the meantime the Gourlays sued the defendants on July 6, 1990. Service was effected upon the defendants' solicitor. On July 16, 1990 the Osmonds filed defence contending that the Gourlays were not in position to close on June 29 because the deed which was tendered did not contain description to the property. In September information came to the attention of the plaintiffs that the defendants were transferred with the Canadian Armed Forces and intent on relocating elsewhere in Canada. Their solicitor served series of Interrogatories upon the defendants' solicitor seeking to verify this and other particulars. These were served on September 21,1990. Later that day the defendants' solicitor filed Change of Solicitor form indicating that the defendants would henceforth represent their own interests and identifying their proper address in Borden, Ontario. Telephone inquiries between solicitors then confirmed that the defendants had sold their home in Lower Sackville on August 31, 1990 and moved to Ontario. All of this then caused the plaintiffs to serve Notice to Admit upon the defendants. This went unanswered and led to the plaintiffs' application for summary judgment in February, 1991. On the affidavit evidence before me was satisfied that the special damages claimed by Mr. and Mrs. Gourlay are entirely reasonable and fair. They are as follows: 1. Diminution of value $3,500.00 2. Property Taxes 390.48 3. Interest paid on mortgage 260.00 4. Interest paid on interim financing 1,767.04 5. Costs Interest re: Collins Grove 186.09 6. Legal Fees Disbursements 461.00 7. Title Searches 94.00 SUB‑TOTAL $6,658.61 and order these be paid by the defendants. As noted, the plaintiffs' claim damages for mental distress and they propose figure of $5,000.00. The upheaval and panic visited upon Mr. and Mrs. Gourlay by these defendants is graphically depicted in their affidavits. can do no better than quote from Mrs. Gourlay's own sentiments: "19. THAT during the afternoon of the day prior to the agreed closing date, received telephone call at work from my solicitor. He advised me that he had just received telephone call from the Osmonds' lawyer who had announced that his clients had no financing, nor had any realistic hope of financing and probably could not close the following day. was devastated. The movers were scheduled to arrive first thing the next morning. My furniture and appliances were disassembled and disconnected ready for the move. As stated, all of my possessions were in cardboard boxes. Even worse, was scheduled to complete purchase the following day, which could not close without my share of the equity from the Balsam Place property. 20. THAT was so shaken upon hearing this news from my solicitor that could not continue to work. broke down sobbing and had to be escorted to the staffroom where waited, while being tended to by another staff member, for my husband to arrive; 21. THAT my husband had to escort me home that day. was already scheduled to be off from work the following day on June 29th. Instead of completing my move as had planned, was unable to do anything but sit at home amid the cardboard boxes. did not want to unpack my possessions in the hopes that the sale of Balsam Place and the purchase of 83 Collins Grove, Unit #6 could be salvaged. My purchase of the condominium property did not complete the following day and became very depressed. could not sleep unless was tranquilized. did not eat, nor did even bother to get dressed in the morning. Friends had to tend me almost constantly. was unable to attend work the following week. Attached hereto and marked Exhibit "K" to this my Affidavit is true copy of letter from my employer advising the dates that missed from work. should note that June 29, 1990 was the day had scheduled to be off to move and June 30th, July 1st and July 2nd were the days of the Canada Day weekend; 22. THAT was so depressed bacause of the failure of the real estate transactions to close, that on June 29, 1990 attended my family doctor. He prescribed tranquilizers for me and in addition, in the following two (2) months, attended upon him for therapy. Attached hereto and marked Exhibit "L" to this my Affidavit is true copy of correspondence from my doctor; 23. THAT my stress and depression became even more heightened on July 6, 1990 when my solicitor advised me that the Johnsons were suing me. have never been sued before in my life. did not know what was going to do. had hoped that something could have been worked out with the Johnsons, however, understood that they were in the same position as me in that they had also been scheduled to purchase property on June 29, 1990; 24. THAT by July 12, 1990, was able to complete the purchase of the condominium and avoid having judgment against me. However, the purchase of the condominium was no easy matter. The purchase price of the condominium property was Eighty Thousand Dollars ($80,000.00). had already been approved for seventy‑five percent (75%) mortgage by my employer, the Royal Bank of Canada. However, still had to come up with downpayment of Twenty Thousand Dollars ($20,000.00) plus closing costs. had no money myself as had been relying on the proceeds from the sale of Balsam Place in order to complete my purchase. approached my employer in an effort to borrow the money in the interim and repay the loan once the Balsam Place property sold. However, my employer was unable to lend me interim financing for number of reasons. First, this would in effect have one hundred percent (100%) financed the purchase of the condominium. Given the market conditions at the time, there was simply no indication as to when the Balsam Place property would sell, and my employer simply could not agree to this proposal. Second, given my income and the amounts would have had to repay on the mortgage, plus interim financing, this was not an economically viable option; 25. THAT as result, had to turn to my husband for help. knew that things were very difficult for him. He is principal in publishing company in Dartmouth. was aware that in the months preceding the scheduled closing date there had been number of postal strikes which severely interrupted his business. He was under severe financial pressures and was on the brink of losing his business. He was going to use his share of the equity from the sale of Balsam Place to pay off certain business debts; 26. THAT nevertheless, my husband agreed to assist me in whatever way he could so that could complete the purchase of the condominium property. The only way that this could be done was to remortgage the Balsam Place property for higher amount and to use the excess proceeds for the downpayment on the condominium property. Unfortunately, my employer could not allow me to carry mortgage on both the Balsam Place property and the condominium. Accordingly, it was necessary to transfer title in Balsam Place to my husband alone and have him re‑mortgage Balsam Place for higher amount and higher interest rate. This was done, and as stated completed the purchase of the condominium property on July 12, 1990. However, was still suffering from stress resulting from the events of the previous two (2) weeks;" (the plaintiffs' joint affidavit deposed to May 24, 1991). There is no question but that her severe emotional stress requiring subsequent medication, medical treatment and professional therapy was causally linked to the aborted real estate transaction on June 29. Her physician, E.G. Nurse, M.D. described Mrs. Gourlay's "acute emotional breakdown" in his letter dated March 1, 1991 which reads: "March 1, 1991 RE: MRS. EILEEN GOURLAY 832 COLLINS GROVE UNIT #6 DARTMOUTH, NOVA SCOTIAB2W 4G3 TO WHOM IT MAY CONCERN: The above named is patient under my care. She has been patient of mine for many years and has always been very stable and confident individual. During the latter part of June she suffered severe emotional stress and on June 29 she was examined by myself and at that time felt that she was emotionally disabled, suffering from stress over the failed sale of the house. She required medication and was seen by myself on three separate occasions between June 29 and September 1, requiring relatively intense psychotherapy and very slow recovery period. feel this acute emotional breakdown was stimulated entirely by the failure of her home to sell and this precipitated the multitude of events that followed. If can be of further assistance, do not hesitate to let me know. Yours truly, E.G. Nurse, M.D. EGN/pb" While Mr. Gourlay's health was not affected, his inconvenience and personal sacrifice was no less exasperating. His sentiments are captured in para. 27ff. of his affidavit and quote: "27. THAT I, James Gourlay, also suffered stress as result of the Osmonds' failure to complete the transaction. am self‑employed principal in James Publications Limited, publishing company operating in Burnside Industrial Park in Dartmouth, Nova Scotia. In the sixteen (16) months prior to the scheduled closing date of June 29, 1990 there had been three (3) postal strikes. My company is very dependent on regular postal service and had been almost bankrupted by the strikes. It became necessary to lay off staff and restructure my company. The principals in the company had to divest themselves of the controlling interest. Salaries that had been paid to the principals were slashed. was required, to sell Balsam Place in order to obtain my share of the equity so could repay certain company loans and obligations that had incurred. This was made known to the Defendants by our solicitor by letter dated June 29, 1990, delivered to the Defendants' solicitor. Attached hereto and marked Exhibit "M" to this my Affidavit is true copy of that correspondence; 28. THAT as stated above, the Defendants' failure to close caused my wife significant stress and depression. This in turn had an adverse effect on me. My wife was so distraught on the afternoon preceding the closing date that had to attend her work to collect her and physically support her on the way out to the car. We did not know what we were going to do in the days following the Osmonds' failure to close. Things became much worse when our solicitor advised my wife that she was being sued by the owners of the condominium property. Although it was only my wife's name that appeared on this lawsuit, felt that was as much part of it as she was. Accordingly, in order to prevent the Judgment being taken against her, agreed to assume full title to the Balsam Place property and incur the full responsibility for higher mortgage in order to allow her to have sufficient equity to complete the purchase of the condominium. In effect, what this meant for me was that incurred further debt of approximately Twenty Thousand Dollars ($20,000.00) in order to allow my wife to purchase the condominium so as to avoid Judgment against her; 29. THAT in addition, had had an airplane flight scheduled within days of the proposed closing to attend my younger brother's wedding in Scotland. was unable to keep this flight due to the events surrounding the Defendants' failure to close. felt that had to remain home in the days following June 29, 1990, first to look after my wife, and second to see to the re‑listing of the property and to make efforts to complete the condominium purchase. The airline ticket was expensive and was not refundable on such short notice. This however was of minor concern to me compared to the disappointment for me and my family due to my inability to attend my brother's wedding. He is thy only brother and is the youngest member of our large family. He was the last to marry and therefore, there will be no future events such as wedding where the complete family gathers in one spot from all over the world. This was great source of disappointment for me. have been given framed portrait of the extended family from that wedding and am the only one missing from the picture; 30. THAT in addition, my absence caused me depression with respect to my mother. Since the scheduled closing date my mother has been diagnosed with Altzheimer's Disease. She has also suffered stroke since last summer. She is now incapable of speaking coherently on the telephone and now feel that have lost the opportunity to see my mother in state of mind where she was still functioning normally; 31. THAT in addition, we were caused further stress by the Defendants due to their apparent lack of regard for our circumstances. On August 2, 1990 our solicitor wrote the Defendants' solicitor to advise that we had received an offer to purchase the Balsam Place property and that there were series of counter offers but that final purchase price had been arrived at. Our solicitor received no reply from this correspondence. On September 4, 1990 our solicitor again wrote the Defendants' solicitor requesting reply to his letter of August 2nd and requesting possible discovery dates with respect to this matter. Again there was no reply from the defendants' solicitor. On September 20, 1990 our solicitor again wrote the Defendants' solicitor requesting replies to his correspondence and confirming telephone conversations that she had with the Defendants solicitor with interrogatories. He also confirmed the sale of the Balsam Place property. At that time he advised the Defendants' solicitor that we suspected that Mr. Osmond was going to be posted outside of the Province of Nova Scotia, and he requested confirmation. The reply to this letter from the Defendants' solicitor was letter dated September 25, 1990 simply advising that Mr. Rogers no longer represented the Defendants, and that Notice of Change of Solicitor was enclosed. This Notice stated that the Osmonds were going to represent themselves in the future and that their new address was in Borden, Ontario; 32. THAT subsequent to receiving this notice, our solicitor was advised by telephone by Mr. Rogers that the Defendants left the Province of Nova Scotia on or about August 31, 1990; 33. THAT we feel that the Defendants have been totally irresponsible with regard to this matter. They were the ones who removed the condition to our agreement of purchase and sale as early as April 18, 1990. We feel that if they did not have their financing confirmed, they ought not to have waived this condition so as to lead us to believe that the agreement was firm. This upsets us even more. considering that shortly after they waived the condition, we received another offer on Balsam Place for Two Thousand Dollars ($2,000.00) higher than the Osmonds' offer. We were unable to accept this subsequent offer because we already had an agreement with the Osmonds. Furthermore, it very much upsets us that the Osmonds waited until the afternoon prior to closing to advise us that they did not have their financing. We feel that they should have advised us much earlier so that we could have prepared for any possible contingencies. We feel that much of the stress and mental anguish caused to us subsequent to the scheduled closing date could have been avoided had we known earlier about their dishonesty with respect to financing. Finally, we feel that the failure on the part of their solicitor to respond to our solicitor's correspondence and telephone calls, and the fact that the Osmonds left the Province without advising us demonstrated that they never really had any intention of defending this matter or of honouring their commitment to us;" (affidavit deposed to May 24, 1991) The plaintiffs claim that other real estate transactions were dependent on their being able to close this purchase with Mr. and Mrs. Osmond. They were also pointedly told of the repercussions and considerable mental anguish already caused Mr. and Mrs. Gourlay in letter written to their solicitor by the Gourlay's lawyer dated June 29, 1990. What then of the plaintiffs' claim for mental distress? The law has changed and continues to evolve. At common law damages for breach of contract were traditionally limited to those related to compensation. The absolute rule was set out in Addis v. Gramophone Co. Ltd., [1909] A.C. 488 (H.L.) and Peso Silver Mines Ltd. (N.P.L.) v. Cropper (1966), 1966 CanLII 75 (SCC), 58 D.L.R. (2d) 1, [1966] S.C.R. 673 to the effect that damages for mental distress were not available in breach of contract cases because contractual damages must be tangible, estimable and compensatory. New ground was broken in Jarvis v. Swans Tours Ltd., [1973] Q.B. 233, [1973] All. E.R. 71 when Lord Denning awarded compensatory damages for "the disappointment, the distress, the upset and frustration" occasioned by ruined holiday. He dismissed the argument that because such damages were difficult to quantify they ought be declined. He recalled the principle that difficulty of assessment is no deterrent to legitimate claim. Lord Denning found that such damages were proper in breach of contract cases provided they conformed to the standard test for remoteness and foreseeability. As long as it could be said that the parties should reasonably have foreseen mental distress as consequence of their breach at the time the contract was entered into, damages for such mental suffering will be awarded. See also Cox v. Philips Industries Ltd., [1976] All. E.R. 161 (Q.B.) and Heywood v. Wellers (a firm), [1976] All. E.R. 300 (C.A.). All of these cases consider the proposition that when the parties entered their contract they considered that breach in certain circumstances would cause the plaintiff mental distress. That approach was taken by Linden, J. in Brown v. Walterloo Regional Board of Commissioners of Police (1982) 1982 CanLII 1939 (ON SC), 136 D.L.R. (3d) 49. An action was started by Brown, former chief of police claiming damages for wrongful dismissal. Linden, J. found for the plalintiff and included as damages further award of $10,000.00 for mental suffering. The Board of Police Commissioners appealed, successfully. For the purposes of this decision need only refer to certain portions of the judgment of Weatherston, J.A. writing for the Court of Appeal, and subsequent references to that decision by the Supreme Court of Canada and other courts as it relates to claim for mental distress. While allowing the appeal and striking the award for mental suffering, Weatherston, J.A. left open the door for such claim in other circumstances. In so doing, he referred to 1963 textbook on contracts (Corbin on Contracts, Volume (1963)(2d)) which in‑turn contained reference to the American Restatement. "The cases that have referred to show that there may be circumstnces where breach of contract will give rise to claim for damages for mental distress. In my opinion, the correct rule is stated in Corbin, supra, vol. 5, p. 429, citing the Restatement of the Law of Contracts, para. 341, as follows: 'There is sufficient authority to justify the statement that damages will be awarded for mental suffering caused by the wanton or reckless breach of contract to render performance of such character that the promisor had reason to know when the contract was made that breach would cause such suffering, for reasons other than pecuniary loss."( per Weatherston, J.A. at, D.L.R., pp. 735‑6) With respect, do not consider Weatherston, J.A.'s reference to Corbin, supra as imparting to the law in Canada requirement that in order for plaintiff to succeed in claim for compensatory damages for mental suffering, he must first establish that the defendant's conduct amounting to breach was "wanton or reckless". Both the trial decision and the judgment of the Court of Appeal in Brown, supra were referred to by the Supreme Court of Canada in Vorvis v. Insurance Incorporation of British Columbia (1989), 1989 CanLII 93 (SCC), 58 D.L.R. (4th) 193. The report indicates that Estey and LeDain, JJ. took no part in the judgment. In 3:2 decision McIntyre, J. (Beetz and Lamer, JJ. concurring) considered, inter alia, the appellant solicitor's claim for mental distress as result of the termination of his contract of employment. The trial judge awarded neither aggravated nor punitive damages. McIntyre, J. concisely stated the clear distinction between punitive and aggravated damages. ". Punitive damages, as the name would indicate, are designed to punish. In this, they constitute an exception to the general common law rule that damages are designed to compensate the injured, not to punish the wrongdoer. Aggravated damages will frequently cover conduct which could also be the subject to punitive damages, but the role of aggravated damages remains compensatory. Aggravated damages are awarded to compensate for aggravated damage Aggravated damages are compensatory in nature and may only be awarded for that purpose. Punitive damages, on the other hand, are punitive in nature and may only be employed in circumstnaces where the conduct giving the cause for complaint is of such nature that it merits punishment." (pp. 201‑2) Having clarified the distinction McIntyre, J. traced the law's evolution since Addis, supra and then referred to Brown, supra: This line of authority was followed by Linden, J. in Brown v. Waterloo Reginal Board of Com'rs of Police (1982), 1982 CanLII 1939 (ON SC), 136 D.L.R. (3d) 49,37 O.R. (2d) 277, 17 B.L.R. 299 (Ont. H.C.). In the Court of Appeal in that case, per Weatherston, J.A. writing for the court, 1983 CanLII 1697 (ON CA), 150 D.L.R. (3d) 729, 43 O.R. (2d) 113, 23 B.L.R. 41, the award of damages for mental distress was disallowed, but it may be said that the power of the court to award damages upon that basis in an appropriate case was implicitly accepted. find it very significant that there was no attempt by the majority to mention or adopt the "wanton or reckless breach of contract" language borrowed from the American Restatement. McIntyre, J. went on to state the ratio decidendi of the judgment: ". From the foregoing authorities, would conclude that while aggravated damages may be awarded in actions for breach of contract in appropriate cases, this is not case where they should be given. would not wish to be taken as saying that aggravated damages could never be awarded in case of wrongful dismissal, particularly where the acts complained of were also independently actionable, factor not present here. Furthermore, while the conduct complained of, that of Reid, was offensive and unjustified, any injury it may have caused the appellant cannot be said to have arisen out of the dismissal itself. The conduct complained of preceded the wrongful dismissal and therefore cannot be said to have aggravated the damage incurred as result of the dismissal. Accordingly, would refuse any claim for aggravated damages in respect of the wrongful dismissal."(emphasis mine) As punitive damages do not arise in the case before me, need not consider the Court's analysis of punitive damages in Vorvis, supra. In dissenting judgment Wilson, J. (L'Heureux‑Dube, J. concurring) disagreed with the majority's treatment of the appellant's claim for punitive damages as well as its approach to the law on mental suffering. Again, need not consider the minority's views on punitive damages. While Wilson, J. refers to the judgment of Weatherston, J.A. in Brown, supra (which in turn contained the extract from the American Restatement cited in Corbin) the Court does not adopt or even obliquely suggest its concurrence in the "wanton or reckless breach of contract" test. Wilson, J.'s preferred approach was to simply apply the twofold test of causation and foreseeability. "I agree with my colleague, McIntyre J., that in appropriate circumstances aggravated damages for mental suffering may be awarded in breach of contract cases and that they are, in distinction to punitive damages, essentially compensatory. However, take somewhat different approach from my colleague as to the test to be applied in determining whether or not to award them. The trial judge in this case applied the absolute rule The absolute rule has been whittled away by the numerous English and Canadian authorities referred to by my colleague in which damages have been awarded for mental suffering in variety of different contractual situations. It is my view, however, that what binds all these cases together, their common denominator so to speak, is the notion that the parties should reasonably have foreseen mental suffering as consequence of breach of the contract at the time the contract was entered into. (p. 212) and further: "I think the proper approach is to apply the basic principles of contract law relating to remoteness of damage. These were articulated by Baron Alderson of the Court of Exchequer Chamber in Hadley v. Baxendale (1854), Ex. 341 at pp. 354‑5, 156 E.R. 145 at p. 151, as follows: 'Now we think the proper rule in such case as the present is this: Where two parties have made contract which one of them has broken, the damages which the other party ought to receive in respect of such breach of contract should be such as may fairly and reasonably be considered either arising naturally, i.e., according to the usual course of things, from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties, at the time they made the contract, as the probable result of the breach of it. Now, if the special circumstances under which the contract was actually made were communicated by the plaintiffs to the defendants, and thus known to both parties, the damages resulting from the breach of such contract, which they would reasonably contemplate, contract under these special circumstances so known and communicated. But, on the other hand, if these special circumstances were wholly unknown to the party breaking the contract, he at the most, could only supposed to have had in his contemplation the amount of injury which would arise generally, and in the great multitude of cases not affected by any special circumstances, from such breach of contract. For, had the special circumstances been known, the parties might have specially provided for the breach of contract by special terms as to the damages in that case; and of this advantage it would be very unjust to deprive them.'" Madame Justice Wilson declined to follow the majority's approach saying that it was restrictive in that it would only permit damages for mental suffering if it would constitute separate "actionable wrong". "I must respectfully disagree with my colleague's view that conduct advanced in support of claim for damages for mental suffering must constitute separate 'actionable wrong' from the breach itself."(per Wilson, J. at p. 215) With the greatest of respect do not think that's precisely what the majority held. "I would not wish to be taken as saying that aggravated damages could never be awarded in case of wrongful dismissal, particularly where the acts complained of were also independently actionable, factor not present here."(McIntyre, J. at p. 205. emphasis mine) believe that Mr. Justice McIntyre, in his use of the word "particularly" simply chose to comment upon those circumstances in some other cases where the acts complained of were, in themselves, actionable. He did not say that all claims for aggravated damages (whether to compensate for mental suffering or some other calamity) would be barred unless the impugned conduct were separately litigible. thus conclude there is no rule in Canada that in order for plaintiff to succeed in claim for damages to compensate for mental suffering following breach of contract, the plaintiff must first prove wanton or reckless breach on the part of the defendant(s). Rather, applying Vorvis, supra find this is an appropriate case to award damages to Mrs. Gourlay for the mental distress she suffered following the Osmonds' breach of contract. Her "acute emotional breakdown" was directly linked to the defendants' actions and arose out of the breach of contract itself. find it was within the reasonable contemplation of these parties when they executed their contract of purchase and sale that its breach would cause such distress. Her personal suffering may fairly be said to have arisen naturally from the defendants' breach and as well may reasonably be supposed to have been in the contemplation of both the Gourlays and the Osmonds when they signed their contract. Having agreed to buy the property, the Osmonds knew the Gourlays would be moving out and faced with the expense and significant disruption any relocation entails. And they knew more. There were special circumstances here. They were told on May 4, 1990 (7 weeks prior to closing) that the vendors were moving into another residence on the day of closing. They also knew that the plaintiffs had received another, better offer. By agreeing to waive the conditional sale clause the defendants not only signalled their intention to complete but also denied financial advantage to the vendors. The defendants failed to advise the plaintiffs of their inability to obtain financing until the eve of the closing. While the Agreement of Purchase and Sale was subject to financing, the financing was deemed to be arranged within 12 banking days of April 6, 1990. It was not until June 28, 1990 that the defendants informed the plaintiffs their financing had not been arranged. The defendants allowed the plaintiffs to rely on the expiration of the financing deadline and the removal of the condition respecting sale of the defendants' property. The plaintiffs' expectation that the deal would close was entirely reasonable and their sense of security and concomitant plan to buy condominium were fostered by the defendants' actions and expressed committments. There are obvious adverse consequences to any party who learns at the last minute that an anticipated sale will not take place. This is especially so when for period of months prior to sale, vendor has been given every indication that the purchaser intends to complete. It is interesting that in Addis, supra Lord Atkinson mentioned the three exceptions to the general common law rule that compensation for injured feelings could not be awarded in an action for breach of contract actions for breach of promise of marriage, actions taken against banker for refusing to pay customer's cheque when the bank has the customer's funds to meet it, and actions when the vendor of real estate, without fault, fails to pass title. The rationale for such exceptions were that such damages were clearly within the reasonable contemplation of the parties. One wonders why any greater relief was extended to disappointed purchaser than to as here, distressed and damaged vendor? have referred to the decisions of Nathanson, J. in Smith and Smith v. Fearon (1989), 87 N.S.R. (2d) 119 and Glube, C.J.T.D. in Blouin v. Maritime Life Assurance Company (1989), 88 N.S.R. (2d) 23 where general damages for mental suffering were refused apparently on the basis that the defendants' conduct did not amount to wanton or reckless action as referred to in Brown, supra. However, these two judgments were rendered in November and December, 1988 respectively without the benefit of the Supreme Court of Canada's reasons for judgement in Vorvis, supra delivered in May, 1989. In the so‑called "holiday cases" our courts have awarded general damages for inconvenience, distress and disappointment. See Elder et al v. Koppe (1975), 1974 CanLII 1301 (NS SC), 53 D.L.R. (3d) 705; Cameron and Cameron v. Maritime Travel (Halifax) Ltd., Skylark Holidays Ltd. and Flinn (1983), 58 N.S.R. (2d) 379. As well, in legion of employment cases, plaintiffs' claims for mental distress as result of wrongful dismissal have been allowed. McNair and Guy v. J.D. Bremner Son Limited (1983), 58 N.S.R. (2d) 222; McOine v. River Pub Ltd. and Rofhie (1987), 79 N.S.R. (2d) 379. There is no good reason in policy or logic that any greater burden be imposed upon disgruntled vendor who suffers damage as consequence of breach of contract to buy real property than upon former employee who claims aggravated damages following wrongful dismissal or an unhappy vacationer who sues to be compensated for his frustration when travel agent's breach ruins his holiday. The evidence establishing Mrs. Gourlay's mental suffering, considerable medical treatment and therapy is well documented and convincing. It is to be contrasted with the paucity of information before Morrison, J.A. when in writing for the Appeal Division in McBeth v. Governors of Dalhousie College and University (1986), 1986 CanLII 4007 (NS CA), 26 D.L.R. (4th) 321 he stated at p. 327: am unable to conclude that the trial judge committed any palpable error in his charge to the jury. My conclusion in this matter is buttressed by the fact that there is very little evidence to show that the appellant suffered any mental anxiety or that she required any treatment for such anxiety and in the absence of such evidence it would be very difficult in any event to determine damages." In Widdrington et al v. Dickinson et al (1982), 1982 CanLII 3106 (ON SC), 133 D.L.R. (3d) 472 (Ont. H.C.) the Plaintiff Vendors claimed general damages for their distress caused by the Defendant Purchasers' failure to close residential home transaction. Proceeds of sale were required by the Vendors to complete second transaction. Galligan, J. found at p. 47 that the Plaintiffs had suffered significant mental stress. He went on to state that: "I find that these Plaintiffs did suffer in that fashion and that it ought to have been and probably indeed was, within the contemplation of the Defendants that they would do so if the Defendants failed to close." Accordingly, general damages were awarded to the Plaintiffs. In Wilson et al v. Sooter Studios Ltd. (1988), 1988 CanLII 3100 (BC CA), 55 D.L.R. (4th) 303 (B.C.C.A.) the court rationalized damage awards for mental distress as "losses of non‑pecuniary benefit" which formed part of the plaintiffs' expectation and for which there should be compensation. The court affirmed the trial judge's award of $1,000.00 in addition to reimbursement of the sum previously paid by the plaintiffs. If am found to be wrong in the approach have taken and it be determined that wanton or reckless breach by defendant is prerequisite to sustain plaintiff's claim, then find that the Osmonds' conduct in this case amounts to wanton and reckless breach. Black's Law Dictionary (5th Edition) defines "wanton and reckless misconduct" as follows: "Occurs when person, with no intent to cause harm, intentionally performs an act so unreasonable and dangerous that he knows, or should know, that it is highly probable that harm will result." For the reasons already outlined, the defendants perpetuated in the minds of the plaintiffs firm commitment to buy their home. By only instructing their lawyer to disclose financing trouble on the eve of the closing they recklessly disregarded the obvious consequences and harm which would be suffered by Mr. and Mrs. Gourlay. The defendants knew or reasonably ought to have known that Mrs. Gourlay's mental suffering was a foreseeable consequence. This blatant breach and cavalier conduct was maintained by the Osmonds when they left the jurisdiction, thereby putting these plaintiffs to the considerable expense of Interrogatories, Notice to Admit and finally separate applications for summary judgment and an assessment of damages. The aborted real estate transaction affected Mr. and Mrs. Gourlay differently. Both were owners and mortgagors of the property and so each was party to the contract. While sympathize with Mr. Gourlay's frustration, particularly the anger and dismay he must have felt in having to cancel his attendance at younger brother's wedding in Scotland together with the missed opportunity to see relatives and his ailing mother, consider it beyond the realm of reasonable foreseeability to extend his claim to that extent. However, it was reasonable expectation that he would be. irritated and put to considerable bother (in terms of both time and added expense) by virtue of the defendants' breach. As in Swans Tours Limited, supra these damages are compensable and not too remote. I therefore award Mr. Gourlay $1,000.00 aggravated damages. need not repeat the suffering experienced by Mrs. Gourlay nor the extended treatment throughout the summer which her condition required. In McOnie, supra, Grant, J. awarded general damages of $6,500.00 for the plaintiff's mental distress in wrongful dismissal action. His symptoms were insomnia, withdrawal, paranoia, loss of energy, loss of confidence and loss of self‑esteem according to the psychiatrist who treated him. The plaintiff was placed on medication to return him to his normal mood level. Grant, J. was satisfied the injury suffered by the plaintiff was real and significant and had "substantially reduced the quality of his enjoyment of life". Similarly find that Mrs. Gourlay's health and enjoyment of life were significantly impaired by the defendants' breach. I award her aggravated damages for mental distress in the amount of $5,000.00, and I note this to be the same sum awarded by Galligan, J. in Widdrington, supra for the vexation, frustration, distress and anxiety caused the vendors as a result of the purchasers' failure to complete their Agreement of Purchase and Sale. In conclusion assess total damages and order judgment for the plaintiffs in the amount of $12,658.61. J. Halifax, Nova Scotia June 28 1991 1990 S.H. No. 73433 IN THE SUPREME COURT OF NOVA SCOTIA TRIAL DIVISION BETWEEN: JAMES CLUNIE GOURLAY and EILEEN ELLEN GOURLAY and GERRY L. OSMOND and CATHY OSMOND Defendants DECISION OF SAUNDERS, J.

The plaintiff vendors claimed damages for mental distress following an aborted real estate transaction. The breach of contract by the defendant purchasers had a domino effect as the plaintiffs had intended to buy a condominium and were sued by their intended vendor, who in turn was a party to a contingent real estate transaction. When the transaction fell apart, the female plaintiff broke down and needed medical treatment. For the plaintiffs and awarding aggravated damages in the amount of $1,000 to the male plaintiff for frustration/hardship and $5,000 to the female plaintiff for mental distress/follow up treatment. The court distinguished between punitive and aggravated damages and noted that the defendants' breach of contract did not have to be 'wanton or reckless' for the plaintiffs' claim in mental distress to succeed. These damages arose naturally from the breach and were foreseeable at the time the contract was executed.

c_1991canlii4335.txt

Editor’s Note: Addendum released April 15, 1999. Original judgment has been corrected with text of addendum appended. Dated: 19990415 Docket: 2928 THE COURT OF APPEAL FOR SASKATCHEWAN Coram: Vancise, Wakeling Jackson JJ.A. SASKATCHEWAN HUMAN RIGHTS COMMISSION APPELLANT (Respondent) and CADILLAC FAIRVIEW CORPORATION LIMITED RESPONDENT (Applicant) and DARWIN FEHR NON-PARTY (Respondent) and VALERIE WATSON NON-PARTY (Board of Inquiry) and SHANNON REGIER and BARBARA JOAN WOLLF NON-PARTIES (Complainants) and THE SASKATCHEWAN FEDERATION OF LABOUR COUNSEL: Mr. Milton C. Woodard, Q.C. for the appellant Ms. Catherine A. Sloan for the respondent Mr. Neil R. McLeod for the Intervenor, Sask. Federation of Labour DISPOSITION: On Appeal From: QBG2293/1997, J.C. of Saskatoon Appeal Heard: 18 June 1998 Appeal Allowed: 15 April 1999 Written Reasons: 15 April 1999 Reasons By: The Honourable Mr. Justice Vancise In Concurrence: The Honourable Mr. Justice Wakeling and The Honourable Madam Justice Jackson VANCISE J.A. Introduction [1] Two female employees of Cadillac Fairview Corporation Ltd., unionized employer, filed complaints with the Saskatchewan Human Rights Commission alleging sexual harassment and discrimination in their employment contrary to The Saskatchewan Human Rights Code.[1] The Code prohibits an employer from discriminating against an employee on the basis of sex. Subsequent to the employee’s complaints, Board of Inquiry was appointed under the Code to investigate the alleged discrimination. In response, Cadillac Fairview applied for judicial review in the nature of prohibition contending the provisions of the Code were superseded by the collective agreement and section 25(1) of The Trade Union Act[2] with the result that the Board of Inquiry lacked jurisdiction to hear the complaint. [2] Cadillac Fairview contends the Code has no application to complaint of sexual discrimination arising out of the employee/employer relationship governed by collective bargaining agreement which provides for the resolution of all disputes by final and binding arbitration. It further contends that an arbitrator appointed under the provisions of the collective agreement and s. 25(1) of the Act has exclusive jurisdiction to resolve the complaint. [3] The two complainants, Barbara Joan Wollf and Shannon Regier were employed as night cleaners at Midtown Plaza, shopping mall in Saskatoon owned and operated byCadillac Fairview. At all material times the complainants were members of the Midtown Plaza Employee’s Association, the certified bargaining agent for the employees of Cadillac Fairview. The terms and conditions of their employment were governed by the terms of the collective agreements in force from time to time during their employment. [4] Barbara Joan Wollf was employed from May 15, 1991 to January 5, 1995 and Shannon Regier was employed from January 5, 1993 to January 31, 1996. On September 26, 1994 both Wollf and Regier filed complaints with the Saskatchewan Human Rights Commission alleging that they had been sexually harassed during the course of their employment by their supervisor Darwin Fehr, acting on behalf of Cadillac Fairview. They allege that both Darwin Fehr and Cadillac Fairview discriminated against them on the basis of their sex, contrary to section 16(1) of the Code. At no time did these complainants file grievance under their collective bargaining agreement in relation to the alleged discrimination. They simply followed the procedure set out in the Code. [5] On August 15, 1997, Valerie Watson was appointed as Board of Inquiry by the Minister of Justice pursuant to s. 29(2) of the Code to hear and determine the complaints. Cadillac Fairview applied for prohibition order pursuant to Rules 664 and 663 of the Queen’s Bench Rules of Court alleging that the Board’s jurisdiction was ousted by s. 25(1) of the Act. Essentially, Cadillac Fairview argued that the Board had no jurisdiction to hear and determine the issue of sexual discrimination as it arose under the collective agreement. On this basis an order for prohibition was granted by the Court of Queen’s Bench prohibiting the Board from hearing the complaints. The Human Rights Commission appeals that decision. Relevant Statutes and Provisions of the Collective Agreement [6] The Saskatchewan Human Rights Code: 16(1) No employer shall refuse to employ or continue to employ or otherwise discriminate against any person or class of persons with respect to employment, or any term or condition of employment, because of his or their race, creed, religion, colour, sex, sexual orientation, family status, marital status, disability, age, nationality, ancestry, place of origin or receipt of public assistance. 27(1) Any person who has reasonable grounds for believing that any person has contravened provision of this Act, or any other Act administered by the commission, in respect of person or class of persons, may file with the commission complaint in the form prescribed by the commission. 29(2) board of inquiry shall consist of one or more persons appointed by the minister to hear and decide the complaint. 44 Every law of Saskatchewan is inoperative to the extent that it authorizes or requires the doing of anything prohibited by this Act unless it falls within an exemption provided by this Act or unless it is expressly declared by an Act of the Legislature to operate notwithstanding this Act. [7] The Trade Union Act: 25(1) All differences between the parties to collective bargaining agreement or persons bound by the collective bargaining agreement or on whose behalf the collective bargaining agreement was entered into respecting its meaning, application or alleged violation, including question as to whether matter is arbitrable, are to be settled by arbitration after exhausting any grievance procedure established by the collective bargaining agreement. (1.2) The finding of an arbitrator or an arbitration board is: (a) final and conclusive; (b) binding on the parties with respect to all matters within the legislative jurisdiction of the Government of Saskatchewan; and (c) enforceable in the same manner as an order of the board made pursuant to this Act. [8] The Collective Agreement: 8.1 The parties agree there will be no discrimination against anyone because of race, religion, creed, colour, marital status, sex, nationality, ancestry or place of origin, nor by reasons of non-membership or non-activity in the Association. 8.2 The Company, the M.P.E.A. and the employees concerned agree to comply with the Human Rights Code.[3] [9] The issue in its simplest terms, is whether s. 25 of the Act prevents the complainants from having their allegations of sexual harassment decided under the Code. The question is whether s. 25 of the Act, which requires all differences between the parties to collective agreement to be settled by binding arbitration, takes priority over the Code and ousts the jurisdiction of Board of Inquiry established under the Code to inquire into and determine whether an alleged act of discrimination occurred. Judgment of the Court of Queen’s Bench [10] The chambers judge correctly decided that the issue in this case is confined to a determination of the correct forum in which to bring the complaint of sexual harassment: a board of arbitration appointed pursuant to the terms of the collective agreement or a Board of Inquiry appointed pursuant to the Code. [11] The chambers judge examined the controlling authorities in this jurisdiction and in the Supreme Court of Canada and relied on Weber v. Ontario Hydro[4] to decide the issue of appropriate forum. In Weber, McLachlin J., writing on behalf of the majority, decided that where dispute, “regardless of how it may be characterized legally, arises under the collective agreement, then the jurisdiction to resolve it lies exclusively with the labour tribunal and the courts cannot try it”. On this basis, the chambers judge concluded that where an allegation of sexual discrimination is made in the course of employment and is addressed by collective agreement, the “labour tribunal” appointed under the collective agreement has exclusive jurisdiction to resolve the dispute. [12] The chambers judge found the Act took precedence over the Code on the basis that the Act dealt specifically with the employment relationship of the employees. He reasoned that if the legislature had intended the Code to prevail over the Act it would have simply said so in one of the two statutes. The legislature did not so state and therefore he found that the Act, which dealt specifically with the resolution of disputes between unionized employers and their employees, ousted the jurisdiction of the Board. In his opinion, the Board must defer to the arbitration process set up under the collective agreement. He granted an order prohibiting the Board of Inquiry from hearing and determining the matter. The result of the judgment is that unionized employees are required to initiate all complaints against their employer addressed in the collective bargaining agreement by the grievance procedure and do not have access to the resolution process under the Code. [13] The issue as noted is whether these complainants, who are employed by unionized employer, should have grieved their complaints of sexual harassment under the grievance and arbitration provisions of the collective agreement rather than filing the their complaints under the Code. To answer that question one must resolve a number of sub-questions:a) what are the statutory schemes under the Act and the Code for resolving disputes of this nature?b) what has the Supreme Court of Canada decided about the exclusive jurisdiction of an arbitrator to resolve disputes in the context of labour law?c) what is the essential character of the dispute and the ambit of the collective agreement?d) does either the Code or the Act have the exclusive jurisdiction to decide the dispute?e) if the answer to d) is no, which statute takes priority or is paramount? Preliminary Observations Human Rights [14] Human rights are more than just statutory rights. They are fundamental, quasi-constitutional rights which embody fundamental values and public policy. That position was made clear in the case of Winnipeg School Division No. v. Craton[5] where McIntyre J. stated: Human rights legislation is of special nature and declares public policy regarding matters of general concern. It is not constitutional in nature in the sense that it may not be altered, amended, or repealed by the Legislature. It is, however, of such nature that it may not be altered, amended, or repealed, nor may exceptions be created to its provisions, save by clear legislative pronouncement. To adopt and apply any theory of implied repeal by later statutory enactment to legislation of this kind would be to rob it of its special nature and give scant protection to the rights it proclaims.6 [15] Moreover, human rights are not private rights, but public rights which constitute fundamental public policy. For this reason, parties are not able to contract out of human rights provisions. As McIntyre J. stated in Ontario Human Rights Commission v. The Borough of Etobicoke:7 [I]t is nevertheless public statute and it constitutes public policy in Ontario as appears from reading of the Statute itself and as declared in the preamble. It is clear from the authorities, both in Canada and in England, that parties are not competent to contract themselves out of the provisions of such enactments and that contracts having such effect are void, as contrary to public policy.8 [16] While human rights legislation is not constitutional in nature, it is of such a special nature that it cannot be contracted out of, altered, amended or repealed nor may exceptions be created to its provisions except by clear legislative intent and pronouncement. To do otherwise would permit the denigration of the rights and obviate the protection of the rights the statute seeks to protect. [17] Finally, the mere fact that a collective agreement includes an article or clause which complies with the Code or a provision which covenants not to discriminate on the basis of the grounds set out in the Code, does not in and of itself transform the nature of the dispute from a human rights violation to a breach of the collective agreement. Statutory Schemes 1. The Trade Union Act [18] The Act regulates the employment relationship between employers and unionized employees. It certifies union as the exclusive bargaining agent for all unionized employees (with few exceptions) with the result that there are no individual contracts of employment. (See McGavin Toastmaster Ltd. v. Ainscough9). Section 25 of the Act provides that all differences between the parties to collective agreement are to be resolved by binding arbitration. Throughout that process the union determines whether to file grievance and ultimately whether the matter will be submitted to arbitration in accordance with the provisions of the agreement and the Act. The decision is final and binding on the parties. All decisions leading up to arbitration are made by the union and the employee has no say in the final decision, subject, of course, to the obligation of the union to fairly represent the interests of the employee. [19] In this case Article 8.1 of the collective agreement provides that the employer will not discriminate against anyone because of, among other things, sex. Section 25 of the Act dictates that all disputes between parties to collective agreement concerning employment rights covered in the agreement must be resolved through the grievance procedure. Resolution through arbitration is made mandatory after the grievance procedure is exhausted. Essentially, the dispute is private in nature as it involves only the employee, the union, and the employer. 2. The Human Rights Code [20] The Code applies to all employees and employers, whether unionized or not. Section 27(1) provides that anyone can initiate complaint under the Code if they have reasonable grounds to believe the provisions of the Code have been violated. The complaint triggers detailed investigation which involves two step process. First, there is an investigation of the complaint pursuant to the procedure set out in the Act. Second, the Code provides for the adjudication of the complaint by board of inquiry established under the provisions of the Code. Complaints under the Code affect not only private and economic rights but human rights which are of unique nature. They are fundamental, quasi-constitutional rights which embody public policy and reflect the broader public interest. [21] Thus, there are two statutes each of which mandates forum for the resolution of complaints, one with jurisdiction to resolve disputes arising out of the collective bargaining agreement and the other with jurisdiction to decide human rights complaints. It would appear that either forum could have jurisdiction to determine the discrimination complaints in this case. In order to determine the correct forum, it is necessary to look at the decisions of the Supreme Court of Canada concerning the issue of the exclusive jurisdiction of an arbitrator to resolve disputes arising out of an employment relationship. Jurisprudential Background [22] To date, all the case law which has considered the effect of statutory provisions like s. 25, has dealt with circumstances where party to collective agreement has tried to assert concurrent common law right. See: St. Anne Nackawic Pulp Paper Co. Ltd. v. Canadian Paper Workers Union, Local 219;10 Weber v. Ontario Hydro;11 New Brunswick v. O’Leary;12 Dwyer v. Canada Post Corp.;13 Pilen v. International Minerals and Chemicals Corporation;14 Apperley v. Delta Catalytic Industrial Services Ltd.;15 Ram v. Prasad;16 Venneri v. Bascom.17 None of the above cases have considered circumstances where there is parallel competing statutory right of public interest nature which arises out of the employment relationship. [23] In St. Anne Nackawic18 the Supreme Court of Canada decided that mandatory arbitration clauses in labour statutes such as s. 25 of the Act take away the court’s concurrent jurisdiction to hear common law actions arising out of the employment relationships under the collective bargaining agreement, subject to the court’s retaining residual power to grant injunctive relief. [24] Underlying this decision is the principle that disputes must be characterized on the basis of their facts and not in terms of how they might be framed legally. If the dispute in its essential character arises out of the interpretation, application violation or meaning of the collective bargaining agreement, it will fall to be determined by an arbitrator appointed pursuant to the collective bargaining agreement. [25] This position was reinforced by Weber v. Ontario Hydro19 and New Brunswick v. O’Leary.20 The policy driving such decisions is that the dispute resolution process, established by the various labour statutes, should not be duplicated or undermined by concurrent common law actions in the courts. This also conforms to the theory of deference that courts accord decisions of specialized tribunals. For complete discussion of the issue see Parr and Prince Albert District Health Board v. Saskatchewan Federation of Labour released concurrently with this judgment. Essential Nature of the Dispute [26] The issue in this case is whether an alleged violation of the Code can, in its essential character, be considered difference or dispute under s. 25 of the Act. In other words, can the allegation of violation of protected right under the Code be characterized in its essential nature as difference which arises out of the collective agreement? In the chambers judge’s opinion there was dispute between the parties to the collective agreement respecting the interpretation, application or violation of the agreement with the result that the arbitrator had exclusive jurisdiction. He appears to have accepted that sexual harassment is sex discrimination and that employees covered by the collective agreement are protected against sex discrimination by virtue of Article 8.1 of the agreement. In his opinion, the dispute was therefore one arising out of the collective agreement and it was of no importance that sexual harassment could also be characterized as violation of s. 16(1) of the Code that was merely the legal characterization. do not agree. [27] Weber, in my opinion, did not go so far as to state that any rights created by statute that affect employment rights must of necessity arise out of the collective agreement and can only be dealt with by arbitration. Indeed Gendron v. Supply and Services Union, P.S.C.A.21 makes it clear there are exceptions as to when exclusive jurisdiction arises under the Canada Labour Code when dealing with an issue arising out of breach of an obligation under the Canadian Human Rights Code where there is also common law duty. In deciding that common law jurisdiction was ousted the Court stated: different conclusion may also be warranted where it is not clear that the statute exclusively covers the breach. In other instances, such as in the context of human rights violations, while the statute might apply, the breach may not be properly characterized exclusively as labour relations matter. In these circumstances jurisdiction may be grounded elsewhere.22 [28] The right which was allegedly violated in this case is fundamental human right which employees and the union need not bargain and cannot contract out of. (See: Ontario Human Rights Commission v. The Borough of Etobicoke).23 It is fundamental right which forms part of every employee’s contract of employment and is enforceable under the Code. It is right which would not have existed in the absence of the Code. [29] The Supreme Court of Canada has stated that when human rights legislation comes into conflict with other, more specific legislation, the provisions of the Code prevail. Next to constitutional law, human rights provisions are more important than all other laws. They have been defined as quasi constitutional rights and statutes. They are not treated as laws of general application but rather as fundamental laws. Unless the legislature has expressly provided otherwise, the Code takes precedence over all other laws when there is conflict. In the case of Insurance Corporation of British Columbia v. Heerspink et al.,24 Lamer J. said this: When the subject matter of law is said to be the comprehensive statement of the “human rights” of the people living in that jurisdiction, then there is no doubt in my mind that the people of that jurisdiction have through their legislature clearly indicated that they consider that law, and the values it endeavours to buttress and protect, are, save their constitutional laws, more important than all others. Therefore, short of that legislature speaking to the contrary in express and unequivocal language in the Code or in some other enactment, it is intended that the Code supersede all other laws when conflict arises. As result, the legal proposition generalia specialibus non derogant cannot be applied to such code. Indeed the Human Rights Code, when in conflict with “particular and specific legislation”, is not to be treated as another ordinary law of general application. It should be recognized for what it is, fundamental law.25 Section 44 of the Code expressly provides that where there is statutory conflict, the Code takes precedence unless expressly excluded. If one applies the modern approach to statutory legislation as defined by Driedger26 there is clear intention on the part of the legislature that the Code is to take priority over other statutory rights. [30] In my opinion, the fact the parties have included covenant to comply with the Code in the collective agreement cannot change the essential character of the dispute. Fundamentally, the essential nature of this complaint is human rights violation and not dispute arising out of the collective agreement dealing with the interpretation, application or violation of the collective agreement as contemplated by s. 25. The Ambit of the Collective Agreement [31] One must not lose sight of the fact that the terms of the collective agreement itself can play an important role in the determination of whether the jurisdiction of the court has been ousted in favour of an arbitrator. The fact that parties have included an anti-discrimination clause in the collective agreement does not alter the fundamental nature of the dispute or have the effect of extending the scope of the arbitrator’s jurisdiction. It may play role in determining whether the statutory tribunal would decide to hear the complaint, but it cannot affect the determination of the essential nature of the dispute or the question of jurisdiction. The essential issue is whether this complaint is dispute between the parties with respect to the meaning, application or alleged violation of the collective agreement. To find that it is, with the result that the dispute must be arbitrated, would permit the parties to contract out of the Code, something they cannot do. [32] Another indicia that the dispute is not dispute involving the interpretation, application or violation of the collective agreement between the parties is that the Commission is party to any proceedings before the Board and indeed has the carriage of those proceedings. It has long been established that human rights codes foreclose any cause of action at common law for violation of the fundamental principles which are guaranteed by the Code and that the only method of enforcement of the substantive rights based upon breach of the provisions of the Code is the complaint procedure section in the Code itself. Any action in the courts based on public policy was also foreclosed. See: Seneca College v. Bhadauria27 and Kodellas et al. v. Human Rights Commission et al.28 If the method of enforcement forecloses an action at common law, the same principles would apply in my opinion to labour arbitrator. This Court considered the limited role of an arbitration board in adjudicating human rights violations in Yorkton Union Hospital v. Saskatchewan Union of Nurses et al.29 Bayda C.J.S. said this: The board of arbitration is not board of inquiry under the Code. Its function therefore is not to apply the provisions of the Code in the sense of implementing them to give some person whose rights under the Code may be or have been violated the relief she could have got had she taken the prescribed steps under the Code. The board of arbitration exists, rather, to resolve grievance. Its function is to interpret the collective agreement and in the course of so doing to interpret any document bearing upon the interpretation of the agreement and as well to interpret any law, whether contained in the common law or statute, bearing upon the interpretation of the collective agreement. The use then to which board of arbitration is permitted to make of the Code is limited to the use it can make of it in interpreting the collective agreement or interpreting document which bears upon the interpretation of the collective agreement.30 [33] In my opinion the ambit of the collective agreement does not affect the finding that the essential nature of the dispute is a human rights violation and not one which only involves a dispute by the parties concerning the application, violation or interpretation of the collective agreement. This is particularly evident when one takes into account the public interest component of the complaint as well and the wide powers granted under the Code to redress violation of the rights guaranteed under the Code, and further to award damages or otherwise resolve the question of compensation for the violation of the guaranteed right. [34] In conclusion the essential nature of the dispute in this case is complaint under the Code alleging violation of protected right not to be discriminated against on the basis of sex. It is not in its essential character complaint arising out of the employment relationship under the collective agreement. While it is true that the employees’ employment rights were inferentially affected because the alleged act of discrimination was addressed by the collective agreement, the mere fact that an alleged violation of the Code occurred in place of employment rather than in some other setting is not determinative. Disposition [35] The result in this case is clear. The Board of Inquiry appointed under the provisions of the Code has jurisdiction to hear and determine this matter. It has decided to conduct an inquiry. In the result the order of the Court of Queen’s Bench is set aside and the matter remitted to the Board of inquiry established under the Act in accordance with the provisions under the Act. [36] The appellant, the Saskatchewan Human Rights Commission, is entitled to its costs in the usual way on double Column in this Court and on the appropriate tariff in the court below. [37] The intervenor made no request with respect to costs and none are therefore ordered. DATED at the City of Regina, in the Province of Saskatchewan, this 15th day of April, A.D. 1999. VANCISE J.A. concur WAKELING J.A. concur JACKSON J.A. Dated: 19990415 Docket: 2928 THE COURT OF APPEAL FOR SASKATCHEWAN Coram: Vancise, Wakeling Jackson JJ.A. SASKATCHEWAN HUMAN RIGHTS COMMISSION APPELLANT (Respondent) and CADILLAC FAIRVIEW CORPORATION LIMITED RESPONDENT (Applicant) and DARWIN FEHR NON-PARTY (Respondent) and VALERIE WATSON NON-PARTY (Board of Inquiry) and SHANNON REGIER and BARBARA JOAN WOLLF NON-PARTIES (Complainants) and THE SASKATCHEWAN FEDERATION OF LABOUR COUNSEL: Mr. Milton C. Woodard, Q.C. for the appellant Ms. Catherine A. Sloan for the respondent Mr. Neil R. McLeod for the Intervenor, Sask. Federation of Labour DISPOSITION: On Appeal From: QBG2293/1997, J.C. of Saskatoon Appeal Heard: 18 June 1998 Appeal Allowed: 15 April 1999 Written Reasons: 15 April 1999 Reasons By: The Honourable Mr. Justice Vancise In Concurrence: The Honourable Mr. Justice Wakeling and The Honourable Madam Justice Jackson VANCISE J.A. Addendum Reasons for judgment in the above were delivered on April 15, 1999. Please substitute the following paragraphs 25 and 31 for the ones contained in the judgment. should read as follows: [25] This position was reinforced by Weber v. Ontario Hydro[6] and New Brunswick v. O’Leary.[7] The policy driving such decisions is that the dispute resolution process, established by the various labour statutes, should not be duplicated or undermined by concurrent common law actions in the courts. This also conforms to the theory of deference that courts accord decisions of specialized tribunals. For complete discussion of the issue see Parr and Prince Albert District Health Board v. Saskatchewan Federation of Labour released concurrently with this judgment. The Ambit of the Collective Agreement [31] One must not lose sight of the fact that the terms of the collective agreement itself can play an important role in the determination of whether the jurisdiction of the court has been ousted in favour of an arbitrator. The fact that parties have included an anti-discrimination clause in the collective agreement does not alter the fundamental nature of the dispute or have the effect of extending the scope of the arbitrator’s jurisdiction. It may play role in determining whether the statutory tribunal would decide to hear the complaint) but it cannot affect the determination of the essential nature of the dispute or the question of jurisdiction. The essential issue is whether this complaint is a dispute between the parties with respect to the meaning, application or alleged violation of the collective agreement. To find that it is, with the result that the dispute must be arbitrated, would permit the parties to contract out of the Code, something they cannot do. Please substitute the above paragraphs for the ones sent to you previously. [1]SS. 1979, c.S-24.1 (hereinafter the Code). [2]R.S.S. 1978, c.T-17 (hereinafter the Act. will also refer to the Act from time to time to identify or describe grievance and arbitration proceedings mandated by s. 25 of the Act). [3]This article was not in the collective agreement at the time the complaints were filed with the Commission. Articles and 10 set out the grievance procedure and grievance is described in the agreement as “an alleged violation” in respect of the interpretation or application of, or compliance with specific provision of the agreement. [4]1995 CanLII 108 (SCC), [1995] S.C.R. 929; (1995), 125 D.L.R. (4th) 583 S.C.C.). [5]1985 CanLII 48 (SCC), [1985] S.C.R. 150. 6Ibid. at p. 156. 71982 CanLII 15 (SCC), [1982] S.C.R. 202. 8Ibid. at p. 213. 91975 CanLII (SCC), [1976] S.C.R. 718. 101986 CanLII 71 (SCC), [1986] S.C.R. 704; (1986) 28 D.L.R. (4th) 1. 11Supra, Note 4. 121995 CanLII 109 (SCC), [1995] S.C.R. 967. 13[1997] O.J. No. 1575 (Ont. C.A.). 14(1997), 1996 CanLII 1178 (ON CA), 141 D.L.R. (4th) 72 (Ont. C.A.). 15(1996), 175 N.B.R. (2d) 267 (N.B.Q.B.). 16(1996), 1996 CanLII 8605 (BC SC), 27 B.C.L.R. (3d) 300 (B.C.S.C.). 17(1996), 1996 CanLII 7972 (ON SC), 28 O.R. (3d) 281 (Ont. Gen. Div.). 18Supra, Note 10. 19Supra, Note 4. 20Supra, Note 12. 211990 CanLII 110 (SCC), [1990] S.C.R. 1298. 22Ibid. at p. 1320. 231982 CanLII 15 (SCC), [1982] S.C.R. 202. 241982 CanLII 27 (SCC), [1982] S.C.R. 145. 25Ibid. pp. 157-58. 26Ruth Sullivan, Dreidger on the Construction of Statutes, 3d Ed. (Markham: Butterworths Canada Ltd, 1994) at p. 131 et seq. 271981 CanLII 29 (SCC), [1981] S.C.R. 181 at p. 195. 28(1990), 1989 CanLII 284 (SK CA), 77 Sask. R. 94 at p.131, para. 111. See also Newfoundland Association of Public Employees v. Newfoundland (Green Bay Health Care Centre), 1996 CanLII 190 (SCC), [1996] S.C.R. 3. 29(1993), 1993 CanLII 6637 (SK CA), 109 Sask. R. 198. 30Ibid. at pp. 218-19. [6]Supra, Note 4. [7]Supra, Note 12.

Two female employees filed complaints with the Saskatchewan Human Rights Commission alleging sexual harassment and discrimination contrary to the Saskatchewan Human Rights Code. The unionized employer applied for judicial review in the nature of prohibition contending the provisions of the Code were superseded by the collective agreement and s.25 of the Trade Union with the result that the Board of Inquiry lacked jurisdiction to hear the complaint. The chambers judge found the Act took precedence over the Code on the basis that the Act dealt specifically with the employment relationship and granted an order prohibiting the Board of Inquiry from hearing and determining the matter. Sub-questions to be determined included: what are the statutory schemes of the Trade Union Act and the Saskatchewan Human Rights Code; what has the Supreme of Canada decided about the exclusive jurisdiction of an arbitrator to resolve disputes in the context of labour law; the essential character of the dispute and ambit of the collective agreement; whether either the Code or the Act has exclusive jurisdiction to decide the dispute and if not, which statute takes priority or is paramount. HELD: The order of the Court of Queen's Bench was set aside and the matter was remitted to the Board of Inquiry appointed under the provisions of the Code. 1)The chambers judge correctly decided that the issue in this case is confined to a determination of the correct forum in which to bring the complaint of sexual harassment. 2)Human rights are fundamental, quasi-constitutional rights which embody fundamental values and public policy. Because human rights are not private rights, but public rights which constitute fundamental public policy, parties are not able to contract out of, alter, amend, or repeal or create exceptions to human rights provisions. To do otherwise would permit the denigration of the rights and obviate the protection of the rights the statute seeks to protect. 3)The mere fact that a collective agreement includes an article or clause which complies with the Code or a provision which covenants not to discriminate on the basis of the grounds set out in the Code, does not in and of itself transform the nature of the dispute from a human rights violation to a breach of the collective agreement. The ambit of the collective agreement does not affect the finding that the essential nature of the dispute is a human rights violation particularly when the public interest component and wide powers granted under the Code to redress a violation are taken into account. It is not in its essential character a complaint arising out of the employment relationship under the collective agreement. 4)The Commission was awarded its costs on double column V in this Court and on the appropriate Court of Queen's Bench tariff. No costs were requested by the intervenor.ADDENDUM: Paragraphs number 25 and 31 are substituted as follows: [25] This position was reinforced by Weber v. Ontario Hydro and New Brunswick v. O'Leary. The policy driving such decisions is that the dispute resolution process, established by the various labour statutes, should not be duplicated or undermined by concurrent common law actions in the courts. This also conforms to the theory of deference that courts accord decisions of specialized tribunals. For a complete discussion of the issue see Parr and Prince Albert District Health Board v. Saskatchewan Federation of Labour released concurrently with this judgment. The Ambit of the Collective Agreement [31] One must not lose sight of the fact that the terms of the collective agreement itself can play an important role in the determination of whether the jurisdiction of the court has been ousted in favour of an arbitrator. The fact that parties have included an anti-discrimination clause in the collective agreement does not alter the fundamental nature of the dispute or have the effect of extending the scope of the arbitrator's jurisdiction. It may play a role in determining whether the statutory tribunal would decide to hear the complaint, but it cannot affect the determination of the essential nature of the dispute or the question of jurisdiction. The essential issue is whether this complaint is a dispute between the parties with respect to the meaning, application or alleged violation of the collective agreement. To find that it is, with the result that the dispute must be arbitrated, would permit the parties to contract out of the Code, something they cannot do.

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J. Q.B. A.D. 1994 No. 2686 J.C.S. IN THE QUEEN'S BENCH JUDICIAL CENTRE OF SASKATOON BETWEEN: R. G-H and W. G-H and HELENE CHRISTISON and HELENE CHRISTISON COUNSELLING INC. and K. T. (H.) DEFENDANTS R.A.J. Robertson for the plaintiffs and T.M. McManus A.S. Brent for the Christison defendants R.G. Kennedy for the defendant K. T. (H.) and J. E. Seibel JUDGMENT WEDGE J. November 5, 1996 INTRODUCTION This action arises out of bitter divorce and an acrimonious custody dispute. The parties each contend that the facts bring into conflict different fundamental societal interests: society's interest in the protection of children from abuse, society's interest in the protection of the good reputation of its members and society's interest in the fair and effective administration of justice. R.G.H., the father of two little boys, and his present wife, W.G.H., claim that the mother of the boys, his ex-wife, K.T., and child and family counsellor, Helene C., wrongfully accused them of physically and sexually abusing the children. The allegations appeared as facts in four reports prepared by the counsellor and given to the family court, social services, the police and other persons. The accusations were found by authorities to be baseless. The plaintiffs, the father and his present wife, both medical professionals, say that the dissemination of the unfounded and defamatory accusations was motivated by his ex-wife's attempt to gain sole custody of the boys and that the counsellor was "hired gun" in her hands. [This strategy has been described as the "weapon of the times"]. As result, they have suffered loss of reputation, professional standing and marital discord. The scurrilous content of the reports and the spread of their libellous falsehoods had escalated over period of two years and law suit was the only way of stopping the damage. The co-defendants, the mother and counsellor, protest that they were both under duty to report the boys' disclosures of physical and sexual abuse in the father's home. The reports were prepared for use in family court custody proceedings and their maker is protected by law from being sued. The motive behind legal action is to bankrupt the ex- wife so that she will be unable to oppose an application by the father to change the joint custodial arrangement, if he and his wife decide to move to the United States to practice medicine. In the best interest of the children, the trial should never have happened. The issues to be decided are:1.Did the co-defendants libel the plaintiffs by publishingeach of the four reports thus causing damage to theirreputation?2.Did the co-defendants conspire together to libel theplaintiffs and wrest custody from the father?3.Was the co-defendant counsellor incompetent and unqualifiedto assess and counsel the children and negligent in thepreparation of the reports? THE FACTS There is little dispute over the sequence of events leading up to trial. The facts must be set out in some detail. K.T. and R.G.H. were married in 1980. R.G.H. is specialized medical doctor and K.T. was trained as nurse. They had two children, (born […], 1987) and K, (born […], 1989). By 1990, their marriage had deteriorated to the stage that they agreed to separate and prepare to divorce. On December 27, 1990, K.T. moved to Vancouver with friend, David. She left she said, because R.G.H. "did not understand what my goals and aspirations were" and that she needed to remove herself temporarily "to learn to be better mother." She told family counsellors in British Columbia and later in Saskatoon, horror stories of R.G.H.'s control over her, his terrible temper and his physical and sexual abuse of her. According to R.G.H., who denied abuse, K.T. left to resume her education. Before separation, the parents had agreed in writing that they would have joint custody of the boys. Their primary residence was with their father and their mother returned from Vancouver one week-end month to be with them. This continued until May 29, 1991, when K.T. moved back to Saskatoon now "ready to be mother to her children." R.G.H. claimed and K.T. did not deny, that what K.T. really wanted was reconciliation between them. But R.G.H. was not interested and had started to date W.G.H., divorced medical doctor with one child, M. In June of 1991, R.G.H. and W.G.H. and their children started living together as blended family. Almost immediately, K.T. began to feel that W.G.H. was usurping her place as and K's mother and the seeds were sown for the four acrimonious years to follow. Upon application to the Family Court by K.T. in February, 1991, the custodial arrangements had been continued on an interim basis, but now that she was in Saskatoon again, she wanted prime residency. Eventually, in February, 1992, week long trial on the issue of custody was held in Unified Family Court before Madam Justice M. Carter, who made the interim arrangement final. In her judgment dated March 5, 1992, Madam Justice Carter observed that "the relationship between this young woman, W.G.H., and K.T., the mother, were, to put it gently, strained: confrontation, accusations, intimidation were used instead of ordinary communication." (p. of unreported judgment). At p. of her judgment, Madam Justice Carter stated that W.G.H. had telephoned K.T. indicating that K.T. should ". butt out. K.T., on the other hand had called W.G.H. names that are usually attributed to fish wives, and no doubt goaded her into attacks on K.T.." Madam Justice Carter refused to disrupt the status quo, that being that and reside in their father's home, and stated: at the conclusion of the trial gave judgment for divorce as both parties undertook not to appeal the divorce judgment, and as the hostility is so high between W.G.H. and K.T., ordered that the judgment take effect from the 29th of February, 1992 (thus ensuring that the celebration of that event would be only every four years). Within eight months of the trial, on October 23, 1992, K.T. applied to vary Madam Justice Carter's order on the grounds that the boys were not being cared for properly in their father's home. In support of his allegations, she filed report prepared by Helene C. (of Helene Christison Counselling Inc.). This report dated October 16, 1992, is the first of the allegedly defamatory reports. Helene, who had not been able to interview R.G.H. and had never been in K.T.'s home, after interviewing K.T. and/or the children about nine times in September and early October, recommended that the children "should unquestionably be placed with their mother for the best possible care." Madam Justice Carter struck K.T.'s affidavit with the attached report and denied the request for variation. (The four Reports are exhibits on record). On December 16, 1992, as the result of an application by R.G.H., consent order was issued, directing compensatory Christmas access to K.T. but dismissing his application to restrain his ex-wife from taking the children for any counselling for year. By this time, they had seen Helene for seven more sessions. On this application Helene filed an affidavit to which she attached Report #1. This affidavit contained the first innuendo of sexual improprieties by W.G.H.. It was also sworn to be made in support of an order for home study which (insofar as could ascertain) had not been included in the motion nor consented to by either R.G.H. or K.T. in the December 16, 1992 order. In February of 1993, only three months later, K.T. again applied to vary the custodial arrangements. The alleged change in circumstance was that K, the younger child, was now being physically abused by his father and W.G.H.. On January 6, 1993, K.T. noticed bruises on K's buttocks. She immediately took the child to their family doctor, Dr. Mark Boechler, who saw "faint bruising" but could not determine the cause. Not satisfied, K.T. photographed K's buttocks and took the photographs to Dr. Anne McKenna, pediatrician at the University Hospital, where W.G.H. also practised. On the strength of K.T.'s information and the photographs, Dr. McKenna was of the opinion that the bruises were "unequivocable evidence of child abuse" and recommended that R.G.H. and W.G.H. should not have access to the boys for three months. Dr. McKenna sent copy of her report to the Department of Social Services so that there could be an investigation by the department and/or the police. Faced with Dr. McKenna's opinion and further report prepared by Helene C., dated February 9, 1993 (Report #2 Progress Report for Children), R.G.H. sought an opinion from Dr. Martel, another pediatric specialist. Report #2 contained allegations of physical and sexual abuse and alcoholism. By this time, W.G.H. was pregnant with R.G.H.'s child and consumed very little alcohol. In an affidavit, R.G.H. had admitted to spanking on his bare buttocks with his hand. had been chasing his step-brother M, another 3� year old, with play scissors sharp enough to cause injury. R.G.H. deposed that in retrospect, he believed that he struck too hard but felt that the situation was serious at the time. Dr. Martel disagreed with Dr. McKenna. He wrote that he would not and could not form the opinion that the condition shown in the photograph was "unequivocable evidence of child abuse." In February 8, 1993 affidavit, K.T. said that she feared for the children's safety if their father had unsupervised access. (At trial the year before, K.T. had said that R.G.H. was good father). It is obvious that Mr. Justice F. Dickson did not find child abuse. On February 12, 1993, he dismissed K.T.'s variation application and ordered that she pay $600.00 costs, rather unusual order in family court chamber applications. That decision did not bring an end to the ever escalating dispute. Acting on Dr. McKenna's report, in February, the Department of Social Services investigated the complaint. Norm Pantel, social worker who interviewed R.G.H., W.G.H., K.T. and the boys, did not take the allegations of abuse seriously. He believed that Helene C. was "hired gun." Not deterred by all of the above, Helene C. prepared the report dated June 23, 1993, (Report #3 Follow-up Psychological Report) announcing further disclosures by the children at the continuing counselling sessions. The report contained degrading accusations of sexual touching, sexual exploitation of and alcoholism against W.G.H. (R.G.H. had become less of target by this time). Copies of Report #3 were now sent to three social workers at the Department of Social Services, to Dr. McKenna and probably to the police. In any event, in July of 1993, Corporal Simpson of the Saskatoon Police Service investigated the allegations of the sexual criminal offences. He interviewed all of the parties and reported that had made no disclosures to him and that "there was no evidence of abuse." K.T. pressed on. On August 18, 1993, she noticed several bruises on K's body which he alternatively said, then denied, were caused when W.G.H. hit him with bat. K.T. took to see Dr. Misfelt, who reported on August 19th, that she "could not say conclusively that the bruises were the result of the physical abuse." (The very minor bruises seemed to be those common to all active little boys not the type for which one would expect trips to emergency departments or doctors). Maureen Millar, of the Department of Social Services conducted an extensive inquiry this time. During September, meetings and interviews with all concerned took place. On September 27, 1993, Ms. Millar reported that "there was no evidence of abuse." All was quiet for few months until January 1994. Helene C., apparently outraged that her opinions had been ignored by the courts, the Department of Social Services, the police and doctors, except Dr. McKenna, wrote the report of January 6, 1994, (Report #4 Short But Disturbing Up-date), repetition of horrendous abuse and disgusting drunken behaviour by W.G.H. and litany of praise for K.T., her client. copy was sent to Maureen Millar and to the City Police. R.G.H. and W.G.H., through their counsel had, several times during 1993, attempted to have K.T. consent to home study but there was never an agreement as to who should conduct it. Finally, in early 1994, Dr. McKenna was contacted and asked to refer the youngest child, K, to Dr. Ester Cherland, child psychiatrist. After the usual assessment procedures and tests were carried out, Dr. Cherland reported back, on February 21, 1994, to Dr. McKenna. On p. of Dr. Cherland's letter, this appears: The question Dr. McKenna asked of me was whether could give an opinion to her about the allegations of abuse of [K] which have not been substantiated. Do they appear credible? It is not difficult to infer that by early 1994, Dr. McKenna was having second thoughts about her diagnosis of year before which had been used by K.T. in attempts to vary custody. In this trial, the spanking seemed to be the focal point of the defence and was the only real independent evidence of excessive parental discipline. Dr. Cherland's assessment letter is interesting. It appears to be very neutral, makes no accusations of inappropriate behaviour by any of the parties but the inference is clear: she found no sexual or physical child abuse and was of the opinion that "was doing very well in his growth and emotional well being. This is evidenced by comments from both of his teachers." She also thought that he had had enough counselling. On p. of the report she concluded: My suggestion is that because of the ill feeling from the beginning, it may be appropriate for [K] to not continue to see Ms. Christison. If another counsellor is desired by K.T. or R.G.H. feel that it is important they both agree about the counsellor before [K] were to begin. It may be important for that counsellor (sic) understand both parents (sic) position before beginning and decide if the separate goals the parents may have for counselling are compatible enough to be therapeutically helpful to [K]. If were to see [K] for an assessment of his developmental and emotional well being, would not investigate further the current allegations. feel it is important to leave any issues with the Department of Social Services and the police. In addition, would like about months to pass from his current counselling sessions. As stated before would see [K] with each of his parents on one occasion and am not prepared to see either [K] or his brother in counselling. In letter to Dr. Cherland dated May 2, 1994, Helene C. wrote that she was responding to the above report. The tone of this letter was vindictive, self-serving and defensive. She questioned Dr. Cherland's judgment and actually asked her to revise her report (on p. 2): In light of these points, wonder if you would be prepared to revise your report and recommendations and whether you would at least be prepared to interview these children after have had an opportunity to prepare them to speak to you freely and without fear. six month wait is ludicrous when one considers the ongoing damage these children are suffering. (the underlining is mine) K.T. followed Dr. Cherland's recommendation that counselling be brought to halt for six months. But Helene C., now in defence of her reputation, kept the acrimonious feelings festering. In August 1994, the six month interlude during which Helene C. could not see the children, was coming to an end and during which period no further "disclosures" by the boys were reported. R.G.H. and W.G.H., on the advice of their legal counsel, decided that the only way to stop the perceived damage to their reputations and their emotional well-being was to launch this law suit. In flurry of publicity near the end of 1994 and early 1995, Helene C. gave interviews to the Star-Phoenix and CBC in which she aired her complaints about being sued. She did not name the plaintiffs but portrayed herself as the sole saviour of two abused children whose complaints were not taken seriously by any of the authorities charged with child protection, including the courts. In the meantime, K.T. had met Don J., her present husband, in July of 1994 and she married him in April of 1995. Don is social worker with the Young Offenders branch of the Department of Social Services. He is divorced and he and his ex-wife have joint custody of their two children. The children reside with their mother and Don has access five days month when his children and K.T.'s become blended family during K.T.'s access to and K. The tensions and acrimony lessened somewhat, according to W.G.H., after K.T. changed solicitors and retained Mr. Kennedy of the Gauley firm in early 1995. In letter he suggested that, in the best interest of the children, an agreement should be reached, perhaps through mediation, to prevent trial in which "no party wins all parties lose." This did not happen but on July 15, 1995, K.T. tendered written apology "To Whom It May Concern." The apology was not accepted by R.G.H. and W.G.H. as being an unequivocable apology. (The effect of this apology will be discussed later). So, as shield from the weapon of choice in custody disputes, this trial which should never have happened, did happen. THE ACTIONS LIBEL The elements of the tort of defamation are so well established in the common law that there is no need for authoritative support. The plaintiffs must prove that each of the defendants published written defamatory statements which would likely injure their reputations. They may rely upon three presumptions: that the statements were published maliciously (malice in law), that the statements were false; that they suffered damage. To defend themselves, each of the defendants has the burden of establishing that she enjoyed privilege which may be absolute or qualified and/or statutory. Absolute privilege gives total protection from law suits; qualified privilege may be defeated by proof by the plaintiffs that the defendants acted with actual malice; the degree of statutory privilege depends upon the protection granted by particular statute. libel action may also be defended by plea of justification: the defendants must prove that every defamatory statement is true. Justification is not an issue in this trial. The plaintiffs were advised in mid-July 1996, that K.T.'s justification plea would be withdrawn. This was done formally on behalf of K.T. on the first day of trial and on behalf of Helene C. on the fourth day of trial. THE LIBEL ACTION AGAINST K.T. Publication Every repetition of defamatory statement is new publication the person who repeated it is to be treated as though it had originated with her. It is no defence that K.T. merely distributed Helene C.'s Reports in which the defamations were written. K.T.'s admissions and the evidence establish that she published the Reports as follows: Mr. McAskill, Principal, River Heights School Report #1 Mary Hanna, Kindergarten Teacher, River Heights School -Report #2 Joan Lutz, Teacher, Park Heights Pre- School Report #3 Laurie LaFortune, Teacher, Park Heights Pre-School Reports #1 #2 Carol Cunningham, Teacher, North Saskatoon Pre-School. Ron Boden, Principal, River Heights School Report #3. Dr. M. Boechler Report #1 Workers at the Saskatoon Community Health Clinic- Reports #3 Dr. Marlys Misfeldt. #1 (perhaps #2 3#). Dr. Cherland- reports #1, #2 and #3. Defamatory At the outset, K.T.\'s counsel conceded that, ontheir face, the allegations of sexual and physical abuse andalcoholism in Reports #2, #3 and #4 were defamatory. Report #1 dealt, for the most part, with perceived emotional neglect by R.G.H. and W.G.H., the wealthy, busy professionals. The children were said to be in danger of becoming "poor little rich kids". While the Report is critical of R.G.H. and unprofessionally one-sided containing assumptions without factual basis, do not think that it is defamatory. In hindsight, R.G.H. might have been wise to attend one meeting with Helene C. and K.T. (with or without the boys) to attempt to stave off further attacks. Qualified Privilege K.T. must therefore establish that she had qualified privilege to publish Reports #2 and #3. person who makes statement in discharge of public or private duty about subject matter in which both that person and the person to whom the statements are made have legitimate common interest is said to enjoy qualified privilege. In Sapiro v. Leader Publishing (1926), 20 Sask. L. R. 449, the Saskatchewan Court of Appeal explained that it is the special relationship between the publisher and the person to whom the communication is made that makes it her duty to speak. In L.G.C. v. V.M.C. [1996] B.C.J. no. 1585, Dorgan J. of the British Columbia Supreme Court explained parental duty in the context of its facts (on p. 7): Similarly it is not difficult to conclude that parents will be held to the highest moral, legal and social duty to receive information from their children regarding incidents or allegations of sexual abuse and that their interest in receiving communications of this nature are common with the interests of their children who make such communications. The fact that the alleged abuser is one of the parents, it seems to me, highlights the importance of legally recognizing this privilege. If the law did not recognize communications of this nature as being privileged, little protection would be afforded those members of family who stand in most need of it. To protect their children is, without doubt, one of the highest duties imposed upon parents. But the "communications of this nature" referred to in the above passage were communications of adult children to their mother about sexual abuse by their father when they were younger. These persons were the defendants being sued by their father. Their mother believed them. The situation here is in no way comparable. Teachers, doctors, nurses, do have reciprocal duty to receive such information from parent and then report it to proper authorities but when K.T. delivered the Reports to the recipients, she knew that the accusations had been declared to be without foundation by the Department of Social Services, the police and the court, and did not pass on that information. Rather, she told them to keep the reports confidential. The Supreme Court in Hill v. Church of Scientology and Manning (1995), 1995 CanLII 59 (SCC), 126 D.L.R. (4th), 129, emphasized that qualified privilege attaches to the occasion upon which the communication is made, not to the communication itself. Although have reservations, shall proceed on the basis that prima facie, K.T. enjoyed qualified privilege because parental duty is so compelling. In order to defeat the defence of qualified privilege, the burden of proof rests on the plaintiffs to establish that the statements were made with express malice which can be proven by extrinsic or intrinsic evidence. The Supreme Court in the Scientology case, commented upon the concept (on p. 170, para. 145): Malice is commonly understood, in the popular sense, as spite or ill will. However, it also includes, as Dickson J. pointed out in dissent in Cherneskey, supra, at p. 346, "any indirect motive or ulterior purpose" that conflicts with the sense of duty or the mutual interest which the occasion created: see, also, Taylor v. Despard (1956), 1956 CanLII 124 (ON CA), D.L.R. (2d) 161, [1956] O.R. 963, 1956 CanLII 124 (ON CA), [1956] O.W.N. 829 (C.A.). Malice may also be established by showing that the defendant spoke dishonestly, or in knowing or reckless disregard for the truth: see McLoughlin, supra, at pp. 625- 6, and Netupsky v. Craig (1972), 28 D.L.R. (3d) 742 at pp. 746-7, 1972 CanLII 19 (SCC), [1973] [146] Qualified privilege may also be defeated when the limits of the duty or interest have been exceeded: see Raymond E. Brown, The Law of Defamation in Canada 2nd ed. (Scarborough: Carswell, 1994), at pp. 13-193, 13-194; Salmond and Heuston on the Law of Torts, 20th ed. by R.F.V. Heuston and R.A. Buckley (London: Sweet Maxwell, 1992), at p. 16-7. As Earl Loreburn stated at pp. 320-21 in Adam v. Ward, supra: the fact that an occasion is privileged does not necessarily protect all that is said or written on that occasion. Anything that is not relevant and pertinent to the discharge of the duty or the exercise of the right or the safeguarding of the interest which creates the privilege will not be protected. [147] In other words, the information communicated must be reasonably appropriate in the context of the circumstances existing on the occasion when that information was given. (Underlining is mine). The relationship between K.T. and W.G.H. was particularly acrimonious but K.T. insisted that her only motive in publishing the slanderous falsehoods was the welfare of her children. She had duty to protect them from abuse by making known to various teaching and health professionals what the children had told her about their father's "alcoholic home" and W.G.H.'s disgusting sexual misbehaviour. In para. of the apology of July 15, 1996, she wrote: These reports are defamatory of R.G.H. and his wife W.G.H. as they contain allegations and imputations concerning the character and reputation that are wrong, totally inappropriate, and have no basis in fact. If, as K.T. said, the allegations were "wrong" and had "no basis in fact," how could publishing them be in the best interests of her children? Reports #2 and #3, containing untrue and degradingallegations are in themselves intrinsic evidence of malice. Each time K.T. failed in her application to vary custody with Helene C.'s help, the nature of the Reports become more scurrilous. In her evidence at trial, K.T. seemed to retract her admissions in the apology that the allegations in the Reports were true, by repeating, like broken record, "I believed what my children told me." The whole long history of K.T.\'s attempts in andout of court to discredit R.G.H. and W.G.H. so that K.T. couldhave the children live with her and restrict access to R.G.H.,is extrinsic evidence of "impure motive" or, in other words,"malice". The information communicated was not reasonably appropriate in the context of the circumstances existing when K.T. published the Reports. K.T. taped every telephone conversation between her household and R.G.H.'s for period of about four years, from 1992 to 1996, for total of over 24 hours of recordings. (Helene C. was not party to any of these conversations.) The existence of these tapes came to light during Mr. Kennedy's cross-examination of W.G.H.. The reasons given for my refusal then to stay proceedings or allow lengthy adjournment of the trial are on record. add now that allowing stay of proceedings for non-disclosure or long delay in the trial for "fishing expedition" would not have been in the best interests of the children. In Fattali v. Fattali, 1996 CanLII 7272 (ON SC), [1996] O.J. no. 1207, (p. 5), the family court judge said, in refusing the admission of an audio tape in custody hearing: His counsel wished the audio tape to form part of the evidence at the motion. In my view, such forays into the gathering of potential evidence are to be discouraged in the strongest terms. Proceedings involving the best interests of children should not be decided on evidence the product of calculated subterfuge. It does not help the father's position to be plotting tricks or deceit to advance his cause. K.T.\'s excuse (which I do not accept) was that she taped inorder to keep track of the number of telephone calls she madeto her children. I think it was just another trick to try andadvance her cause. The Witnesses In his testimony R.G.H. said that K.T. was very angry when he began dating, and then living with W.G.H.. R.G.H. thought that the children were adjusting well and had adapted to the change in their living arrangements. They were, at least in his home, normal, happy, scrappy little boys who did not need counselling or therapy. In the fall of 1992, after they had lived with R.G.H. for nearly two years, Helene C. telephoned him to request that he take part in her counselling sessions. He refused for that reason. Besides, he said, he had information that Helene C.'s professional expertise was suspect. The continuing variation applications and the reports alleging alcoholism and sexual abuse outraged him. R.G.H. regretted the severity of the spanking he had given in January of 1993, but only spanked because of "life and limb issues." The Reports had devastating effects on his wife; she suffered insomnia and emotional distress and their marriage deteriorated. The allegations of bizarre sexual behaviour by W.G.H., which he must have permitted, were known around medical circles and referrals of children to him by other doctors practically ceased. The tenor of his practice changed. At this time he and W.G.H. have no plans to practice in the United States. W.G.H.'s distress was evident as she sat through the whole trial. She was very emotional witness and did not disguise her continuing animosity towards K.T. and her goal to expose Helene C. as incompetent. Between them, they have made her life "hell" for the past four years. Her marriage had been in danger of falling apart and her practice at the University Hospital was curtailed. W.G.H. presented herself as very intelligent, outspoken, determined and somewhat arrogant person. She vehemently denied, and cried over each degrading passage from Report that was referred to in court. W.G.H. admitted that she was capable of calling K.T. bitch and Helene C. charlatan. There were some things which she could not, or would not, recall. Her anger at times was so all consuming that it seemed to obliterate some of her memory. W.G.H. did not learn until August of 1994, how widely the Reports had been circulated. She testified that had she known earlier, she would have jumped off the University bridge. She denied saying some things which she probably did say. An example was her denial of telling Judy Hubbard (Don's ex-wife) that she wanted to bankrupt K.T. so that the court actions would stop. But for the most part, with few exceptions, found her to be credible witness. think that, to certain extent in the beginning, W.G.H. helped to foster K.T.'s jealous rage towards her. Had she been little more tactful and less blunt about her motherly responsibilities towards her husband's children and not referred to them as "her boys" in K.T.'s hearing, K.T. might not have felt so threatened and vindictive. Don Hubbard, K.T.'s present husband and social worker, did not meet K.T. until July 1994, and married her in 1995. He post dated the counselling sessions, the Reports and the most frenzied period of K.T.'s attempts to change custody. Don and his ex-wife Judy have two children who reside with their mother, spend access periods with Don and K.T., and frequently and K. The three households are good examples of modern blended families. Don said that he observed signs of distress in and late in 1994 and thought that they needed professional help. Don does not believe in corporal punishment nor does K.T. now although she had admitted to having earlier spanked occasionally. Don, who could not in any sense be described as an independent witness, did concede that when his children and K.T.'s were together, they all sometimes exhibited tantrums and aggressions like all normal children. Judy Hubbard testified that she and Don got along together quite well after their separation and had no real trouble in arranging access until Don met K.T.. It seems, she said, that "after K.T. comes on the scene lot of people have trouble Don was like puppet." K.T. once accused Judy of abusing her children. Don and K.T. tried to insist that Jeremy, one of Don's children, take counselling but Judy saw no reason for it. There was even threat to "take Judy to court" to change the joint custody arrangement. Since this action was started, access has become easier. Judy had contacted W.G.H. and R.G.H. in February of 1995 because she had heard they were having problems with K.T.. They met at R.G.H.'s home. Judy confirmed that W.G.H. had said that they wanted to bankrupt K.T. so she could not go to court any more. (W.G.H. was probably capable of having said this.) As witness, K.T. was the complete opposite of W.G.H.. As calm and cool as ice on the stand, she played the part of the reasonable, aggrieved, concerned parent to the hilt. K.T. is also well educated and intelligent woman. She earned Bachelor of Science in Nursing in 1979, and Bachelor of Commerce degree in 1992, after her divorce. K.T. returned from her sojourn in Vancouver the spring of 1991, only to find that R.G.H. was committed to W.G.H. and that W.G.H. seemed to be usurping her place as and K's mother. Then the struggle for custody as outlined earlier took place. After checking with Mr. Timothy Turple, her legal counsel at the time, K.T. went to see Helene C. and then took the boys to her for counselling and/or therapy. From September 1992 to February 1994, Helene C. had approximately 45 hour long sessions with the children, during which time the boys, particularly K, were said to have made increasingly disturbing disclosures to her. K.T. testified that "Helene said the children told her things. believed what they had told her." With the discovery of the bruises on K's buttocks in January of 1992, K.T. thought she had concrete evidence of abuse, confirmation of the disclosures to Helene and fuel for the next run at custodial variation. On K.T.'s behalf, it was argued that her belief in what the boys disclosed to her and to Helene C., is evidence that she acted without malice to protect them from abuse. K.T. is intelligent and experienced enough to have realized that the sophisticated wording of many of the "disclosures" was so beyond the language skills of 3� year old child, that they were not to be believed. She did not expect the teachers and others to whom she published Reports #2 and #3 to take them literally and to act upon them immediately because she asked them to keep the Reports confidential. Had she believed the dangerous allegations, she would not have said, through her legal counsel in letter dated January 26, 1995 (an exhibit at trial) "that nothing that had transpired in the past can or should affect the boys' residence." All in all did not find K.T. to be an entirely credible witness. In the context of libel action (or negligence or conspiracy) alleging sexual physical abuse, having its roots in custodial dispute, balancing of the interests of the parties starts with the scales heavily weighed on the side of the children's interests. Society is so shocked and revolted by disclosures by children of abuse at the hands of persons entrusted with their care, that there is almost presumption that the allegations are true. Anyone with reasonable grounds to suspect abuse by another has moral and legal duty to reveal the disclosure to child protection or police services which in turn have duty to investigate. In D.B. v. Children's Aid Society of Durham (unreported [1994] O.J. no. 643, action 20962/87) March 23, 1994, the trial judge quoted an exceptionally well-qualified expert on child and family problems (in para. 55): Perhaps the most difficult thing for social worker to achieve is to be able to manage her own feelings while participating in the investigation. She must at all times realize that an alleged perpetrator will always be considered to be guilty by the outside world and should therefore avoid adding to this problem. She indicated that this is particularly so where this type of allegation is made during the course of custody dispute. Such is the increasing frequency of such allegations that she described this tactic as "the weapon of the times". The societal value of good reputation was proclaimed by the Supreme Court in the Scientology case on p. 10: Democracy has always recognized and cherished the fundamental importance of an individual. That importance must, in turn, be based upon the good repute of person. It is that good repute which enhances an individual's sense of worth and value. False allegations can so very quickly and completely destroy good reputation. reputation tarnished by libel can seldom regain its former lustre. democratic society, therefore, has an interest in ensuring that its members can enjoy and protect their good reputation so long as it is merited. And on p. 176: The written words emanating from the news conference must have had an equally devastating impact. All who read the news reports would be left with lasting impression that Casey Hill has been guilty of misconduct. It would be hard to imagine more difficult situation for the defamed person to overcome. Every time that person goes to the convenience store, or shopping centre, he will imagine that the people around him still retain the erroneous impression that the false statement is correct. defamatory statement can seep into the crevices of the subconscious and lurk there every (sic) ready to spring forth and spread its cancerous evil. The unfortunate impression left by libel may last lifetime. Seldom does the defamed person have the opportunity of replying and correcting the record in manner that will truly remedy the situation. (Emphasis is mine) The underlined words are an eloquent description of what W.G.H. said she felt when her colleagues at the hospital, the nurses, teachers and friends on social occasions looked at her in certain way and she did not know who was aware of the existence or contents of the Reports. In the balancing act here, adding the weight of time during which the "truth" of falsehood was proclaimed and the Reports were at large, the malicious motive and the equivocal apology, the scale is tipped in favour of the reputations of R.G.H. and W.G.H.. LIBEL ACTION AGAINST HELENE C. AND HELENE C. COUNSELLING INC. Helene C. did not give evidence at trial. All claims against her were defended with the propositions that Helene C. enjoyed either an absolute privilege which protected her from all legal actions arising out of her position as witness in court proceedings or qualified statutory privilege under The Child and Family Services Act, S. S. 1989- 90, c. C-7.2. Absolute Privilege agree that the law with respect to witness immunity is ancient and "absolutely unarguable." An accepted definition of absolute privilege, of which witness immunity is branch, is found in The Law of Defamation in Canada, Brown (2d) Edition, 1-17: .... There is also an absolute privilege for all those communications made in the course of, or incidental to, the processing and futherance (sic) of judicial and quasi-judicial proceedings. tribunal is exercising functions equivalent to those of court if it is adjudicating upon and determining legal rights between parties, and if it has the power to require the parties' attendance, hear evidence under oath, administer fines, impose punishments, render decisions and enforce orders. The protection extends to all those persons who participate in the proceedings, including the judge, jury, witnesses, parties and their counsel. Also it extends to the content of all pleadings, documents, and testimony offered in evidence, and to all actions taken preliminary but necessary to the institution or processing of the action or essential to the judicial review of or execution upon the judgment or decision. Insofar as the first two of Helene C.\'s Reports weretendered in Unified Family Court variation hearings, and theother two were prepared in contemplation of using them infuture hearings, Helene C. unquestionably enjoyed an absolute privilege. On the other hand, it is also absolutely inarguable that the privilege was lost when Helene C. published them outside the boundaries of the court proceedings. This is true whether the Reports were to be considered those of an ordinary witness or an expert witness. In the British Columbia cases of Carnahan v. Coates (1990), 1990 CanLII 2299 (BC SC), 71 D.L.R. (4th) 464 and M.-A.(N.) v. M.-A. (I.A.S.) (1992), 1992 CanLII 254 (BC CA), 93 D.L.R. (4th) 659, the courts explored the rationale behind witness immunity. On p. 664-665 of the later case, the following appears: The rationale for the protection offered witnesses from suit, expressed in Watson v. M'Ewan, [1905] A.C. 480 (H.L.), was expressly adopted by the Supreme Court of Canada in Halls v. Mitchell, [1928] D.L.R. 97, 1928 CanLII (SCC), [1928] S.C.R. 125. There Duff J. stated, at pp. 113-4: The basis of the judgment in Watson v. M'Ewan, [1905] A.C. 480, is that statements made by witness as such, in Court, as absolutely privileged, and that this privilege would become illusory, were it not applicable for the protection of statement by an intending witness, as to the nature of the evidence to be presented in Court. As the protection by privilege of the testimony of witnesses in Court is regarded by the law as essential to be administration of justice, and as the extension of that protection to such preliminary statements is regarded as essential to the effectiveness of the substantive privilege, such preliminary statements are held to fall within the rule; but, as Lord Halsbury points out, this strict necessity is the basis of the privilege. In Watson v. M'Ewan there was no question, as Lord Halsbury observes, of communications to persons other than those engaged professionally in preparing the evidence to be presented in Court, and obviously the principle does not extend to such collateral statements. It protects the respondent, whatever his motives may have been, in respect of statements made before the Workmen's Compensation Board and in respect of statements made to the claims agent, voluntary though they were, as to the evidence which he was prepared to give; but this privilege has no relation to the statements made to Dr. Campbell, to Dr. Hewitt, or to Dr. McCallum. (The underlining is mine). The principle thus has no relation to the "collateral statements" to any of the organizations or individual doctors to whom the reports were published for purposes other than use in court. In these two cases, the British Columbia courts in these two cases were very concerned with the protection of the expert witness who, they said, are increasingly necessary for the administration of justice. Any relaxation of the witness immunity rule would discourage experts from reporting or testifying. (The loss of well-qualified, well-prepared expert opinion would be indeed unfortunate but perhaps little discouragement of ill-prepared, one-sided "hired guns" would not be amiss). Once Helene C. published her Reports to various social workers at the Department of Social Services, the police and the doctors, she forfeited her absolute privilege. Statutory Privilege There is some evidence gleaned from the read-in questions from Helene C.'s examination for discovery and the adoption of her pleading by the plaintiffs' counsel, that Helene C. may have had prima facie statutory privilege under s. 12(1) or (3) of The Child and Family Services Act for her publications to the Department of Social Services and the 12(1) Subject to subsections (2) and (3), every person who has reasonable grounds to believe that child is in need of protection shall report the information to an officer or peace officer. (3) No action lies against person who makes report pursuant to subsection (1) unless that person makes it maliciously and without reasonable grounds for his or her belief. (Emphasis is mine). It is to be noted that the Act provides that no action lies unless the person making report makes it maliciously and without reasonable grounds. Both criteria must be satisfied. For the reasons given in my discussion of the libelaction against K.T., I find that Reports #2, #3 and #4 were,on the whole, slanderous. Report #1 was not. It is not necessary or practical to classify all of the individual sentences and phrases in these Reports as either slanderous or innocuous. But here are examples: [B] disclosed and demonstrated how W.G.H. screeches, stumbles, and walks when she drinks. It was very clear that he knew first hand about drunkenness. [B] also disclosed that she fell and smashed bottles in her attempt to refill, and she once threw-up on him and he had to go wash off by taking bath. (June 22, 1993 report). Both children disclosed separately that Ms. Kirkpatrick was lolling about naked with her hand on her crotch and flopped on the couch holding on to her crotch asked if they thought she was being polite by covering her crotch while naked, they indicated that she was enjoying herself and doing it for fun. (June 22, 1993 report). [K] also disclosed that W.G.H. made him comb her belly to the crotch. (June 22, 1993 report). [K]... disclosed that she used Fisher Price knife and threatened to cut off his penis, he ran his finger down his chest and belly and pointed to his face, and his bum. (June 22, 1993 report). Both children say that W.G.H., drunk or sober gets up and hits the children for no apparent reason that the children understand. (June 22, 1993 report). [K] is singled out and taken to bed with adults and his tummy and chest touched. W.G.H. also licks his face and chest with his pants on, but no shirt. He is also exposed to "running naked in the morning and holds on to her "pee pee" when everyone is gone." (June 22, 1993 report). he indicated that she squeezed his penis hard before he pooped. (June 22, 1993 report). Helene C. withdrew her plea of justification at trial. She is not claiming the truth of the above statements nor has she tendered any apology. Reasonable Grounds The legislation requiring person to have "reasonable grounds" of abuse or neglect before reporting information to an officer or peace officer, imports, think, an element of negligence mere suspicions are not enough. The person intending to report has duty to make careful (reasonable) inquiries as to the accuracy of the information, considering its sources. person in the position of Helene C., purporting to counsel over 200 troubled children or families year, must be, or should be, aware that in the heat of custody battles charges of emotional, physical and sexual abuse are made with increasing frequency. shall examine Helene C.'s credentials and techniques more fully in another context. Suffice to say here that two well-qualified experts, after examining Helene C.'s curriculum vitae, the Reports and viewing video tape of one interview with K, were both of the opinion that her qualifications and performances were not up to the professional standards of person holding herself out to be "psychological" counsellor and therapist. As an unprofessional observer of the video tape, was dismayed at the leading questions and unfounded assumptions that the child was about to disclose some horrendous abuse at W.G.H.'s hands and that was "scared" near the end of the taping. It appeared to me that wanted to go home because he was bored after 45 minutes of "aeroplane play." That child was subjected to at least 40 other such sessions over two-year period. For Helene C.'s grounds of belief to be reasonable, she should have gone beyond K.T.'s word and K's painfully extracted "disclosures", if that is what they were. She fails the first branch of the exception in s. 12(c). Malice Reports #2, #3 and #4 contain in them intrinsic evidence of malice. am satisfied that Helene C.'s actions and words outside of the protection of the court proceedings are clear extrinsic evidence of malice. In the text, Duncan and Neill on Defamation, (2d) edition, p. 114, para. 17.05, there is an extensive discussion on malice in the context of qualified privilege. Particularly relevant to this case is the following passage (p. 115): Even positive belief in the truth of what is published on privileged occasion which is presumed unless the contrary is proved may not be sufficient to negative express malice if it can be proved that the defendant misused the occasion for some purpose other than that for which the privilege is accorded by the law. The commonest case is where the dominant motive which actuates the defendant is not desire to perform the relevant duty or to protect the relevant interest, but to give vent to his personal spite or illwill towards the person he defames. If this be proved, then even positive belief in the truth of what is published will not enable the defamer to avail himself of the protection of the privilege to which he would otherwise have been entitled. There may be instances of improper motives which destroy the privilege apart from personal spite. defendant's dominant motive may have been to obtain some private advantage unconnected with the duty or the interest which constitutes the reason for the privilege. If so, he loses the benefit of the privilege despite his positive belief that what he said or wrote was true. (Underlining is mine). In her examination for discovery and statement of defence, Helene C. admitted that she pursued her attempts to gain validity for her reports for her "own impugned personal and professional integrity and reputation." She had been thwarted by the courts, the Department of Social Services and the police and her dominant motive in further publication was to obtain "some private advantage, unconnected with the duty or interest." After the law suit was launched, she involved the media in the case not for the protection and interest of the children, but for her own protection and interest. In an article in the Star-Phoenix, she implied that her allegations had been exaggerated to force authorities to accept her information. Her motivation was not pure. Malice has been well-established. The second branch of the statutory exception is of no assistance to Helene C. Common law qualified privilege The statutory privilege in s. 12 of The Child and Family Services Act is perhaps more stringent re-statement of the common law governing qualified privilege. In addition, her publication went beyond "officers and peace officers." It follows that any such privilege which she may have had was defeated by malice. CONSPIRACY K.T. and Helene C. This cause of action in the plaintiffs' claim was the subject of non-suit motion by both defence counsel. Itwas submitted that the conspiracy claim should be dismissed,since damages in the alleged conspiracy merge in theindividual damages attributable to the publications of thedefamatory material. In support of this merger argument, decision of the English Court of Appeal in Ward Lewis [1955], All E.R. 55, was relied upon. Lord Denning said (at p. 56): It is important to remember that when tort has been committed by two or more persons an allegation of prior conspiracy adds nothing. This case was applied in Elliott v. CBC (1993), 24 Carswell's Practice Cases (3d) 143, which held that where conspiracy to commit tort was alleged, the claim for conspiracy merged with the claim in respect of the underlying tort. In restrospect, think that the only flaw in the non-suit argument was that it was probably premature. At trial, there had been, as yet, no determination that any tort had been committed. That finding has been made now. On that basis, dismiss the conspiracy claim against all defendants. Had not come to this preliminary conclusion, it would have been difficult, on the evidence, to find that there had been prior agreement between the defendants and action taken together to cause damage to R.G.H. and W.G.H.'s reputation. NEGLIGENCE Helene C. and Helene C. Counselling Inc. The plaintiffs' statement that Helene C. conducted negligent investigations which lead to the allegations in the Reports raises several interesting and, perhaps, as yet unresolved questions of law. It seems that anyone so inclined may hang out shingle proclaiming herself or himself "counsellor" and/or "therapist". There is no legislation governing these generic terms. Is there minimum standard of competency to which such person must adhere? What duty is owed and to whom if customer or client or patient suffers damage as result of incompetent treatment or therapy? Helen C. does not have doctorate in psychology which is requried by law for one to practice as psychologist. Nor is she member of voluntary organization, the Canadian Guidance and Counselling Association which publishes Guidelines for Ethical Behaviour, code intended to be guide to counsellors in their everyday conduct and in the resolution of ethical dilemmas. Helene C. does not subscribe to that code. Her expertise, she said (in her examination-for-discovery) comes from wide experience, intuition and an extraordinary memory. She takes no notes during an interview, nor does she make any later, as she remembers everything her hundreds of interviewees tell her and what she has observed. Her "Brief Resume" included in one ofthe Reports, shows that she has an extensive educationalbackground in the United States and then in Canada, years ofexperience but no clinical training in counselling orinterviewing children. Dr. G.R. Fothering, registered and experienced psychologist, described the standard of care expected of registered psychologist in the treatment of patients and the preparation of reports. He also gave critique of video- taped session with K. He concluded that it had many instances of intrusions, failures to listen therapeutically, leading questions and supplied frames for expected ideation all of which violate the standard for both psychological therapeutic assessment and psychological therapeutic intervention, which contaminate the therapeutic alliance. Conclusions based on any contaminated therapeutic alliance are suspect. Dr. Walt Pawlowich, the past president of the Canadian Guidance and Counselling Association, testified that psychological data must be unbiased, accurate, factual and objective. Care must be taken not to ask suggestive questions which will lead children to answers which they think are expected of them. Too numerous interviews cause stress inyoung children - 45 sessions are excessive. It is unprofessional not to keep record, preferably video record, of each interview. In his opinion, Helene C.'s methods fell below the minimum standard expected of trained family counsellor. accept the opinions of these eminent professionals that Helene C. did not conduct herself with that minimum standard. But did she owe duty of care to W.G.H. and/or R.G.H.? (To the credit of both parents, the children are not parties to this action and were not called by either side as witnesses. Perhaps that is ray of hope for better relationships in the future). The British Columbia Court of Appeal in Carnahan said (on p. 471): The state of the law regarding the nature of professional person's duty toward those who come within the range of foreseeable harm from professional misconduct is unsettled. In M.-A. (N.) which followed two years later, the same court dismissed father's action in negligence based upon unsubstantiated allegations of sexual abuse of his child, on the grounds that negligent psychologist owed duty only to the Superintendent of Child Welfare, who had requested psychological report, not to the father despite the harm done to the father's relationship with the child. The Ontario Court of Appeal in D.B. v. Children's Aid Society of Durham, found that caseworker, who was negligent in the performance of her statutory duties owed duty of care to the adult plaintiff. He was the father who had lost custody of his two daughters as the result of the unfounded allegations, in report, that he had sexually molested them. (The daughters were infant plaintiffs distinguishing factor). It was argued on appeal by the defendant Society that it owed duty of care to the children but there was no "co-extensive duty to the alleged abuser" (para. 8). The court found that The Ontario Child and Family Services Act imposed duty of care to the father which was codification of the limited duty of care the society owed to the father at common law. On appeal, the Society conceded that combination of negligence and lack of good faith would give rise to common law cause of action against it but the Court of Appeal declined to decide whether the common-law limited the duty of care to the father so as to preclude mere negligence as cause of action. Frame v. Smith (1987), 1987 CanLII 74 (SCC), 42 D.L.R. (4th) 81, is an interesting decision of the Supreme Court which was interpreted by the British Columbia court in Carnahan to say that injury to familial relationship may not constitute an actionable loss. The Supreme Court was faced with the request to extend the existing tort law to include liability for interference with family relationships. The parties to the action were the divorced mother and father of three children. The father claimed damages from his ex-wife for deliberately interfering with his access rights. The Court upheld an order to strike the claim on the basis that there was no common law right to access upon which an action could be granted. Rights to custody and access were governed by statute. On pp. 118- 119 La Forest J. for the majority stated: In sum, it is by no means certain that permitting civil actions against the custodial parents can be said to be in the best interests of the child, whether this be by creating tort or recognizing fiduciary relationship arising out of court order. Resort even to fines and imprisonment, which is permitted by the Act, has been described as not "entirely appropriate": see James G. McLeod, "Annotation" to O'Bryne v. Koresec (1986), 1986 CanLII 1315 (BC SC), R.F.L. (3d) 104 at p. 105. That is because these may encroach on the resources of the custodial parent and because the child may suffer from the knowledge that one parent has taken such drastic action against the other. This applies, and in some respects with greater force to legal action. Damages can impose far greater financial burden than the fine of up to $1,000 which may be imposed under the Act (s. 39(1)). Furthermore, though the imprisonment of one parent at the behest of the other may be damaging to the child, litigation by one against the other over protracted period may well be even more damaging. Wilson J., dissenting, said that violations of any common law right of custody or access would give rise to cause of action for breach of fiduciary duty. It follows upon the reasoning of the majority that while Helene C. is not parent to these children, (who are not parties to the action) she may have owed them fiduciary duty as their counsellor. However, she owed no corresponding duty to one of their parents for damaging family relationships. The negligence claim against Helene C. andHelene C. Counselling Inc. is dismissed. DAMAGES The plaintiffs have been successful in their libel actions against the defendants and are entitled to damages from each. They have withdrawn their claim for damages for loss of income but ask for general (or compensatory) damages, aggravated damages, punitive damages and $40,740.13 in special damages incurred, they say, in defending themselves and maintaining custody for R.G.H.. The plaintiffs rely upon the substantial awards to lawyers, recently upheld by the Supreme Court, for loss of their reputations. In both the Scientology case and Botiuk v. Toronto Free Press Publications Ltd., (1995) 126 D.L.R. (4th) 609, the Supreme Court held that lawyer's reputation for honesty and integrity is necessary for the practice of law and the whole administration of justice. The good reputations of doctors like R.G.H. and W.G.H. are as important to them, to the interests of society as whole and, in this case, to children in particular. W.G.H. gave up her practice at the University Hospital because she did not know how far the defamatory statements about her alcoholic and sexual behaviour had reached. R.G.H.'s specialized practise included many children referred to him by other doctors. Those referrals dried up when there were rumours that he had some involvement in the abuse of his own children. In deciding under which heads damages should be awarded, look again to the Scientology case. At pp. 176-79, the court discussed general damages which are presumed from the very publication of false statements and are awarded at large. jury (or judge) "should be free to make an assessment of damages which will provide the plaintiff with sum of money that clearly demonstrates to the community the vindication of the plaintiffs' reputation". But the court also suggested that it would not be inappropriate to consider the financial resources of defendants. The court affirmed that it is well-established principle that all persons who are involved in the commission of joint tort, are jointly and severally liable and it would "be inappropriate and wrong in law. to apportion liability either for general or for special damages between joint tort feasors". This comment did not apply to aggravated damages "which are assessed on the basis of the particular malice of each joint tort feasor." In the peculiar circumstances of this case, the above makes it very difficult to apply the rationale of the decision of the Frame case (referred to above in another context) in which the Supreme Court frowned upon civil awards of damage against one parent in favour of another which would act against the best interests of the children. La Forest J. said (at p. 115) that courts are given role of ensuring that issues involving custody of and access to children are determined on the basis of the best interests of the children: Damages may in some cases, deprive child the support he or she might otherwise obtain from custodial parent. So this Court should not play part in "bankrupting" K.T., joint custodial parent with liberal access. She must be able to supply the children with some comforts and all necessities while they are with her. There are no such restraints placed on damages assessed against the defendant Helene C. and Helene Christison Counselling Inc. whose Reports gave K.T. the ammunition she sought to fire her barbs, but venture to guess that her financial resources are limited. interject here: this case was decided upon its own unusual facts. It should be confined to these facts and not be used to encourage actions between hostile parents. Aggravated Damages In discussing aggravated damages the court said: (p. 183 para. 188): Aggravated damages may be awarded in circumstances where the defendant's 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 Robbins J.A. in Walker v. CFTO Ltd., supra, 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". The long-lasting mental distress of the plaintiffswas so abundantly evident at trial that they are entitled toan award under this head. Punitive Damages According to the court, (pp. 185-6), punitive damages must serve rational purpose: In other words, was the misconduct of the defendant so outrageous that punitive damages were rationally required to act as deterrents? (para. 197). I do not think there is need for further deterrencenow. The lawsuit has already acted as deterrent to K.T. all allegations of abuse stopped at its inception. Helene C. and her company will have to overcome the adverse publicity and loss of income which will probably follow this judgment. There will be no award under this head. Special Damages shall not allow the special damages claimed for any of the expenses incurred in the course of the variation proceedings in the family division. Family court costs are the province of the family court. Of the other expenses claimed, the award will be sum which consider to be reasonable and fair in the circumstances. The aggravated damage award against K.T. will be little more than nominal. This does not mean that low value is placed upon the good reputation of the plaintiffs quite the opposite. It is an acknowledgment that they have suffered anxiety and humiliation from the vicious attacks upon them. It is also recognition that, whatever she might have done, K.T. is the children's mother and there must be reconciliation. Special damages 12,000.00 General damages 15,000.00 27,000.00 Aggravated damages K.T. 1,000.00 The Christison defendants 15,000.00 CONCLUSION Judgments for the plaintiffs against all defendants,jointly and severally in the amount of $27,000.00. Judgment for the plaintiffs against the defendantK.T. in the amount of $1,000.00. Judgment for theplaintiffs against the defendants Helene Christison and HeleneChristison Counselling Inc. in the amount of $15,000.00. At the request of counsel, the matter of costs will be spoken to at time arranged by the registrar. The non-publication order made at trial is lifted as against the Christison defendants. The ban is not necessary to protect the identity of the children. The order remains in place as to K.T., R.G.H. and W.G.H. and the boys.

Allegations by the former wife and a child and family counsellor that the father and his new wife had physically and sexually abused the two children were found by authorities to be baseless. The co-defendants, the mother and counsellor, protested that they were under a duty to report the disclosures of abuse. At issue was whether the publication of four reports was libellous thus causing damage to the plaintiffs' reputations, whether they conspired to libel them in order to obtain custody, and whether the counsellor was incompetent and unqualified to assess and counsel the children and negligent in the preparation of the reports. HELD: Judgment was awarded against the defendants jointly and severally in the amount of $27,000. Aggravated damages of $1,000 was awarded against the mother and $15,000 was awarded against the counsellor and her company. 1)To prove that each defendant published written defamatory statements likely to injure their reputations, three presumptions must be made: the statements were published maliciously (malice in law); the statements were false; and the plaintiffs suffered damages. 2)Every publication of a defamatory statement is a new publication. It is no defence that the mother merely distributed the counsellor's reports. 3)Counsel conceded that the allegations in three of the reports, on their face, were defamatory. 4)The mother enjoyed qualified privilege prima facie because parental duty is so compelling. Two reports containing untrue and degrading allegations were in themselves intrinsic evidence of malice. The long history of the mother's attempts to discredit the plaintiffs was extrinsic evidence of impure motive or malice. The taping of the phone calls was considered to be just another trick to try and advance her cause. 5)The counsellor's reports tendered in court enjoyed absolute privilege but that privilege was lost when she published them to various social workers, the police and the doctors. This is true whether the reports were of an ordinary or expert witness. 6)Both criteria, making a report maliciously and without reasonable grounds, must be satisfied before an action will lie pursuant to s.12 of the Child and Family Services Act. Three reports were slanderous. 7)The conspiracy claim was dismissed. 8)The counsellor had extensive educational background but no clinical training in counselling or interviewing children and 45 sessions were excessive. 9)The counsellor owed a fiduciary duty to the children as their counsellor but owed no corresponding duty to their parents. The negligence claim was dismissed. 10)The long-lasting mental distress of the plaintiffs was clear and they were entitled to aggravated damages. They were not awarded punitive damages as there was no need of further deterrence.

6_1996canlii6791.txt

J. Q.B. A.D. 1997 No. 16 J.C.W. IN THE QUEEN'S BENCH JUDICIAL CENTRE OF WYNYARD BETWEEN: JOSEPH NYCHOLAT and RONALD HALPAPE PLAINTIFFS (DEFENDANTS BY COUNTERCLAIM) and ROYAL BANK OF CANADA DEFENDANT (PLAINTIFF BY COUNTERCLAIM) R. Peet for the plaintiffs N. Fisher for the defendant JUDGMENT LAING J. April 9, 1998 [1] The plaintiffs seek a declaration that they havecomplied with the requirements of section 27(2) of TheSaskatchewan Farm Security Act, S.S. 1988-89, c.S-17.1 (the"Act"), and an order requiring the defendant to sell to themthe lands which are the subject of their exercise of theirright of first refusal under the Act. [2] The defendant resists the requested relief on the basis the plaintiffs did not validly exercise their right of first refusal. Specifically that they did not within the required time frame meet the requirements set out in s. 27(2)(b) of the Act which states: (2) farmer described in subsection (1): (b) where he notifies the mortgagee of his intention to exercise his right and on the expiry of the 15-day period mentioned in clause (a), shall provide within 15 days either: (i) the purchase price; or (ii) an unconditional and unequivocal letter of commitment from recognized financial institution to the mortgagee to finance within reasonable period of time the farmer's purchase of the farm land that is the subject of the offer and for the price stated in the [3] The defendant's objections are two fold: (1) That the legislation (s. 27(2)(b)(ii) requires an unconditional letter of commitment from recognized financial institution to it as the mortgagee, and as no such letter was forthcoming from Farm Credit Corporation to it, the legislation was not complied with. (2) That the loan approval issued by Farm Credit Corporation is not an unconditional and unequivocal commitment to finance the purchase of the farm land. [4] The defendant also counterclaims against theplaintiffs for rent it claims owing from the plaintiffs asover holding tenants. Background Facts [5] The plaintiffs in 1988 surrendered to the defendant considerable amount of farm land in circumstances which qualified them for the statutory right of refusal subsequently enacted in s. 27 of The Farm Land Security Act. On March 24, 1997, the defendant accepted written offer from third party to purchase 14 quarter sections of the plaintiffs' previously surrendered land for price of $629,280.00. This same date the defendant prepared letter which was served on the plaintiffs by April 4, 1998, in which it advised the plaintiffs of the offer and enclosed form to be completed by them in the event they wished to exercise their right of first refusal. The letter dated March 24, 1997 stated in part as follows: If you intend to purchase the property, you must notify the Bank in writing within 15 days of receipt of this letter. To effect this notification, please complete the top portion of the attached sheet and return. If you do not intend to purchase the property, please complete the bottom portion of the attached sheet and return. self addressed envelope is enclosed. The form attached which was completed by the plaintiffs stated as follows: This is notification that intend to purchase the above property outlined in your letter dated March 24, 1997 in the amount of $629,280.00. understand that the Saskatchewan Farm Security Act, provides 15 days from the receipt of your letter to confirm my intention to meet this offer and further 15 days are then granted to: 1. Provide the purchase price in full 2. Provide an unconditional and unequivocal letter of commitment from recognized financial institution to finance within reasonable period of time the purchase price stated above. [6] In letter dated April 17, 1997, the defendant wrote to the solicitor acting for the plaintiffs, and in this letter set out what it considered to be reasonable time for completion of the exercise of right of first refusal. This letter stated in part as follows: As per your request we wish to advise that your clients have until 4:00 PM Monday May 5th to provide our office with either: 1) Payment of the full purchase price amounting to $629,280.00. 2) Provide an unconditional and unequivocal letter of committment [sic] from an recognized financial institution to finance the purchase and committment [sic] to provide our office with the full purchase price by May 30th, 1997. [7] In letter dated April 30, 1997 the solicitor acting for the plaintiffs advised the Royal Bank that financing had been obtained from the Farm Credit Corporation in the amount of $478,720.00. The letter went on to state: The balance of the purchase price in the sum of $150,560.00 is to be delivered to Our Firm on or before 4:00 p.m. Monday May 5, 1997 and we shall be providing to you confirmation of receipt of these funds prior to that time. We write to you now for the purpose of providing to you the enclosed confirmation of Loan Approval and to obtain your confirmation of receipt of the same and your confirmation that the Royal Bank of Canada accepts this documentation as sufficient and satisfactory letter of commitment in respect to financing. [8] In letter dated May 1, 1997 the defendant replied to the foregoing letter and stated in part: we advise that the following would be the appropriate documentation: 1) An Unconditional [sic] and unequivocal Letter of Commitment from Farm Credit Corporation, addressed to our office, to finance the purchase, with the proceeds to be provided by May 30, 1997; with the letter to be provided to our office by 4:00 p.m. May 5, 1997. 2) letter from your office, advising that the balance of the purchase price is held in trust by your office without conditions; this letter to also be provided by 4:00 p.m. May 5, [9] On May 5, 1997 the solicitor acting for the plaintiffs wrote to the defendant and stated in part as follows: Firstly, in respect to financing of the purchase price, FCC has advised Our Firm, as you are likely aware, that FCC does not provide letters as you have requested of unconditional and unequivocal nature. The loan approval, copy of which was earlier provided to you, represents the commitment to the extent that FCC is prepared in this and any other situation to confirm. We suspect that you and/or the Royal Bank of Canada had many dealings in similar situations in which FCC's loan approval letter has been accepted as an unconditional and unequivocal letter of committment [sic] and we rely upon your exercising similar discretion in the current circumstances. In respect to the balance to close, we have received and receipted to Joe Nycholat the sum of $150,560.00 representing the entire balance to close this transaction. We understand from your correspondence of May 1, 1997, that you do not require delivery of these monies until May 30th, 1997 and we look forward to receiving your confirmation of this fact at your first opportunity. [10] In letter dated May 27, 1997 the solicitor acting for the plaintiffs wrote to the defendants solicitors and stated in part as follows: With this Order now granted, (Farm Land Security Board exclusion of home quarter order) we are in position to proceed to register the Mortgage immediately upon our receiving from your office registerable Transfer of the Titles to the lands being purchased by our clients. We await receipt of the necessary Transfer documents at your very first opportunity. [11] The loan approval issued by Farm Credit Corporation is dated April 25th, 1997 and is addressed to the plaintiffs. The form states in part: Farm Credit Corporation (FCC) is pleased to approve loan for you with the following repayment terms: By copy of this Loan Approval we are instructing the following solicitor to proceed with the legal work required to complete the security documentation in connection with this loan: (it identified the plaintiffs solicitor). CONDITIONS OF LOAN: (the only relevant ones to these proceedings) 10. An order under Section 44(12) of The Saskatchewan Farm Security Act excluding this mortgage from the operation of Section 44 of the said Act is required. The NW 10-37-14W2 is homestead. It is assessed at $6,430.00. Our valuation of this parcel is $51,400.00 bareland and $131,000.00 with improvements. 11. Subject to completion of Environmental Assessment (FCC Form 4916) on the security and acceptability thereof by FCC. [12] The environmental assessment certification requested in condition number eleven was completed on May 5, 1997. The Farm land Security Board order excluding the homestead quarter from the operation of s. 44 is dated May 20, 1997. Both of these documents were provided to the Royal Bank's solicitors by May 27, 1997. [13] The defendant declined to accept the FCC loan approval as an unconditional and unequivocal letter of commitment. This law suit is the result. [14] The defendant, Royal Bank of Canada, puts itself forward as mere stakeholder under the legislation, which in sense it is. Its point is that it is required to insist on strict compliance with the requirements of the Act from the plaintiffs, in fairness to the purchaser who has agreed to purchase the land subject to the right of first refusal. This position is accepted, but it does not detract from this Court's obligation to determine if in fact and in law the plaintiffs validly exercised their right of first refusal. Non-compliance with the legislation (1) That the legislation (s. 27(2)(b)(ii) requires an unconditional letter of commitment from recognized financial institution to it as the mortgagee, and as no such letter was forthcoming from Farm Credit Corporation to it, the legislation was not complied with. [15] The short answer to this argument is that thedefendant waived its right to insist on strict compliance withthe legislation by offering a different requirement for theexercise of the right of first refusal in its offer enclosedwith the cover letter dated March 24, 1997. In the offer form, it did not require that it be forwarded letter of commitment directly from recognized financial institution. It simply required that the plaintiffs "provide" such letter. As noted above, the form of offer stated "provide an unconditional and unequivocal letter of commitment from recognized financial institution to finance etc. [16] The plaintiffs accepted the terms offered by the defendant and acted on them. The letter from the defendant's solicitors dated May 1, 1997, was the first time request was made for letter addressed to it from the financial institution, and was an attempt to unilaterally change the initial requirement imposed on the plaintiffs. In the interval, the plaintiffs had committed themselves to the Farm Credit Corporation, who as it turns out was not prepared to provide such letter, and they also had incurred liabilities with Farm Credit Corporation for loan processing fees and solicitor costs. Prior to the May 1, 1997 letter the plaintiffs had complied with the original contractual obligation to "provide" letter of commitment from recognized financial institution. The Farm Credit Corporation loan approval had been faxed to them on April 30, 1997. The Loan Approval was not Unequivocal and Unconditional (2) That the loan approval issued by Farm Credit Corporation is not an unconditional and unequivocal commitment to finance the purchase of the farm land. [17] To paraphrase Barclay J. in Bart et al. v. Phoenix Farms Ltd. (1996), 1996 CanLII 6678 (SK QB), 149 Sask. R. 48 (Q.B.), the right of first refusal sections contained in the Act are there for the benefit of those farmers who through circumstance were required to surrender their farm land to financial institution because of an inability at the time to pay the ongoing mortgage commitments. The Act provides that such farmers are thereafter entitled to lease the land back from the financial institution, and the Act then goes on to provide right of first refusal to such farmer in the event the financial institution decides to sell the land. The rights of first refusal provisions contained in the Act are part of an overall objective to restore the farmer to his or her prior position as owner of the land in the event such person has the financial means to repurchase the land. [18] The first point to observe about the wording of s.27(2)(b)(ii) of the Act, and the wording used by the defendantin its offer of first refusal is that both refer to a letterof commitment to finance; - not a letter of credit bindingthe financial institution to advance money in any event. Thislatter document would be beyond the means of most farmers whohad recently experienced difficult financial circumstances,for the simple reason that banks do not issue letters ofcredit unless they are already secured or satisfied that theperson on whose behalf the letter is to be issued is good forthe money on an unsecured basis. [19] The second point worth observing is that in Saskatchewan farm land context, the commitment to finance referred to in the Act means mortgage financing for the vast majority of persons who would be seeking to exercise right of first refusal. To interpret the letter of commitmentreferred to in the Act in a manner that would exclude mortgagefinancing, would eliminate the ability of most farmers toexercise the right of first refusal. [20] It is against the foregoing background that the phrase "unconditional and unequivocal letter of commitment" is to be interpreted. [21] Mortgage financing is always subject to terms which for the most part are routine and well understood. The terms of mortgage financing will always require certain things be performed before money will be advanced. Usual terms can include that the mortgage shall be first charge, surveyors certificate, homestead waivers, etc. Neither the legislation, nor the defendant's offer to the plaintiffs required unconditional terms of financing. Rather what both required is an unconditional commitment to finance. [22] There is difference between the terms of commitment, and the terms of the financing which may result from such commitment. What the Act requires is that the commitment not be subject to terms. In other words there are no conditions precedent attached to the commitment that would make the commitment conditional on some particular event or requirement. [23] The loan approval issued by Farm Credit Corporation was an unconditional and unequivocal commitment to lend the plaintiffs mortgage financing in the total amount of $480,000.00, $478,720.00 of which was to be disbursed to the Royal Bank of Canada for purchase of the subject land. The loan approval form states: Farm Credit Corporation (FCC) is pleased to approve loan for you with the following repayment terms: By copy of this Loan Approval we are instructing the following solicitor to proceed with the legal work required to complete the security documentation in connection with this loan: PURPOSES OF LOAN 2. Royal Bank of Canada.. To purchase land...$478,720.00. There was nothing conditional or equivocal about the foregoing commitment. [24] The Farm Credit Corporation loans officer who approved the plaintiffs' loan testified at the trial. He indicated that he had been involved in somewhere between 10 and 20 financings by Farm Credit Corporation on behalf of persons exercising right of first refusal under the Act. He stated Farm Credit Corporation's policy was to never issue letter with respect to loan approval as was requested by the defendant in this case, as its issued loan approval form specified the nature of the commitment it was making. He stated that on the 10-20 previous applications he had been involved with, the funds had always been drawn down which indicated to him that Farm Credit's loan approval form had been accepted as compliance by the mortgagee in each case. This evidence is mentioned simply to indicate the interpretation of the legislation offered in the foregoing has been accepted by any number of mortgagees in the province. [25] It is appreciated the foregoing interpretation is at odds with the obiter dicta of Dielschneider J. in Olsen v. Farm Credit Corp., [1991] S.J. No. 210 (Q.L.), Sask. Q.B. No. 618/90, J.C. Prince Albert. However, Dielschneider J.'s remarks were made with respect to motion to dismiss statement of claim as being false, frivolous and vexatious, and he did not have the benefit of full argument on the point. As result, do not consider his remarks binding on me. Adequacy of the Notice Received by the Plaintiffs [26] The plaintiffs took issue with the notice they received from the defendant in its letter of March 24, 1997, and submit this notice does not contain the terms of the offer the defendant received from the third party, but simply advises of the price, in contravention of s. 27(1) of the Act. As have decided the plaintiffs are entitled to relief in this matter, will not address the arguments advanced with respect to this issue. Relief [27] The plaintiffs are entitled to the following relief: (1) A declaration they have complied with therequirements of s. 27 of The Farm Land SecurityAct in exercising their right of first refusalwith respect to the subject land. (2) An order that the defendant forthwith transferto the plaintiffs the subject land for theprice of $629,280.00, which price is payable tothe defendant by the plaintiffs on the usualtrust conditions. (3) The defendants counterclaim is dismissed. (4) Costs of the action. [28] Judgment accordingly.

The plaintiffs sought a declaration that they had complied with the requirements of s27 of the Saskatchewan Farm Security Act and an order requiring the defendant to sell them the lands which were subject to their right of first refusal under the Act. The defendant objected on the basis the plaintiff did not meet the time frame requirements set out in s27(2)(b) as an unconditional and unequivocal letter of committment to finance the purchase had not been issued by the Farm Credit Corporation. The defendant counterclaimed for rent owing by the plaintiffs as overholding tenants. HELD: A declaration issued that the plaintiffs had complied with s27 of the Farm Security Act in exercising their right of first refusal and the defendant was to forthwith transfer the land to the plaintiffs for $629,280 on the usual trust conditions. The defendants' counterclaim was dismissed. 1)The defendant waived its right to insist on strict compliance with the legislation. Prior to the May letter the plaintiffs had complied with the original obligation to provide a letter of committment from a recognized financial institution. The request for a letter addressed to it from a financial institution was first made in May 1997 and was an attempt to unilaterally change the initial requirement imposed on the plaintiffs. 2)Both the wording of s27(2)(b)(ii) and the wording used by the defendant in its offer of first refusal refer to a letter of committment to finance. A letter of credit binding the financial institution to advance the money in any event would be beyond the means of most farmers who had recently experienced difficult financial circumstances. To interpret the letter of committment referred to in the Act in a manner that would exclude mortgage financing would eliminate the ability of most farmers to exercise the right of first refusal. There were no conditions precedent attached to the committment. 3)As the plaintiffs were entitled to relief the arguments concerning adequacy of notice from the defendant was not addressed. 4)The plaintiffs were awarded costs.

c_1998canlii13762.txt

SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: Delorey v. Callahan, 2009 NSSC 387 Date: 20091214 Docket: 1201-063631 Registry: Halifax Between: Allen Wilfred Delorey v. Jodie Colleen Callahan Respondent LIBRARY HEADING Judge: The Honourable Justice R. James Williams Heard: November 2, 2009 in Halifax, Nova Scotia Subject: Child of marriage within the meaning of the Divorce Act definition Summary: Short 10 month marriage following common law union. Child not found to be a child of the marriage. Issue: see above Result: see above. 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 (FAMILY DIVISION) Citation: Delorey v. Callahan, 2009 NSSC 387 Date: 20091214 Docket: 1201-063631 Registry: Halifax Between: Allen Wilfred Delorey v. Jodie Colleen Callahan Respondent Judge: The Honourable Justice R. James Williams Heard: November 2, 2009, in Halifax, Nova Scotia Counsel: B. Lynn Reierson, Q.C., for the Applicant Sarah Harris, for the Respondent By the Court: [1] This is divorce proceeding between Jodie Colleen Callahan and Allan Wilfred Delorey. The parties began cohabitating in 2001. The parties married May 1, 2007 and separated less than one year later, on March 12, 2008. [2] They have child, Ella, born April 3, 2004. The parenting and support issues concerning Ella have been resolved. [3] Tristen Joseph Dwaine Callahan (b. July 31, 1996) is the biological child of Ms. Callahan and Trevor Hanna. [4] The issue for the Court at this time is whether Tristen is a "child of the marriage" (of Ms. Callahan and Mr. Delorey) as defined by the Divorce Act (and, if so, what his obligation to pay child support should be). Ms. Callahan asserts that Tristen is “child of the marriage” and seeks child support for him from Mr. Delorey. [5] Section 2(2)(b) of the Divorce Act defines "a child of the marriage" as: ".... child of two spouses or former spouses includes; ... (b) any child of whom one is the parent and for whom the other stands in the place of parent" [6] In Chartier v. Chartier (1999) Carswell Man 25 (SCC), the Supreme Court of Canada commented on the issue, "What then is the proper test for determining whether person stands in the place of parent within the meaning of the Divorce Act?... Whether person stands in the place of parent must take into account all factors relevant to that determination, viewed objectively... (at pp. 14, 15). What are "all the relevant factors"? [7] In Chartier the Supreme Court of Canada suggested they included: 1. The perspective of the child; 2. The nature of the relationship; 3. Intention and "the Court must also infer intention from actions, and take into consideration that even expressed intentions may sometimes change" 4. Whether the child participates with extended family in the same way as would biological child. 5. Whether person provides for the child financially. 6. Whether person disciplines the child. 7. Whether the person represents to the child, family, the world that he/she is responsible as parent to the child. 8. The nature or existence of the child's relationship with the biological parent. 9. The time to determine whether someone stands in the place of parent is when the family is functioning as unit. 10. Intentions inferred from actions. [8] Justice Campbell of this Court has, in Cook v. Cook (2000) Carswell UNS 20 zt pp. 9‑12) commented on these issues: .. It is clear from the Chartier decision that the parental status is acquired through the actions of the step‑parent and from intentions including those which are inferred from actions. It follows necessarily that there would be actions and intentions which would negate finding of parental status. This raises the question as to how step‑parent must behave in order to avoid the inference being drawn and the finding being made. In marriages or relationships involving children of previous relationship, the adults and children will necessarily show signs of family life together... .. Attention must be paid to the existence of modern day blended families and the realities associated with how the parties would want to behave operating, of course, from the assumption that the relationship will survive. There will necessarily be actions taken on by the step‑parent while the children are in that household which may have previously been done by the natural parent. He or she may literally sit at the same chair at the new family's dinner table. division of labour will unfold and the step‑parent may take over responsibilities for which he or she feels particularly skilled, some of which may directly involve the children. The adults may share their income or expenses in some fashion that directly or indirectly benefits the children. Especially when the children have an active participation with their other natural parent, the step‑parent may be conscious of the undesirability of replacing the natural mother in the lives of the children. However, the fact that she or he is the spouse of the children's parent will cause their household to look like family and to appear to the uninformed observer to be first family. Affection between the children and the step‑parent can be quite natural and automatic. Should she or he be burdened with the obligation for long term child support after having so involved herself or himself in the children's lives in pursuit of new and happy relationship? The answer will often be in the affirmative. However, in my opinion, the threshold for parental status finding must be pegged at sufficiently high point that it avoids the imposition of obligations and the acquisition of access and custody rights except where the step‑parent can be clearly shown to have assumed the role of the natural parent and in substantial substitution for the natural parent's role... In my opinion, it is much easier to meet the test for parental status when the natural parent does not take any, or at least any significant, part in the children's lives. The operative words in the Divorce Act are "stand in the place of parent". In Chartier, supra, the Supreme Court of Canada at page 548 adopts the rules of statutory interpretation given by Driedger in Construction of Statutes (2d ED 1983) at page 87: "Today there is only one principle or approach, namely, the words of an Act are to read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act and the intention of Parliament." In their grammatical sense, the words "in the place of" mean "in substitution for" and not "in addition to". In my opinion, it is not the object of the Act or the intention of Parliament that those words were intended to be used to maximize the number of persons paying support for or exercising access to children of broken marriages. Parliament intended that the fundamental responsibility of child of separated parents would be shared by their parents and that such rights and duties should be extended in appropriate cases to those persons (usually step‑parents) who have intentionally acted or can be inferred to have acted so as to substantially replace the natural parent's role... Bastarache, J. stated in Chartier at page 552: "Spouses are entitled to divorce each other, but not the children who were part of the marriage." The converse is also true: decision by the adults to marry each other is not an offer by the one to adopt the children of the other. The list of factors giving rise to parental status finding enunciated by the Supreme Court in Chartier, supra was stated not to be exhaustive. It did not refer to the duration of the subject relationship. However, most of the factors listed would evolve over time and therefore it is implied based on common‑sense, that parental status is earned over reasonable passage of time. Even an expressed intention to assume responsibility would not be sufficient in some cases of very short marriages especially those involving an active natural parent. Admittedly, the Chartier marriage was very short but the actions of the step‑parent in adopting (not in the legal sense) the child as his own combined with the complete absence of the natural father and the decision to cause the child to believe that the step‑parent was the natural parent... It makes sense that subject to obvious exceptions, the propensity to find parental status should be directly proportional to the length of the marriage and inversely proportional to the involvement of the natural parent... Background Evidence [9] Ms. Callahan’s evidence (that Mr. Delorey is parent to Tristen within the meaning of the Divorce Act) included assertions: 1. That Mr. Delorey "acted as father" to Tristen since Tristen was about years old, ie. prior to Ms. Callahan and Mr. Delorey's common law relationship; 2. Tristen's biological father "became involved" in Tristen's life in approximately February 2007, before the marriage to Mr. Delorey (her affidavit of February 11, 2009); 3. That Tristen did call Allen (Delorey) "Allen" and not Dad, but as the years went on Tristen referred to Allen amongst his friends, neighbors and other family as "Dad"... Tristen and Allen formed father‑son relationship (clause Affidavit of May 22, 2009); 4. Allen was involved in raising Tristen including: school, homework extracurricular activities parent‑teacher nights visits to pediatrician emergency contact at school 5. Teachers knew Mr. Delorey as Tristen's "Dad". 6. Mr. Delorey said Tristen would always be his son on occasion. 7. "Tristen first met his biological father, Trevor Hanna, for he first time at parade in 2006. There was no attempt to initiate ongoing contact at this time. After while, contact between Tristen and Trevor became topic that Allen and as parents discussed together. In late 2006, early 2007, Allen and decided that Tristen should have friendly relationship with Trevor. It was made clear to Trevor that Allen was Tristen's parent. Trevor said he would respect that. To date Trevor Hanna still has no parental decision‑making power when it comes to Tristen." (Clause affidavit of May 22, 2009). (Ms. Callahan’s oral evidence contradicted, to some degree, the assertion that Mr. Hanna’s reinvolvement was “joint decision” of she and Mr. Hanna) 8. (In her oral evidence) that: when she and Trevor Hanna broke up there was an armed stand‑off with police. The evidence suggests Mr. Hanna had weapon and was later jailed. she and Mr. Delorey discussed adoption and/or name change re Tristen but this was not pursued. when Mr. Hanna wanted to have contact with Tristen, Mr. Delorey was against it. Mr. Hanna came back into Tristen's life in late 2006. she has not asked Mr. Hanna for child support Mr. Delorey disciplined Tristen. she is in new relationship with Mr. Rechter (sp) [10] Trevor Hanna testified. He indicated that: 1. he came back to Nova Scotia (from Alberta) in 2007; 2. he loves Tristen; 3. he has not paid support for Tristen, though he indicated he provided money "when can"; 4. he has never been asked for support; 5. Mr. Delorey did not deal with him re his contact with Tristen; 6. he attended some extra‑curricular activities of Tristen, but played secondary role to Mr. Delorey; 7. Mr. Delorey's parents had relationship with Tristen. [11] Mr. Delorey's evidence indicated that: 1. Tristen did not call me "Dad", he called me "Allen". conclude Tristen did call him “Dad” on occasion. 2. Tristen had relationship with Mr. Hanna's family from 2005 on, including overnights. Tristen had contact with Mr. Hanna through them. 3. He played no role in Mr. Hanna's contact with Tristen; that he said he did not want Mr. Hanna around the house or Ms. Callahan (presumably), at least in part, due to the "armed stand‑off" incident. He said the question of Mr. Hanna's contact with Tristen was Ms. Callahan's "call". accept his evidence on this issue. 4. The evidence indicated he helped with school, wrote notes, drove to doctors, occasionally disciplined Tristen did many of the day to day things person in parenting role within household would do. In October, 2007 he signed school note indicating he was proud to call Tristen "my son". 5. That he had as little to do with Mr. Hanna as possible. 6. That talk of his adopting Tristen caused conflict and was abandoned. 7. Tristen had relationship with his Mr. Delorey’s parents. [12] The evidence of both parties is that since their separation Tristen's contact with Mr. Delorey has ceased and suggests that his contact with Mr. Hanna increased. Conclusions [13] Tristen is the biological son of Ms. Callahan and Mr. Hanna. He was born July 31, 1996. Mr. Hanna and Ms. Callahan dated off and on until breaking up in 1998. There was an armed stand‑off when they broke up. Mr. Hanna went, it appears, to prison, then out west, and for time had little involvement in Tristen's life. It is unclear what degree of ongoing contact Tristen had with Mr. Hanna through Mr. Hanna's parents. It appears there was some contact at least from 2005 forward. [14] Mr. Delorey and Ms. Callahan lived common law from 2001 until May 1, 2007 when they married. Tristen lived with them. Tristen visited his paternal grandparents and also developed relationship with Mr. Delorey's parents. Mr. Delorey acted in parenting role. He supported Ms. Callahan, Tristen (and Ella) financially. He had no legal duty to support Tristen, and no possible legal duty to do so. (prior to his marriage to Ms. Callahan as the Maintenance and Custody Act imposes no such possible responsibility) Tristen would have seen Mr. Delorey as parent in late 2006. [15] Prior to Ms. Callahan and Mr. Delorey's marriage there was decision made by, or primarily by, Ms. Callahan to allow Mr. Hanna back into Tristen's life. This was late 2006 or early 2007. conclude that Mr. Delorey did not support this decision but left the decision to Ms. Callahan. [16] Ms. Callahan and Mr. Delorey were together, as husband and wife, for some 10 months. It was by any measure very short marriage. [17] Mr. Delorey saw Tristen briefly after the separation, he says Tristen then rejected him, Ms. Callahan would say Mr. Delorey didn't try enough. [18] Neither an adoption nor name change of Tristen by Mr. Delorey was pursued during the marriage, though it seems it was discussed early in the common-law relationship of Ms. Callahan and Mr. Delorey. [19] The decision to allow Mr. Hanna to become reinvolved with Tristen before or near the time of Mr. Delorey and Ms. Callahan’s marriage, and the apparent abandonment of Ms. Callahan and Mr. Delorey’s earlier discussion of Tristen being adopted by Mr. Delorey are, conclude, inconsistent with conclusion that Mr. Delorey stood in the place of parent, Mr. Hanna at the time of the parties’ separation. Tristen’s relationship with his natural father (Mr. Hanna) was growing, not diminishing, during the months of the Delorey-Callahan marriage. [20] conclude that the decision to allow Mr. Hanna to have contact with Tristen was Ms. Callahan’s. am uncertain why she made this decision. conclude that Mr. Delorey did not support it, felt Mr. Hanna offered little to Tristen and was potential danger to Ms. Callahan. This was an important decision - Mr. Delorey did not “stand in the place of a parent” when this decision was made. He stood, or was stood, aside. [21] Tristen had relationship with both Mr. Hanna’s and Mr. Delorey’s extended family at the time of separation. [22] Did Mr. Delorey stand "in the place of parent" at the time of the parties separation? [23] Mr. Delorey's time in parenting role with Tristen was relatively lengthy from Tristen's point of view. That parenting role was diminished before and during the marriage by Ms. Callahan\'s decision to allow Mr. Hanna back into Tristen\'s life. Mr. Hanna re‑established his contact with Tristen before and during the marriage. Mr. Hanna’s involvement with Tristen increased during the Delorey-Callahan marriage. [24] I agree with the view expressed by Justice Campbell of this Court - in Cook - that the threshold for a finding of parental status is high and reserved for these cases where a step-parent can be clearly shown to have assumed the role of the natural parent in substantial substitution of the role of a natural parent. [25] have considered the provisions of the Divorce Act, the nature length of Mr. Delorey's relationship with Ms. Callahan and Tristen, Tristen’s perspective on these relationships, the length of the marriage, Mr. Hanna's involvement with Tristen, that of his and Mr. Delorey's extended family and the other factors referred to in Chartier v. Chartier and Cook v. Cook. I conclude that Mr. Delorey was generous and concerned in his support and caring for and of Tristen ‑ but that he did so at the time of his separation from Ms. Callahan, as a person in addition to, not in the place of, a parent. [26] I conclude that Tristen is not a child of the marriage of Ms. Callahan and Mr. Delorey. [27] conclude that this is not an appropriate case for an award of costs. J.S.C. (F.D.) Halifax, Nova Scotia

The divorcing parties disagreed about whether the wife's son from a previous relationship (now 13) was a 'child of the marriage.' While they lived together for seven years and had one child together, they were married for less than a year. The wife alleged the husband had stood in the place of a parent to the child. She claimed this was evidenced by the fact that: he started acting like a dad before the parties lived together (when the child was two); he was involved in things like medical appointments and school activities; the child's biological father only recently became involved; and they had discussed adoption early in the relationship. The evidence showed the decision to allow the child's biological father to assume an increasing role in his life was made solely by the wife. The child no longer had contact with the husband. The child is not a 'child of the marriage.' The husband did not stand in the place of a parent to him. He was a big part of the child's life but his role was mostly incidental to the relationship with the wife and a normal part of living with a child. The marriage was short and the father's parenting role was diminished before the marriage (by the mother's choice to allow the biological father back into the child's life, and the parties' failure to pursue the idea of adoption that was raised early on). Applying the Supreme Court's decision in Cook (2000), the threshold for finding parental status is high and reserved for cases where a person can clearly be shown to have assumed a parental role in substantial substitution for the biological parent. Such is not the case here.

6_2009nssc387.txt

QUEEN’S BENCH FOR SASKATCHEWAN Date: 2010 04 15 Citation: 2010 SKQB 145 Docket: F.L.D. No. 19 of 2008 Judicial Centre: Melfort, Family Law Division BETWEEN: LAWRENCE KOTT and MELODIE TIEGEN Counsel: T. Parlee for the petitioner E. Connick for the respondent JUDGMENT M-E. WRIGHT J. April 15, 2010 1) After enduring what can best be described as tumultuous relationship spanning some five and one-half years, the parties permanently separated. They never married. Now, Lawrence is seeking access to Melodie’s daughter from an earlier relationship. That child is Trista, who is 11 years old. 2) Lawrence and Melodie met in October, 2000 at the bar where she was working. They started dating that night. At the time Melodie was still living with Trista’s father Greg. She left him in January, 2001, living temporarily with friends before moving to her own apartment. Several months later, in the spring of 2001, she rented house in Codette and moved there with Trista. Lawrence moved at the same time, bringing with him his two daughters, who were then 11 and 13 years of age. Trista was just over two years old. At the time their relationship began, Lawrence was running his own dry walling business and Melodie was working at several part time jobs that included evening and weekend shifts. When working days, Melodie says that Trista was at day care. At other times, Lawrence or his daughters would watch over her. 3) Lawrence describes having developed somewhat idyllic relationship with Trista. He met her within week of starting to date Melodie. Once they attempted to blend their two families, he says they did “everything” together. They were involved in outdoor activities and playtime, and when Melodie was working evenings, Lawrence would read to Trista and put her to bed. When Trista started school, Lawrence said he was the one who often stayed home with her when she was ill, and the person that the school looked to when she became sick. After the nature of his employment changed several years into the relationship, Lawrence would sometimes take Trista with him when he was making calls. 4) People who knew both Lawrence and Melodie while they were living together spoke positively about the bond that developed between Lawrence and Trista. They testified that the two of them seemed like “father and daughter”. Lawrence treated Trista as his own child and she, in turn, called him “dad”. On the other hand, however, Lawrence conceded that his own two daughters were not happy when Trista started to refer to him as her father, which he says started shortly after he and Melodie started dating. 5) Notwithstanding what Lawrence described as near perfect relationship with Trista, it was clear that the situation on the home front generally was anything but idyllic. Lawrence’s daughters, and particularly his eldest, never got along with Melodie. Arguments were not uncommon. Lawrence’s daughters swore at Melodie and Melodie swore back. The name calling on both sides included references to “slut” and “whore”. Melodie resorted, on at least one occasion to slapping one of the children on the face, and on another occasion to telling both girls that they had to move out. 6) According to Melodie, the disrespect that Lawrence’s daughters showed to her was also shown to Trista. She says they were verbally mean to Trista and at times handled her roughly. They called her names, threatened her and would give her “the finger”. When Melodie intervened, the girls would tell their father who, according to Melodie, did nothing to help the situation. Lawrence confirmed that he was always in the middle of Melodie and his daughters and ended up “just staying out of it”. Lawrence, however, denied that his daughters in any way treated Trista badly, although she was frequently present during the altercations between them and Melodie. 7) The harmony between Lawrence and Melodie was also less than perfect. Their relatively short-term relationship was peppered with separations, apparently too frequent for either to quantify with any measure of certainty. Suffice it to say that cohabitation was interrupted between four and seven times before the final separation. Lawrence admitted that he and Melodie did not have “very good” relationship. The bickering was constant and there always seemed to be problems. The RCMP were frequently called to the home. Again, much of this occurred in the presence of Trista. 8) Melodie described the relationship in even less flattering terms than Lawrence. She alleged that he was an abusive partner verbally, physically and sexually. Her allegations regarding verbal abuse were corroborated by many of the same witnesses who spoke so glowingly about Lawrence’s interactions with Trista. While none of them reported witnessing any physical altercations between the parties, all those who socialized with them could recall verbal altercations. It would seem that the verbal abuse was mutual, and it was apparently not uncommon for them, even in social situations, to raise their voices with one another and call each other names. At times, Trista was present. 9) While these witnesses saw no physical abuse, Lawrence’s criminal record acquired during the time he lived with Melodie speaks for itself. In 2003, he was convicted of assaulting her and threatening her with weapon. That weapon was knife. Lawrence says he has no recollection of the incident he “blacked out”. He does not know if Trista was present, and Melodie did not say. Lawrence was sentenced to 18 months imprisonment, to be served in the community. The conditions attached to the community based sentence did not prohibit him from having contact with Melodie since they resumed living together after he was released from remand. 10) Also during their relationship, Lawrence was accused of threatening Greg, Trista’s father, and convicted of another criminal offence. Little detail was provided but Lawrence did say that Melodie was drunk one night and while he was carrying her from the bar to the vehicle “guy” came out of the hotel. He says they ended up in “tussle”. 11) There was yet another factor adding to the disharmony of the situation. Melodie also has two older daughters who at the time she and Lawrence started cohabiting were in their pre-teenage years. Both girls live in British Columbia with their father, member of the Canadian Armed Forces. Their periodic visits to Saskatchewan to visit with their mother resulted in chaos according to Lawrence. All the older girls fought and argued. 12) Depending on who is to be believed, Lawrence and Melodie parted ways as couple in either October, 2006 or August, 2007. Lawrence acknowledges the separation in 2006, when Melodie moved to different accommodation, but says they reconciled in February of the following year. Melodie says that she let Lawrence stay at her home after the October separation, but not starting until April, only because he had to leave his rented premises and had nowhere else to go. According to her, it was not reconciliation. She told Lawrence that he needed to be gone by June since she was concerned that the father of her older daughters would not let them visit in the summer if Lawrence was present. Melodie says that Lawrence left during the third week of June, staying first with his brother and later at hotel. In the interim, however, Lawrence did remain involved with Trista and provided child care when Melodie was working night shifts. It was not explicitly stated, but it would appear that by then Lawrence’s daughters were no longer part of the family dynamic. 13) Lawrence’s recollection of the events leading up to August, 2007 is quite different. He says he left Melodie’s residence in the summer of 2007 only because the house was small and there was insufficient room for everyone once her daughters arrived from British Columbia. He did not consider that he was separating from Melodie. Nonetheless, that summer he reconnected with Brenda, the mother of his two daughters. He and Brenda separated in 1996 or 1997, but had never divorced. Apparently the two of them discussed his relationship with Melodie and then decided to “get back together’. This notwithstanding that Lawrence had been previously convicted and incarcerated for sexually assaulting Brenda. Lawrence says that he planned on telling Melodie that he was permanently leaving her for Brenda, however, as events unfolded, she beat him to the punch by text message. 14) Melodie agreed that she did text message Lawrence from Saskatoon where she had taken her older daughters to catch their flight back to British Columbia. Immediately prior to her departure, she says she had denied Lawrence’s request for keys to her home, telling him that he did not live there. However, while in Saskatoon, she received message from friend saying that Lawrence was at her house and was doing yard work. She sent him message telling him to get out, which he apparently did. 15) Since that day in August, 2007, contact between Melodie and Lawrence has been limited. Even more limited has been the contact between Lawrence and Trista. He says that he tried unsuccessfully to telephone her and has sent her cards and letters. Some of the correspondence has been returned to him. Others, he was told, were torn up. 16) On only two occasions has Lawrence actually seen Trista. Both sightings were by chance. Shortly after he and Melodie separated, he saw Trista on the street. She darted away from him and went into retail establishment. On the second occasion, Trista was on her bike. Again Trista ran from Lawrence, but he says not before waving at him. 17) Lawrence commenced this proceeding on April 2, 2008, some six months after he says he separated from Melodie and reunited with Brenda. Interim applications to have him designated as person of “sufficient interest” were dismissed. The parties were unable to resolve the issue at pre-trial settlement conference. The matter was accordingly set for trial. II. The present circumstance of the parties and Trista (a) Lawrence 18) Lawrence and Brenda did in fact reconcile in 2007. They now live together north of Choiceland in five-bedroom home. With them are Brenda’s two younger children, son and daughter, aged seven and nine years, respectively. These two children were born to Brenda while she was separated from Lawrence and living with another man. The father of these two children lives in North Battleford and visits his children from time to time. Brenda is retired, raises some cattle, and helps Lawrence with his plumbing business. (b) Melodie 19) It would appear that Melodie has as well quickly moved on with her life. She is now engaged to Josh. They have been living together since October, 2007, the month after they started dating. Josh is employed as welder, has never been married, and has no children. He has, however, according to both he and Melodie, become father to Trista. Josh met Trista as soon as he began dating Melodie, and says that she has become big part of his life. She calls him dad. 20) At the time of trial, Melodie was enrolled as full-time student at Cumberland College. She has aspirations of entering the area of either practical or psychiatric nursing. 21) According to Melodie, Trista was upset following the separation. She said that Trista was frightened that she would be ridiculed at school because “normal” families have moms and dads. Melodie did not clarify whether Trista was experiencing these problems starting in August, 2007, when Lawrence says the separation occurred, or earlier when Melodie says it occurred. Despite her initial problems, however, Trista has recovered and is doing well. Melodie describes her as beautiful, funny and smart child who is enjoying school and her extracurricular activities. 22) The principal of Trista’s school testified. Ms. Gabriel taught Trista in Grade and again in Grade V. As the administrator of the school, she is also the first contact for teachers or parents who may need additional supports for particular student. 23) Ms. Gabriel described Trista as bubbly girl with big smile. She is caring, compassionate, helpful and loves to tell stories. Trista is involved in many school activities, volunteering and drama she is student who wants to be part of everything. At the same time, Trista displays insecurity and self-esteem issues which translate into social and friendship issues as well. According to Ms. Gabriel, the school is working with Trista in these areas. 24) Academically, Trista is an average student who has struggled in school. In the past, academic supports have been put in place for her. Trista must work hard, which she does, and she has shown much progress in the year preceding trial. Ms. Gabriel did note that in the fall of 2007, Trista’s classroom teacher raised concern that Trista was unable to focus or concentrate in class. referral was made to the school counsellor who worked with Trista throughout the 2007/2008 academic year. Trista progressed well, and the counselling was considered no longer necessary in the next academic year. 25) Trista lives with her mother and Josh. Her father Greg has an order entitling him to access, although according to Melodie, he has had little involvement recently. Greg is now the father of two more young children. There was no evidence at trial as to whether or not Trista has had the opportunity of meeting her two half -siblings. III. The legislation 26) This proceeding is governed by The Children’s Law Act, 1997, S.S. 1997, c. C-8.2(the Act). The relevant provisions are: 2(1) In this Act: ... “father” means the father of child and includes: (a) man declared to be the father pursuant to section 43 or 44; and (b) man recognized as the father pursuant to section 50, 51, 55 or 56; “mother” means the mother of child and includes: (a) woman declared to be the mother pursuant to section 43 or 44; and (b) woman recognized as the mother pursuant to section 50, 51, 55 or 56; “parent” means: (a) the father or mother of child, whether born within or outside marriage; (b) the father or mother of child by adoption; 6(1) Notwithstanding sections to 5, on the application of parent or other person having, in the opinion of the court, sufficient interest, the court may, by order: (a) grant custody of or access to child to one or more persons; (b) determine any aspect of the incidents of the right to custody or access; and (c) make any additional order that the court considers necessary and proper in the circumstances. (5) When making an order pursuant to subsection (1), the court shall: (a) give effect to the principle that child should have as much contact with each parent as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person seeking custody to facilitate that contact, and 9(1) In making, varying or rescinding an order for access to child, the court shall: (a) have regard only for the best interests of the child and for that purpose shall take into account: (i) the quality of the relationship that the child has with the person who is seeking access; (ii) the personality, character and emotional needs of the child; (iii) the capacity of the person who is seeking access to care for the child during the times that the child is in his or her care; and (iv) the wishes of the child, to the extent that the court considers appropriate, having regard to the age and maturity of the child; and (b) not take into consideration the past conduct of any person unless the conduct is relevant to the ability of that person to care for the child during the times that the child is in his or her care. IV. Analysis 27) This proceeding and the arguments raised by Lawrence and Melodie raise several issues. The first that must be considered is the position taken by Lawrence that because he is a “step-parent” to Trista, he does not need to establish that he falls within the category of persons having a “sufficient interest” to bring this application. In his pleadings, Lawrence asserts that he developed close “child-parent relationship” with Trista while he and her mother lived together and that he stood “in the place of parent” to her. In argument, the terminology used by Lawrence was that he stood “in loco parentis” and as such he had, and has, the same status as biological parent. Flowing from this, according to Lawrence, is the presumption that it is in Trista’s best interests that she have access to him. He says that if the presumption is to be rebutted, the onus lies with Melodie. 28) Melodie disputes Lawrence’s claim that he stood in the place of parent to Trista, and she claims no financial support from him. She further says that Lawrence’s relationship with Trista does not even place him within the class of persons who could be said to have “sufficient interest” to commence this proceeding. That alone, according to Melodie, is enough to cause this action to be dismissed. Melodie points to the nature of the relationship between Lawrence, herself and Trista, and the amount of time that Lawrence allowed to elapse before commencing his petition. Alternatively, if Lawrence is found to be person of sufficient interest, Melodie says that access is not in Trista’s best interests. She characterizes the relationship between her and Lawrence as abusive and is concerned that the hostility that continues to exist between her and Lawrence will have negative impact on Trista. 29) It must initially be noted that the Act does not refer to any of the terms “step-parent”, “person standing in the place of parent”, or “in loco parentis”. There are only two categories of persons recognized by the legislation who may seek an order for custody or access. They are “parent” or another person “having sufficient interest”. Those who fall into the latter category of persons are in the discretion of the Court, but “parent” is restrictively defined in s. 2(1) to include only the mother or father of the child, whether by birth or adoption. This is unlike the provisions of The Family Maintenance Act, 1997, S.S. 1997, c. F-6.2 which provides for more expansive definition of “parent”. There, in s. 2(1), “parent” includes not only the child’s mother or father, but also “a person who has demonstrated settled intention to treat child as child of his or her family...”. Accordingly, since Lawrence is not a parent as defined in the Act, he must demonstrate that he is of a person of sufficient interest to have standing to bring this application. 30) The foregoing conclusion is of little consequence to Lawrence in so far as it relates to his standing to bring this application. The threshold for determining that person has “sufficient interest” under the Act is lower than that for determining that person has “demonstrated settled intention to treat child as his or her own”, or that the person stands “in loco parentis” to the child. While person of sufficient interest may be entitled to seek custody or access to child under the Act, where that person also stands “in loco parentis”, financial responsibilities and obligations may also attach as consequence of the nature of that relationship under the provisions of other legislation. 31) The second question that must then be answered is whether or not, in the circumstances of this case, Lawrence is person of “sufficient interest”. This involves an assessment of the nature of the relationship between Lawrence and Trista. In S.(G.E) v. C.(D.L.), 2006 SKCA 79 (CanLII), 285 Sask. R. 19, non-exhaustive list of factors to be considered was discussed at para. 47: [47] ... In determining whether a non-family applicant is a person with a sufficient interest, the court should consider a variety of factors including, but not necessarily limited to: (a) the extent or degree of the applicant’s involvement in the child’s life, (b) the duration of that involvement, (c) the level of intimacy and the quality of the relationship between the applicant and the child, (d) how the relationship between the applicant and the child was represented to the world, and (e) whether the applicant provided financially for the child.... 32) The Saskatchewan Court of Appeal further said at para. 47 that where there is no family or blood relationship, as was the case there, applicants “... who do not have both significant relationship with the child and demonstrated and settled ongoing commitment to the child” should generally be screened out through the application of s. of the Act. Because of the familial relationship among Lawrence, Melodie and Trista, the expectations of Lawrence are not so onerous. 33) In this case, I am satisfied that Lawrence has demonstrated that he is a person of sufficient interest with respect to Trista. While the date of their separation is in dispute, it was conceded by Melodie that she and Lawrence cohabited for a period of at least five years, albeit with periodic interruptions. The relationship, in one form or another, spanned the years 2000 to 2007, commencing when Trista was barely a toddler. Over those years Lawrence provided care for Trista, participated in activities with her and was involved, from time to time, with her school. The incomes of both Lawrence and Melodie were used to support the family. Trista referred to Lawrence as “dad”, and the community generally viewed them as “father and daughter” and part of a larger family. Apart from paying child support, the involvement of Trista’s biological father was limited and sporadic. 34) Having determined that Lawrence has standing to bring this application, turn to the next stage of the inquiry that being whether or not access should be granted to Lawrence, and if so, to what extent. Here, the overriding consideration is the best interests of Trista, consideration which is to be determined having regard to the factors enumerated in s. of the Act. It is also at this stage of the inquiry that my earlier decision regarding Lawrence’s status in this proceeding is of more consequence to the legal position that he has argued. Even though in other circumstances, and for different purposes such as under The Family Maintenance Act, 1997, supra, Lawrence may be considered to be person who has demonstrated settled intention to treat Trista as his own child, that determination would not elevate him to status greater than that of person of sufficient interest under the Act. It certainly would not place him on the same footing as biological parent or an adoptive parent, vis-à-via access, as he has suggested. As such, there is no presumption that access between he and Trista is in her best interests. That presumption, found in s. 6(5)(a), applies only to parents. In these circumstances, the onus lies with Lawrence to establish that access will be Trista’s best interests. It is not up to Melodie to show otherwise. 35) In this case, I cannot conclude that requiring Trista to visit with Lawrence will be of any benefit to her. Similarly, cannot conclude that Trista will in any way be disadvantaged or suffer if she does not have access to Lawrence. accept as true Lawrence’s testimony that he loves Trista dearly and misses her very much. He wants to spend time with her as much as possible. That, however, is not enough to warrant an order for access in cases such as this. 36) While there was considerable contradictory evidence during the course of this trial, one fact emerged as indisputable. The adults in Trista’s life have put their interests first and have subjected her to inexcusable disharmony and instability. She has been introduced to series of “daddies” while her mother searches for the perfect mate. When living with her mother and Lawrence, Trista experienced home life that was characterized by bickering, fighting, verbal and domestic abuse. The person that she then knew as “dad” was convicted of assaulting and threatening her mother with knife. Separations and disruptions in the family were the norm. The attempt to blend Lawrence’s daughters, Trista’s “step-sisters”, into the family were unsuccessful. There too, Trista was witness to the battles that ensued between them and her mother, and her mother’s mistreatment of them. The arrival for access of Melodie’s older daughters, Trista’s half-sisters, only added to the chaos and mayhem in the home. 37) This being the environment in which Trista lived for several of her formative years, it is somewhat surprising that she is now doing as well in school as was described by Ms. Gabriel. This speaks to Trista’s resilience. It is not surprising, however, that Ms. Gabriel described Trista as displaying issues of insecurity and low self-esteem. Nor is it surprising that in the fall of 2007, Trista’s teacher found it necessary to seek out counselling for her because of her inability to focus or concentrate in the classroom. This coincided with the final departure of Lawrence from Trista’s family dynamic and the introduction by Melodie of Trista’s third “dad”. 38) To date, Trista’s extended family has consisted of her two elder half-siblings whom she sees periodically. While Lawrence was part of the family, she lived with two more “step-sisters”, who it would appear are no longer part of her life. Her biological father, who has had at most sporadic relationship with Trista, has provided her with two more half-siblings, whom she may or may not have met. Trista now lives in household with the third man that her mother has had her refer to as her father. Within this context, Lawrence proposes that Trista have access with him. This would involve an introduction to yet another person his wife, to whom he remained married while living with Trista’s mother, as well as to her two young children, who were conceived while she was separated from Lawrence. The father of these two children is intermittently involved in their lives. Lawrence has previously shown himself to be ineffectual in attempting to harmonize the relationship between the children of two families. None of the evidence suggests that Lawrence will be more successful in harmonizing the complex relationships that will exist among his and Brenda’s two daughters, Brenda’s two children, and Trista. 39) Trista has already had to contend with multiple “fathers” and multiple “siblings”, many of whom have been only temporary or fleeting personalities in her life. The confusion that this has no doubt caused her should not be further compounded by requiring her to make even more adjustments in her understanding of what “family” means. No good can come of that, and cannot conclude that it would be in her best interests to expect it of her. Access to Lawrence is not in the best interests of Trista. V. Conclusion 40) Lawrence’s application for access is dismissed. However, in the circumstances of this cases, there will be no order for costs. J. M-E. Wright

The parties were in a relationship for over 5 years though they never married. The petitioner now seeks access to the respondent's daughter from an earlier relationship. The parties' relationship was tumultuous and included some incidents of domestic violence, which the child may have been exposed to. There are concerns regarding the interactions between the respondent's daughter and the petitioner's own children. The petitioner must establish, firstly, that he has 'sufficient interest' to bring this application, per s. 6(1) of The Children's Law Act, 1997. HELD: The application for access is dismissed. In determining whether a non-family applicant is a person with a sufficient interest, the Court must consider a variety of factors including: the extent or degree of the applicant's involvement in the child's life, the duration of that involvement, the level of intimacy and the quality of the relationship between the applicant and the child, how the relationship between the applicant and the child was represented to the world, and whether the applicant provided financially for the child. The petitioner has demonstrated that he is a person of sufficient interest; the relationship between the parties was not short and, during its lifespan, the petitioner formed a close bond with the child and was involved with her life. The community viewed them generally as father and daughter. However, the Court cannot conclude that requiring the child to visit the petitioner would be of any benefit to her. This child has already had to contend with multiple 'fathers' and multiple 'siblings', many of whom have been only temporary or fleeting personalities in her life. The confusion that this has no doubt caused her should not be further compounded by requiring her to make even more adjustments in her understanding of what 'family' means. Access to the petitioner is not in the best interests of this child.

2010skqb145.txt

Dated: 20010412 2001 SKCA 55 Docket: 205 THE COURT OF APPEAL FOR SASKATCHEWAN Coram: Tallis, Vancise Lane JJ.A. HER MAJESTY THE QUEEN and NELSON TONY KAHNAPACE COUNSEL: Mr. D.M. Brown, Q.C. for the Crown Mr. Reg Watson for the Respondent DISPOSITION: On Appeal From: Provincial Court Appeal Heard: April 12, 2001 Appeal Allowed: April 12, 2001 (orally) Written Reasons: April 19, 2001 Reasons By: The Honourable Mr. Justice Lane In Concurrence: The Honourable Mr. Justice Tallis The Honourable Mr. Justice Vancise LANE J.A. (orally) [1] The Crown seeks leave appeal the sentence imposed on the respondent after a sentencing circle. After pleading guilty to committing the offences of robbery and robbery with threats of violence contrary to s. 348(1)(b) and 334(2) respectively of the Criminal Code, he was sentenced to nine months time served, plus two years less one day conditional, including three months on electronic monitoring, plus two years probation with a ten-year firearms prohibition on each charge to be served concurrently. The respondent committed the offences while on probation. [2] The facts are essentially agreed and are as follows: On March 19, 2000, the respondent, Nelson Kahnapace, and co‑accused, Wayne Moshenko, did break and enter dwelling house in Regina, the residence of 68 year‑old man who lives alone, and committed robbery. The respondent was very intoxicated and did not participate in the beginning of the transaction. The co-accused told him they were going there because the victim had the keys to Moshenko's vehicle. Moshenko had given the victim the keys as security for some money. Once inside, though, the co-accused assaulted the victim, and when the respondent entered, he propped board against door to prevent the victim from escaping. The co-accused threatened to cut off the victim’s fingers and when he went to look for knife the respondent held the victim. The respondent took about $25 in cash from the premises. Apparently, the intruders were looking for money for drugs. [3] On March 20th the pair robbed pharmaceutical drugs from pharmacy in Regina and at the time used threats of violence. It was the co-accused who wielded long bladed knife and threatened the lives of the victim and threatened others in the store not to call the police while the respondent searched for drugs. According to the victim, the respondent yelled out to the co-accused to kill them. However, when someone did call the police neither the respondent nor the co-accused moved to carry out the threat. Although the robbery was extremely inept, and only few pills were taken, the victims were terrified. [4] The respondent emphasized he was on drugs at the time of the offences and the main player was the co-accused. The co-accused received sentence of seven years on the robbery and five years concurrent on the breaking and entering. [5] The respondent is 23 year old aboriginal who has prior record consisting of 42 criminal convictions including eight violent or weapons related offences. He has violated various forms of community release orders including bail and probation orders some 16 times. He has history of drug and alcohol abuse and has not attended treatment in the past. He has grade three education and does not have significant employment history. In pre-sentence report he was considered high risk to reoffend. [6] We must say at the outset the ordering of a sentencing circle was inappropriate in these circumstances given the level of violence, the respondent’s high risk to reoffend, his consistent ignoring of or refusing to follow court orders and the fact a penitentiary term was called for, and we are all of the view leave should be granted and the appeal allowed. The sentence is demonstrably unfit and falls outside the range of sentences previously imposed by this Court. The sentencing judge relied solely on the principle of rehabilitation and essentially ignored the other sentencing principles. The sentence does not reflect the gravity of the offences, the principle of deterrence, the need to denounce such activities, the sentence imposed on the co-accused, and the need to protect the public. [7] The trial judge further erred in first failing to determine whether penitentiary term was appropriate. conviction for either offence could lead to penitentiary term given the respondent’s record and his repeated failure to obey court imposed conditions. [8] This court has often expressed its condemnation of these activities and in particular its condemnation of home invasion robberies and the robberies of highly vulnerable businesses. See: R. v. Stroshein;[Footnote [1]] R. v. Severight; [Footnote [2]] R. v. Daniels; [Footnote [3]] R. v. Sangwais. [Footnote [4]] The public must be protected from this type of criminal behaviour and more severe sentence is called for. The appeal is therefore allowed, the sentence imposed below set aside and a sentence of four years imprisonment from this date on each charge to be served concurrently is hereby imposed. This sentence takes into account the time the respondent served both on remand and on electronic monitoring. [1][2001] S.J. No. 90, Q.L. [2](1996), 1996 CanLII 4934 (SK CA), 137 Sask. R. 306. [3][2001] S.J. No. 82, Q.L. [4](2000), 2000 SKCA 49 (CanLII), 189 Sask. R. 291.

The Crown sought leave to appeal a conditional sentence of 9 months of time served plus 2 years less 1 day, including 3 months on electronic monitoring, and 2 years probation with a 10 year firearm prohibition on each charge to be served concurrently. The sentence was imposed for robbery with threats of violence contrary to s.348(1)(b) and s.334(2) of the Criminal Code which were committed in March 2000 while the accused was on probation. The appellant and co-accused were convicted of breaking and entering a private residence. The accused took $25 from the premises and held the 68 year old victim while the co-accused went to look for a knife after threatening to cut off his fingers. The following day the two accused used threats of violence while robbing a pharmacy and a witness testified the accused yelled to the co-accused to kill the victims. The co-accused who was convicted of assault received 7 years in prison for the robbery concurrent with 5 years for the B & E. The 23 year old aboriginal who had a Grade 3 education had a prior record of 42 criminal convictions including eight violent or weapons related offences. HELD: Leave was granted. The appeal was allowed. The sentence of 4 years in prison on each charge to be served concurrently took into account time served on remand and electronic monitoring. The sentence was demonstrably unfit and fell outside the range of sentences previously imposed. The sentencing judge relied solely on the principle of rehabilitation, essentially ignoring the other sentencing principles including the level of gravity, the principle of deterrence, the need to denounce such acts, the sentence imposed on the co-accused, and the need to protect the public. A sentencing circle was inappropriate given the level of violence, his risk to re-offend, his consistent ignoring or refusal to follow court orders, and the fact that a penitentiary term was called for in such circumstances. He had violated various forms of community release orders including bail and probation 16 times. He had a history of drug and alcohol abuse and had not attended treatment.

8_2001skca55.txt

J. Date: 20010207 Docket: CAC 164689 CAC 164690 NOVA SCOTIA COURT OF APPEAL [Cite as: R. v. MacDonald, 2001 NSCA 26] Cromwell, Hallett and Oland, JJ.A. BETWEEN: LESLIE WILLIAM MacDONALD and HER MAJESTY THE QUEEN BETWEEN: STEWART HILL MacPHERSON and HER MAJESTY THE QUEEN Respondent REASONS FOR JUDGMENT Counsel: Timothy G.J. Daley for the appellants William D. Delaney for the respondent Appeal Heard: January 26, 2001 Judgment Delivered: February 7th, 2001 THE COURT: Leave to appeal is granted and the appeal is allowed per reasons for judgment of Cromwell, J.A.; Hallett and Oland, JJ.A. concurring. CROMWELL, J.A.: [1] The appellants pleaded guilty to fraud over $5000 and were sentenced by MacDougall, J.P.C. They had received additional money on their pay cheques at Trenton Works for overtime they did not work and claimed that they were told by the paymaster not to worry about the irregularity and to give him one-half of the money. This went on between 1996 1999. Mr. MacPherson was overpaid in the amount of $19,156.00 and Mr. MacDonald in the amount of $32,866.00. Each gave half of these amounts to the paymaster. [2] The Crown and defence advanced a joint sentencing recommendation for two (2) years probation and restitution of one-half of the amount of the fraud. The judge was advised that this same recommendation had been made and accepted by another judge in the case of Mr. Fraser, another employee who was part of the same scheme. The rationale for the recommendation of restitution of one-half of the overpayment was that the appellants had only retained for themselves one-half of the total amount of the overpayment because, as noted, they had been required to give the other half to the paymaster. The judge was also advised that Trenton Works was content with this proposal and that the other one-half would be sought in restitution order against the paymaster who was to be before the courts shortly. [3] The judge accepted the joint recommendation for probation but ordered restitution in the full amount of the overpayment. The appellants apply for leave and, if granted, appeal the judge’s decision to order restitution of the full amount rather than one-half of the amount as submitted in the joint recommendation. [4] We would grant leave to appeal and allow the appeal. The Crown concedes that the submissions made to the judge on sentence were the culmination of process of plea negotiation. The Crown also concedes that the appeal should be allowed, very fairly taking the position that it is unwilling to make submissions on appeal which might be interpreted as a repudiation of an agreement which resulted from a process of plea negotiation. While the agreement reached between counsel was, of course, not binding on the judge, the joint recommendation made to him was a fit sentence. In the circumstances, we see no sound reason for departing from it. [5] Leave to appeal is granted, the appeal is allowed and the restitution orders are amended by reducing the amounts ordered to be repaid by one-half. Cromwell, J.A. Concurred in: Hallett, J.A. Oland, J.A.

The appellants pled guilty to theft over $5,000. The Crown and the defence put forward a joint sentencing recommendation of two years probation and restitution of one-half of the amount of the fraud, which was all that the appellants had actually retained. The sentencing judge ordered full restitution. The appellants appealed; the Crown conceded that the appeal should be allowed. Allowing the appeal, that while the agreement reached by the Crown and the appellants was not binding upon the sentencing judge, the joint recommendation was a fit sentence; in the circumstances there was no sound reason for departing from it.

4_2001nsca26.txt

SUPREME COURT OF NOVA SCOTIA Citation: Johansson v. General Motors Canada Ltd., 2011 NSSC 20 Date: 20110121 Docket: Hfx No. 230488 Registry: Halifax Between: Maria Johansson, Steven Johansson and Jody Johansson v. General Motors of Canada Limited, body corporate registered to carry on business in the Province of Nova Scotia Defendant Judge: The Honourable Justice Glen G. McDougall Heard: October 21, 2010, in Halifax, Nova Scotia Counsel: Michelle Awad, Q.C. and Jeff Aucoin, Esq., for the defendant Nicolle Snow, Esq., for the plaintiffs By the Court: [1] The defendant, General Motors of Canada Limited (henceforth “GMCL”), moves for an Order for Summary Judgment on Evidence to dismiss the claims made by two of the plaintiffs, Steven Johansson and Jody Johansson (formerly Jody Robichaud). [2] Steven and Jody Johansson were injured in a single vehicle accident while passengers in a vehicle driven by the other plaintiff, Maria Johansson. The accident occurred on October 25, 1998. [3] Both Steven and Jody Johansson were paid damages for the injuries they sustained. The amount paid to each of the plaintiffs was acknowledged in writing and they each signed a release acknowledging full and final settlement of any claims arising from the accident. The releases were given to The Citadel General Assurance Company (henceforth “Citadel”), George Johansson, the owner of the motor vehicle involved in the accident and the driver, Maria Johansson. The releases are both dated the 14th day of April, 1999. [4] On September 13, 2004 a Statement of Claim was filed on behalf of all three plaintiffs alleging that the motor vehicle accident which occurred on October 25, 1998 was caused by an inherent defect in the design and manufacture of the vehicle being driven by Maria Johansson. [5] The vehicle, 1997 Chevrolet Lumina, was manufactured by GMCL. The plaintiffs now claim damages for the injuries they sustained as a result of the accident which they allege was caused by the careless and negligent actions of GMCL in the design and manufacture of the vehicle involved. [6] GMCL’s motion for summary judgment is against Steven and Jody Johansson only. It does not involve the other plaintiff, Maria Johansson. [7] Is the defendant, GMCL, entitled to summary judgment, dismissing the claims made by the plaintiffs, Steven and Jody Johansson, as result of the releases given to Citadel? [8] Civil Procedure Rule 13.01(1) allows for summary judgment either on pleadings that are clearly unsustainable or on evidence establishing that there is no genuine issue for trial. [9] Rule 13.04 deals specifically with summary judgment motions on evidence. It states: 13.04 (1) judge who is satisfied that evidence, or the lack of evidence, shows that statement of claim or defence fails to raise genuine issue for trial must grant summary judgment. (2) The judge may grant judgment for the plaintiff, dismiss the proceeding, allow claim, dismiss claim, or dismiss defence. (3) On motion for summary judgment on evidence, the pleadings serve only to indicate the laws and facts in issue, and the question of genuine issue for trial depends on the evidence presented. (4) party who wishes to contest the motion must provide evidence in favour of the party’s claim or defence by affidavit filed by the contesting party, affidavit filed by another party, cross-examination, or other means permitted by judge. (5) judge hearing motion for summary judgment on evidence may determine question of law, if the only genuine issue for trial is question of law. (6) The motion may be made after pleadings close. [10] There have been number of cases decided after the implementation of the new rules. The test for summary judgment remains the same as that used under the 1972 Rules. In Guarantee Co. of North America v. Gordon Capital Corp., 1999 CanLII 664 (SCC), [1999] S.C.R. 423 (S.C.C.); Carswell Ont 3171, Iacobucci and Bastarache, J.J., stated the following at para 27: 27 The appropriate test to be applied on motion for summary judgment is satisfied when the applicant has shown that there is no genuine issue of material fact requiring trial, and therefore summary judgment is proper question for consideration by the court. See Hercules Management Ltd. v. Ernst Young, 1997 CanLII 345 (SCC), [1997] S.C.R. 165 (S.C.C.) at para 15; Dawson v. Rexcraft Storage Warehouse Inc. (1998), 1998 CanLII 4831 (ON CA), 164 D.L.R. (4th) 257 (Ont. C.A.) at pp. 267-68; Irving Ungerman Ltd. v. Galanis (1991), 1991 CanLII 7275 (ON CA), O.R. (3d) 545 (Ont. C.A.) at pp. 550-51. Once the moving party has made this showing, the respondent must then “establish his claim as being one with real chance of success.” Hercules, supra, at para. 15. [11] This test was adopted by the Nova Scotia Court of Appeal in the case of Cherubini Metal Works Ltd. v. Nova Scotia (Attorney General), 2007 NSCA 38 (CanLII), 2007NSCA38. Justice Cromwell (as he was then) indicated at para. that: Summary Judgment is appropriate when defendant shows that there is no genuine issue of material fact requiring trial and responding plaintiff fails to show that its claim is one with real chance of success: Guarantee Co. of North America v. Gordon Capital Corp., 1999 CanLII 664 (SCC), [1999] S.C.R. 423 (S.C.C.) at para 27. [12] Previously the Nova Scotia Court of Appeal dealt with the situation where it is the defendant making the motion. In Cook’s Oil Company Ltd. v. Parkhill Construction (1980) Ltd., 2005 NSCA 36 (CanLII), [2005] N.S.J. No. 69, Roscoe, J.A. had this to say at paras. and 10: As noted by the chambers judge, this court first examined the Rule after it had been amended to allow summary judgment applications by defendants in United Gulf Developments Ltd. v. Iskandar, where the following test was approved, at ¶9: ... The appropriate test to be applied on motion for summary judgment is satisfied when the applicant has shown that there is no genuine issue of material fact requiring trial, and therefore summary judgment is proper question for consideration by the court. [case references and citations omitted] Once the moving party has made this showing, the respondent must then “establish his claim as being one with real chance of success.” 10 It is two part test. First the applicant, must show that there is no genuine issue of fact to be determined at trial. If the applicant passes that hurdle, then the respondent must establish, on the facts that are not in dispute, that his claim has real chance of success. [13] It should further be noted that sub-section (1) of Rule 13.04 requires “A judge who is satisfied that evidence, or the lack of evidence, shows that statement of claim or defence fails to raise genuine issue for trial must grant summary judgment. [emphasis added]. There is no room for the exercise of discretion in such instances. (See Eikelenboom v. Holstein Assn. of Canada (2004), 2004 NSCA 103 (CanLII), 226 N.S.R. (2d) 235 (NSCA)). Application of the Law to the Facts: [14] Counsel for the plaintiffs argues that GMCL has failed to establish that there is no genuine issue of material fact requiring trial and as such the moving party has failed to pass the initial hurdle. [15] She also argues that GMCL cannot rely on the releases given by the two plaintiffs (who are the subject of this motion) to Citadel as GMCL was not party to the agreement nor was there an intention on their part to extend the benefit of the releases to GMCL. In short there was no privity of contract and since the alleged manufacturing defect was not known at the time the releases were signed there could be no intention to include GMCL. [16] The operative provisions of the releases signed by Steven Johansson and Jody Robichaud (as she was then) contain the following: UNDERSIGNED hereby for themselves, their heirs, executors, administrators, successors and assigns i) release and forever discharge The Citadel Assurance and George Johansson and Maria Johansson (herein referred to as the “Releasee”) from any action, cause of action, or claim for damages specified above where the injury or, as the case may be, the damage, has been sustained as at the date hereof or may be sustained thereafter, as result of collision on the Golden Grove Road, Saint John, NB on or about the 25 day of October, 1998. ii) agree not to make any claim or take proceedings against any person or corporation who might claim contribution or indemnity under provisions of any statute or otherwise; iii) agree that the said payment does not constitute an admission of liability on the part of the Releasee; and iv) declare that the terms of this settlement are fully understood, that the amount stated herein is the sole consideration of this release and that such amount is accepted voluntarily as full and final settlement of the claim for damages specified above. [17] The releases are clear and unambiguous and although neither of the two plaintiffs had the benefit of independent legal counsel they both accepted payment in full and final settlement of any claims they had for damages arising from the accident that spawned the current action. They each stated that they fully understood the terms of the settlement and agreed to it voluntarily. They should not now expect to be compensated further, particularly where to pursue a claim could result in a claim for contribution or indemnity against Citadel. This is indeed what could result based on the defence filed on behalf of GMCL. GMCL places the blame solely on the driver and plans to seek contribution from her and her insurer should Steven and Jody Johansson be allowed to proceed with their claims. [18] In the Supreme Court of Canada decision in Fraser River Pile Dredge Ltd. v. Can-Dive Services Ltd., 1999 CanLII 654 (SCC), [1999] S.C.J. No. 48, the following was written at para. 32 In terms of extending the principled approach to establishing new exception to the doctrine of privity of contract relevant to the circumstances of the appeal, regard must be had to the emphasis in London Drugs that new exception first and foremost must be dependent upon the intention of the contracting parties. Accordingly, extrapolating from the specific requirements as set out in London Drugs, the determination in general terms is made on the basis of two critical and cumulative factors: (a) did the parties to the contract intend to extend the benefit in question to the third party seeking to rely on the contractual provision; and (b) are the activities performed by the third party seeking to rely on the contractual provision the very activities contemplated as coming within the scope of the contract in general, or the provision in particular, again as determined by reference to the intentions of the parties? [19] Both “Fraser River” conditions are satisfied and GMCL should be entitled to use the Releases to defend against the two plaintiffs who have already been compensated for their injuries by Citadel. To allow their action to proceed would be an abuse of this Court’s process. Conclusion [20] As between the plaintiffs, Steven and Jody Johansson, and the defendant, GMCL, there are no genuine issues of material fact requiring a trial. What facts are in dispute only pertain to the claim made by Maria Johansson. GMCL has passed the initial hurdle leaving it to the other two plaintiffs to establish, on the facts that are not in dispute, that their claim has real chance of success. They have failed to do so. As a result, the motion for summary judgment is granted and the claims of both Steven Johansson and Jody Johansson are hereby dismissed. [21] The parties are encouraged to try to reach agreement on costs failing which they are invited to file written submissions within 30 calendar days of the date of release of this decision. McDougall, J.

The plaintiffs, Steven and Jody Johansson, were injured in a single vehicle crash while driving with the plaintiff, Mary Johansson. They both received a damage settlement from, and signed releases in favour of, the vehicle's owner and his insurance company ('Citadel'). More than five years later, they brought this action against the car's manufacturer (the defendant, GMCL), claiming the accident was caused by an inherent flaw in the vehicle's design and seeking further damages. GMCL moved for summary judgement on the pleadings in relation to Steven and Jody Johansson, on the basis of the releases. They indicated that, should this matter proceed to trial, they would be joining Citadel as a third party. Motion granted; Steven and Jody Johansson's claims dismissed. There are no genuine issues for trial; the only facts in dispute relate to Mary Johansson. The releases were clear and unambiguous. Although neither plaintiff had the benefit of independent legal advice when signing, they both accepted payment in full and final settlement of any damages arising from the accident. They should not now expect to recover further compensation, especially where pursuing the claim will result in a claim for contribution or indemnity against Citadel. While GMCL was not a party to the release, the release did contemplate third parties being covered insofar as those third parties 'might claim contribution or indemnity'. Both conditions from the SCC case of Fraser River [1999] have been met: the parties to the contract (Citadel and the plaintiffs) intended to extend the benefit in question to the third party seeking to rely on it; and the very activities concerned are those contemplated as coming within the scope of the contract in general. GMCL should be entitled to use the releases to defend the action brought by these plaintiffs. To allow the action to proceed would be an abuse of the court's process.

c_2011nssc20.txt

23. QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2008 SKQB 210 Date: 2008 05 09 Docket: Q.B.G. No. 182/2008 Judicial Centre: Saskatoon BETWEEN: STANLEY R. POSTNIKOFF and JAMES A. MORRISON Counsel: Stanley R. Postnikoff appearing on his own behalf Richard W. Danyliuk, Q.C. for the respondent FIAT DAWSON, J. MAY 9, 2008 [1] The applicant, Stanley Postnikoff, seeks an order pursuant to s. 67(1) of The Legal Profession Act, 1990, S.S. 1990-91, c.L-10.1, as am. 2005, c.38 (“The Legal Profession Act) for an assessment of his legal bills for services rendered to him by the respondent, James A. Morrison. [2] The Legal Profession Act establishes that registrar may assess any bill for legal services, provided an application is filed within 30 days of its receipt. Under that Act, judge has the discretion to extend the period allowable for assessment of bill provided it is in the interests of justice to do so. The issue before the court is whether the applicant’s two bills fall within the period of time allowable for an assessment by the registrar, and if not, the issue is whether it is in the interests of justice to abridge the time allowing for an assessment of the legal bills by the registrar. [3] The relevant provisions of The Legal Profession Act are 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; ... (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 [4] The Legal Profession Act was amended in 2005, with two notable changes to s. 67. These amendments were addressed by Popescul J. in Doig v. Mazinke, 2007 SKQB (CanLII); (2007), 291 Sask. R. 221 (Sask. Q.B.), at paras. [8] Therefore, there have been two notable changes to the section. The first change could be described as “cosmetic” in that the traditional term “taxation” has been replaced with the more modern term “assessment”. Secondly, and more importantly to the issues involved in this application, the criteria to determine whether or not taxation should be allowed after 30 days from the date that the client received the bill is now, “... if the court is satisfied that it is in the interest of justice to do so” as opposed to, “... the person can prove to the satisfaction of the court that special circumstances exist”. [9] The phrase, “... if the person can prove to the satisfaction of the court that special circumstances exist” was exhaustively dealt with by Klebuc, J. (as he then was), in Thorstad Danyliuk v. Isley, 1993 CanLII 8892 (SK QB), [1993] W.W.R. 181; 110 Sask. R. 100 (Q.B.). [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. [5] Here, Mr. Postnikoff hired Mr. Morrison to act as his legal counsel for two separate matters. [6] Mr. Morrison began representing Mr. Postnikoff in the first matter, an action dealing with Back-Track Investigations (“Back-Track”), in October 2004. Mr. Morrison began representing Mr. Postnikoff in the second matter, an action against BASF Canada Ltd. (“BASF”) in April 2005. Mr. Postnikoff paid Mr. Morrison an initial retainer of $1,000.00. [7] In the Back-Track matter, Mr. Morrison rendered interim accounts to Mr. Postnikoff on October 25, 2004, November 24, 2004 and January 28, 2005. These invoices were paid out of the initial $1,000.00 retainer. [8] In the BASF matter, Mr. Morrison rendered interim accounts on April 25, 2005, June 27, 2006 and October 28, 2005. These invoices were also paid from monies held in trust. [9] According to the affidavit of Mr. Morrison, the last bill rendered to Mr. Postnikoff on the Back-Track matter was on September 27, 2006 after three day trial and receipt of the trial judgment. Mr. Postnikoff did not pay this account, but told Mr. Morrison it would be paid or that it would be paid out of the settlement proceeds he expected to receive on the BASF matter. [10] According to the affidavit of Mr. Morrison, his office prepared its last bill on the BASF matter on May 29, 2007. However, the bill was not provided to Mr. Postnikoff until after July 16, 2007. The BASF matter was settled, although the evidence does not indicate when it was settled. Mr. Morrison received the settlement proceeds of $15,000.00 on June 25, 2007. [11] On July 10, 2007 Mr. Morrison wrote to Mr. Postnikoff advising him of receipt of the settlement proceeds. That letter also stated: ... Further to our meeting of July 10th, 2007 understand that you having an opportunity to review summary of the outstanding statements of account regarding this matter and the Back-Track matter you will be contacting me directly to discuss those matters and an arrangement for payment of the accounts. [12] On July 16, 2007 Mr. Morrison wrote to Mr. Postnikoff, stating: Re: Back-Track Investigations Special Services Ltd. BASF Canada As requested in your email of Wednesday, July 11th, 2007, copy of which received by registered mail, enclose herewith for your reference the following: 1. Billing History for the Back-Track Investigations Special Services Ltd. matter and the BASF Canada matter. 2. have also provided you with copies of all out statements of account on each of these files which, of course, we had provided to you previously, when such accounts were rendered. The last account of May 29th, 2007 is on our file and had not been previously forwarded to you. enclose herewith copy of that account as it had been held on our file for me to provide to you when we next met. trust that this is the information that you require. Please advise as to whether you are available to meet on Monday, July 23rd, 2007 at 2:00 p.m. If this does not work for you would you please email me as to proposed date and time on the 23rd, 24th, or 25th of July, 2007 that you would more convenient for you to meet and will attempt to make myself available if possible at that time or contact you to suggest an alternate time that we could meet. [Emphasis Added] [13] On July 24, 2007 Mr. Postnikoff met with Mr. Morrison. Mr. Postnikoff asked Mr. Morrison if the total amount shown on the billing history was the amount that he was expected to pay. Mr. Morrison told Mr. Postnikoff, as he had shortly after the Back-Track trial, that he would be willing to accept $7,500.00 as full payment of the Back-Track account. That would reduce the Back-Track account from $11,773.01 (for fees, disbursements and taxes) to $7,500.00. [14] On the same date, July 24, 2007, Mr. Morrison told Mr. Postnikoff, on the BASF matter, that he was prepared to write off legal fees of $1,800.00, which would reduce that account to $7,000.00. [15] Mr. Morrison also said on July 24, 2007 that he would recommend to his managing partner further reduction in the bills. Mr. Postnikoff did not respond, but rather complained to Mr. Morrison about Mr. Morrison’s work. Mr. Morrison said he would advise Mr. Postnikoff after he (Mr. Morrison) returned from holidays on August 20, 2007 whether his managing partner would approve any further reduction in the accounts. [16] On August 28, 2007, Mr. Postnikoff sent Mr. Morrison an e-mail asking why Mr. Morrison had not presented him with final bill. On the same day, Mr. Morrison sent letter to Mr. Postnikoff, stating that his office would be prepared to reduce the accounts by further 25% and that he would accept $11,000.00 (a further reduction of $91.42 after the 25%) as full payment for both outstanding matters. [17] Neither side contacted the other after this time, until December 6, 2007, when Mr. Morrison sent letter to Mr. Postnikoff informing him that the period to apply for taxation (assessment) of his accounts had expired. This letter also stated that the total outstanding amount on both accounts would be paid from the monies held in trust. [18] On December 31, 2007 Mr. Morrison deducted $11,000.00 from the money he held in trust and paid the accounts. [19] On January 21, 2008 Mr. Morrison wrote Mr. Postnikoff advising him that he had paid his accounts ($11,000.00) from the monies in trust. Mr. Morrison asked Mr. Postnikoff to provide him with instructions with respect to the remaining $4,000.00 held in trust. On February 5, 2008 Mr. Postnikoff filed his motion for an assessment of his legal bills. Mr. Postnikoff also sent letter, on that same date, to Mr. Morrison, asking Mr. Morrison to return the balance of monies being held in trust. On February 8th Mr. Morrison returned the remaining monies held in trust to Mr. Postnikoff. [20] Mr. Morrison takes the position that the last bill rendered for Back-Track was on September 27, 2006 and the last bill rendered for BASF was on May 29, 2007. It is of note that neither party to this application filed any of the accounts. All the court has before it is “Trust History” showing the monies in trust and the amounts paid out, and document entitled “Billing History”, which shows the total amount of fees, disbursements and taxes charged on particular days. There were no accounts which broke down the work done and hours worked. It is unclear if such type of accounts were given to Mr. Postnikoff, but presume they were. [21] The evidence before the court is that the Back-Track matter and BASF matter were separate actions. The last Back-Track bill was rendered September 27, 2006. There is nothing in the evidence which would indicate that the Back-Track September 27, 2006 bill was intended to be an interim bill. The evidence indicates that Mr. Postnikoff advised Mr. Morrison that the bill would be paid in full. Mr. Postnikoff did not question the bill at the time it was rendered. The first time the amount was disputed was after the second matter, the BASF matter was completed. There was considerable period of time between the Back-Track final bill and the BASF settlement. If Mr. Postnikoff had genuine concern respecting the cost of the services provided by Mr. Morrison on the Back-Track matter, he had a lengthy opportunity to raise the issue or hire alternate counsel, but he did not do so. [22] I am not satisfied that it is in the interests of justice to extend the time for an application for an assessment of the Back-Track account. The account of $5,625.00 on the Back-Track matter shall not be subject to assessment. [23] The circumstances involving the BASF matter are somewhat different. First, Mr. Postnikoff disputed the amount of the services, putting Mr. Morrison on notice when he received the billing document. The May 29, 2007 account (which was not given to Mr. Postnikoff until after July 16, 2007) may not have been final bill. Mr. Morrison did not state that the bill was final, but rather stated that it could be subject to further adjustments. The outstanding amount on the BASF account was $9,088.56. On July 24, 2007 Mr. Morrison indicated he would reduce that account by $1,800.00 to the amount of $7,288.56 and that he would discuss with his managing partner whether the bill could be reduced further. On August 28, 2007 Mr. Morrison said he would further reduce the account by further 25% to $5,466.42, and, then reduced both accounts by further $91.42.Mr. Morrison was unavailable to discuss further changes until after the expiration of the 30 day period. [24] I am not convinced that the billing document sent to Mr. Postnikoff on July 16, 2007 was a final bill, as evidenced both by parties discussions on July 24, 2007, and further evidenced by Mr. Morrison’s letter dated on August 28, 2007. The British Columbia court in De Cotiis v. Owen Bird, (1998), 1998 CanLII 3821 (BC SC), 51 B.C.L.R. (3d) 272; [1998] B.C.J. No. 274 (QL) (B.C.S.C.) outlines two important factors when court is determining if bill is final bill. First, final account need not be last account. Second, a final account will not be subject to change, and will cover all professional services performed within a certain time. Mr. Morrison sent his correspondence on August 28, 2007, without prejudice. Had Mr. Postnikoff been able to use this letter as his final bill, and apply for assessment under the legislation, it may have amounted to final bill. However, since the privilege was held by Mr. Morrison and only waived when he filed his affidavit on February 26, 2008 (as he attached the bill), I am not satisfied it was a final bill. On December 6, 2007 Mr. Morrison sent letter to Mr. Postnikoff indicating he intended to transfer money from trust to pay the BASF account. On December 31, 2007 Mr. Morrison transferred the monies. On February 5, 2008 Mr. Postnikoff applied for an order for assessment. [25] In this case, there has been no lawsuit commenced for the collection of the account. Mr. Morrison has been paid from monies in trust. The time being abridged is relatively short. There were discussions between Mr. Postnikoff and Mr. Morrison concerning the appropriateness of the account at the time the account was rendered, and for period of time thereafter. Neither party has alleged or established that any prejudice would result from the abridgement of time. I am satisfied that it is in the interests of justice to abridge the time and order the assessment. [26] In referring this matter for assessment, am not suggesting that the bill rendered by Mr. Morrison in this case was inappropriate and/or excessive. What has been found is that the bill was rendered; that the client took exception to the bill; that client has requested assessment, such request coming outside of the 30 day window provided in the Act; and that have determined that it is fair and appropriate to expand the time. [27] As result, there shall be an order pursuant to s. 67 of The Legal Profession Act, 1990, supra, as amended: (1) that Mr. Morrison’s bill be assessed by the local registrar of the Court of Queen’s Bench at the Judicial Centre of Saskatoon, or his deputy, at time and place to be fixed by him; (2) the local registrar of the Court of the Queen’s Bench at the Judicial Centre of Saskatoon or his deputy, is hereby directed to, (a) assess the costs (b) certify the amount that the local registrar, or his deputy, may determine to be due from each party with respect to the bill and the costs of the assessment. [28] There shall be no costs of this application. J. C. L. Dawson

Applicant seeks an order for an assessment of his legal bill. A Registrar may assess any bill for legal services, provided that the application is filed within 30 days or more if a judge makes a discretionary order to extend the period for assessment if it is in the interests of justice to do so. The issue if whether the applicant's two bills fall with the said 30 days or if this is a case where it is appropriate to abridge the time for allowing an assessment. HELD: It is in the interest of justice to order an assessment. The bills were issued in two separate matters. In the first matter, the final bill was rendered and the applicant had a lengthy opportunity to raise the issue. There will be no extension of time for the first bill. The second bill is different in that the applicant disputed the amount of the bill when he first received it. He was advised that the bill would be adjusted. An initial adjustment was made and when still not satisfied, ongoing discussions about the bill continued. The Court held that the last document received by the applicant was not the final bill as it was still subject to change. In this case, the lawyer has been paid from monies held in trust for the client, the time being abridged is relatively short and neither party has alleged that any prejudice would result.

5_2008skqb210.txt

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2011 SKPC 005 Date: January 13, 2011 Information: 24370679 Location: Carrot River Between: Her Majesty the Queen and Carrie Neigel Appearing: Mr. T. Healey For the Crown Mr. R. Saretzky For the Accused JUDGMENT B. MORGAN, INTRODUCTION: [1] Based on the events of December 5, 2009, at Carrot River, Ms. Neigel was charged with one count of impaired driving, and one count of driving “over .08”, as the charges are more formally particularized in the Information. The defence has admitted all of the essential elements of each charge; the only issue is the factual one of whether or not Ms. Neigel was the person operating the vehicle. The defence suggests that another individual, Mr. Wiens, was the driver, and that he had vacated the vehicle moments before the officers arrived. [2] The background is not in dispute. The officers had been advised that, on occasion, there were compliance issues respecting “cut off” at the local bar, so they decided to drop in while on routine patrol. The officers arrived at the hotel at 2:00 a.m., at which time they observed Ms. Neigel, and other individuals, playing “drinking games”; Cst. Holmstrom estimated that there were five or six people. Ms. Neigel jokingly asked the officers to join them. The officers gave friendly warning to the individuals not to drive when they left the bar, and exited the establishment. By all accounts, this encounter was quite friendly in nature. [3] The officers continued their patrol in the area, and returned to the bar at approximately 3:00 a.m., the closing time. The officers stopped in the back lane, and both noted people exit the back of the bar, and get into black truck. Cst. Holmstrom thought that four or five people got into the truck. Cst. Stanton noted that all four doors of the vehicle were opened. The officers were not able to identify where any of the individuals sat in the truck. Both officers were of the view these individuals were the individuals they had spoken to previously at the bar, and both officers were clearly of the view that none of those individuals were in any shape to be operating motor vehicle. [4] Cst. Holmstrom estimated the officers were approximately 100 metres away when they first observed the vehicle being started. Cst. Stanton thought the distance was little less. This vehicle, four door half-ton truck, started to back up. This prompted Cst. Holmstrom, who was driving the police truck, to immediately turn on the headlights, engage the emergency lights, and close the distance to the vehicle. The vehicle then pulled back into the spot it had just left, the police pulling in behind. Both officers quickly exited their vehicle, and both went to the driver’s side door of the suspect vehicle. [5] As Cst. Holmstrom approached the driver’s side door, he saw it start to open, and he yelled for the occupants to stay in the truck. The door started to close, and he ran to it and put his hand against it to ensure it would not start to open again. The driver’s side window was then rolled down. Ms. Neigel was in the driver’s seat. [6] At this point, there is some dispute over the facts. Cst. Holmstom testified that he told Ms. Neigel to shut off the vehicle, which was still running; she did so, and he testified that she put the keys on to the dashboard. Cst. Stanton, who was standing just behind Cst. Holmstrom, testified that he definitely saw keys in the ignition although he did not know what happened to those keys. Both officers were clear that the vehicle was running, and that there were keys in the ignition, when they first encountered Ms. Neigel. The defence evidence on this point is that there were no keys in the ignition, the vehicle being, at the time the officers arrived, idling under the remote “command start” that had been turned on by Mr. Wiens at the time he exited the vehicle moments before the police approached the vehicle. [7] Ms. Neigel was taken out of the vehicle, and placed in the back of the police vehicle. Cst. Holmstrom noted what he thought were signs of impairment. About the same time, other people got out of the vehicle, and at least one individual asked for the keys, in order to start the vehicle so they could wait in the vehicle while the police dealt with Ms. Neigel. Although there was no specific evidence as to the actual temperature, all parties who testified agreed that it was very cold, and the estimate of minus 20 degrees Celsius does not seem unreasonable. [8] Eventually, Ms. Neigel was taken to the police station, and all of the other individuals who were in the vehicle walked away. Cst. Holmstrom was not absolutely sure what happened to the vehicle keys, although he did indicate that the vehicle was left behind the bar to eventually be towed. [9] Ms. Neigel’s evidence was that she had driven her vehicle to home approximately two blocks away from the bar, and had walked with number of friends to the bar at approximately 10:00 p.m. or 11:00 p.m. the night before, that is, December 4. Ms. Neigel testified she had four or five drinks prior to going to the bar, and four or five drinks at the bar. She indicated that Mr. Wiens arrived at approximately 12:30 a.m. or 1:00 a.m., and that he wasn’t drinking. As Ms. Neigel put it, the group kind of “volunteered” Mr. Wiens to be the designated driver. Ms. Neigel said she and Dave Derksen were in the front seat, although in cross-examination she said she recalled that she was in the middle, that is, there may have been third person in the front seat. She also said that more people jumped into the back, although she could not say where anyone in the back was sitting. [10] She went on to say that Mr. Wiens, who she says was driving, started to back the vehicle up, when someone said that “off-sale” was needed, that is, the group had no beer. He therefore pulled back in, took his keys out of the truck, and went in to obtain something for the group to drink. As he took the keys, he used fob on the key chain to start the “command start”, that is, remote starting device, as it was cold evening and he wanted to make sure the individuals in the truck were warm. [11] Mr. Wiens testified that he is guide, and had been working earlier that day in that capacity. He stated he arrived at the bar at approximately 9:00 p.m. on December 5, and that before he got to the bar, he had couple of drinks. There were group of people at the bar, and he stated that he only had one beer at the bar because he was driving. [12] His evidence was that he noted the group of people at the bar whom he was acquainted with, so he sat with them and visited. He stated that he had been in the bush for month and half, so it was good to get out. He recalled the officers coming in, although he did not have any specific recall of particulars of what went on. He thought the police had come in at approximately 11:00 p.m. or 11:30 p.m. [13] With respect to alcohol consumption of others, he described Ms. Neigel as being “pretty full”, phrase interpret to mean that she was “pretty drunk” (Ms. Neigel’s words) when the police arrived, and there is no real suggestion she was any less intoxicated when the individuals exited the bar at approximately 3:00 a.m. [14] Mr. Wiens had testified that when they left the bar, they were going to friend’s house, and that he told people in the bar to “pile in” the truck. He stated that he was behind the driver’s wheel, and Ms. Neigel was next to him, and there were number of others in the back, he thought four. [15] His evidence was that he started to back out, someone made note that they had forgotten to purchase off-sale, so he pulled in, shut off the vehicle, pulled the keys out of the ignition, turned on the command start to leave the vehicle running, and went towards the back door of the bar to obtain off-sale. He was very adamant that he didn’t want to leave his vehicle running with the keys in the ignition, the advantage of command start being that, if an individual touches the brakes (in order to put the vehicle into gear), the vehicle would automatically shut off. [16] That is the substance of the case. As mentioned previously, the sole factual issue is whether or not Ms. Neigel was the operator of the vehicle. DISCUSSION: [17] There were number of inconsistencies, and resolution of this case can only be made by determining what the facts are. start by noting that, where the evidence of the Crown witnesses is in conflict with the evidence of either or both defence witnesses, accept the Crown witnesses’ version of events. In sum, for the reasons that follow, am satisfied beyond reasonable doubt that Ms. Neigel was in fact the operator of the motor vehicle at all relevant times that morning, and am satisfied beyond reasonable doubt of her guilt on both counts, irrespective of the acknowledgement that all aspects of the case were established, but for identity. [18] In assessing credibility, of course, can accept some, all, or none of the evidence of any particular witness. In assessing credibility, had the opportunity to hear each of the witnesses, and carefully observed the manner in which they testified, and the statements that they made. prefer the evidence of the police officers, in general, for number of reasons. noted that each of the officers testified in very straightforward and candid manner, without any attempt to fabricate or embellish. In particular, at one point Cst. Stanton testified that he wasn’t sure whether or not the vehicle had started to pull back in. As such, it was obvious he was prepared to admit to being unsure of some things, which certainly did not hurt his credibility. By the same token, when it was suggested to him in cross-examination that he did not actually see any keys in the ignition, he was adamant and unshaken in his evidence that he definitely saw keys in the ignition. [19] had much the same observations of Cst. Holmstrom. There were certain things he was not aware of, as he had not made notes of all the particulars. However, when questioned on particulars that he had not noted, he was not inclined to start to fill in blanks of evidence; if he didn’t know the answer, he simply said he didn’t know the answer. [20] Both officers were polite and forthright in their evidence both in examination-in-chief and in cross-examination. Both officers were adamant and unshaken on the main points of the evidence. The fact that they were not sure of collateral matters, matters that would have been of no import in their investigation, does not detract from their credibility. Until such time as they became actively involved in an investigation of suspected impaired driving offence, there would be no need to pay particular attention to routine patrol matters. [21] With respect to the evidence of each of Ms. Neigel and Mr. Wiens, note firstly that Ms. Neigel was very intoxicated at the time. She admitted in cross-examination that there were some things she didn’t remember from that evening, and some things she had clear recollection of, an example of the latter being her sitting in the middle of the front seat, as the other two males that she said were in the front seat, that is Mr. Derksen and Mr. Wiens, did not want to sit next to each other. When asked in cross-examination if she was driving for bit, she said she didn’t think so, then said probably not, and then said she didn’t remember backing up or getting into the driver’s seat. She conceded that it was possible that she did drive, although her evidence was that “if was going to drive, probably would have taken my truck to the bar”. She then indicated that she did remember backing up, or at least the vehicle backing up, at which point she was in the middle seat. [22] Ms. Neigel was polite and cooperative both in examination-in-chief and cross-examination, however, I have no doubt that her ability to observe what occurred on December 5, and accurately recall it almost one year later at trial, was severely hampered by her alcohol intake on December 4 and 5. [23] With respect to Mr. Wiens, found him to be somewhat evasive in cross-examination, tendency he did not exhibit in examination-in-chief. The difference between the demeanour he exhibited during his testimony, based on who was asking him questions, caused me to have considerable concern. [24] Although there were number of inconsistencies in the evidence of the defence, restrict myself to few examples, in order to provide specific reasons for rejecting the defence evidence. have already dealt with Ms. Neigel’s evidence, which reject due to her extreme level of intoxication; her recollection of events was simply not reliable. will now focus on some things that Mr. Wiens said. [25] First, Mr. Wiens volunteered the fact, during cross-examination, that he actually got room at the hotel adjacent to the bar rather than drive home that night. When queried why he would stay at hotel, when the original plan was that he was the sober one who was going to drive the other individuals home on cold night, he simply didn’t have satisfactory answer. found that evidence to be simply unbelievable. If Mr. Wiens was as sober as he says he was, having drunk grand total of three beer over the entire course of the preceding seven or eight hours, there would be no reason for him to stay at hotel when he was, in his mind at least, clearly sober enough to drive home. He was, after all, the designated driver. [26] also do not accept Mr. Wiens’ evidence as to getting out of the vehicle and going in to pick up off-sale. The police evidence is very clear, from both officers, that from the time they noted the individuals getting into the truck, until they arrived at the door of that truck, at no time was the vehicle out of their sight. As soon as the vehicle started to back up, the police officers started to approach and very quickly pulled right in behind the vehicle; at most, the entire incident took mere seconds, from the time the vehicle backed up, and then pulled in. Mr. Wiens testified that he is 6' 1" tall, and he weighs 340 pounds. He also testified that there were four people in the front seat of the truck, including him. (He said this fourth individual was Henry Derksen.) Had Mr. Wiens actually exited the vehicle, and gone into the bar to get off-sale, the police would simply had to have observed him exit the vehicle. Both officers were absolutely adamant that they had the vehicle in their sight at all times, and at no time did the driver’s door fully open. [27] also noted that Mr. Wiens tended to answer questions, especially in cross-examination, by resort to what he normally does, and was simply not able to state what he specifically did on the morning in question. For example, he stated he knew he had the keys, because he wouldn’t have left the keys in the vehicle with drunk people in the vehicle. As he put it, “nine times out of ten take my keys with me if there was someone drunk in my truck”. When pressed as to what he did that morning, he kept avoiding the issue, and am absolutely satisfied he couldn’t recall all particulars of that night. It took considerable cross-examination before he finally agreed he wasn’t sure that he had the keys, going on to say that the events of that night were “a bit of blur”. As well, of course, had he been in possession of the keys when he says he returned to the bar, there would have been no need for anyone in the truck to ask the police for the keys, in order to keep warm; Mr. Wiens could have simply activated his command start. I find as a fact that the keys were in the ignition when the police arrived at the truck and had been in the ignition since the time the group entered the vehicle. [28] In comparing the evidence of Ms. Neigel and Mr. Wiens, note number of inconsistencies. The time lines given by Mr. Wiens are considerably different from time lines given by Ms. Neigel. That is, Ms. Neigel said that Mr. Wiens came into the bar at approximately 12:30 or 1:00 a.m., and Mr. Wiens stated he got to the bar at about 9:00 p.m., four hour difference. As well, Mr. Wiens thought it was approximately 11:00 p.m. when the police came through the bar the first time, fully three hours difference from the time that Ms. Neigel, and the police themselves, gave. Ms. Neigel seemed to have total of three individuals in the front seat of the vehicle, Mr. Wiens had four. [29] In short, the defence evidence lacks reliability. I do not accept that evidence, nor does that evidence leave me in a state of reasonable doubt. That, of course, does not end the matter. must still ask myself if, based on the evidence that do accept, am convinced beyond reasonable doubt of the guilt of the defendant. am so satisfied. [30] In review, I am absolutely satisfied of the following facts: 1) at the time the individuals got into the truck, Ms. Neigel was behind the wheel; 2) at no point did anyone other than Ms. Neigel have operation of that vehicle; she was the one who backed it out, and again pulled it forward; 3) at no time did any individual exit the vehicle, after getting in the vehicle as observed by the police; 4) keys were in fact in the vehicle, and it was running, as the police came to the driver’s side door; 5) Ms. Neigel’s blood alcohol level exceeded the permitted amount (count 2). The Certificate of Analyses tendered as Exhibit P-1 by consent shows blood alcohol level of 150 milligrams of alcohol in 100 millilitres of blood, at 3:30 a.m., and again at 3:51 a.m., on the morning of the incident. [31] I find Ms. Neigel guilty on count 2, the “over .08”, as particularized in the Information. I also find her guilty on count 1, the charge of impaired operation of a motor vehicle. However, in order to avoid offending the rule against multiple convictions, enter judicial stay on count 1, to become final upon the expiration of all appeal periods.

The accused was charged with impaired driving and driving over. 08. The sole issue to be determined was whether the accused was the person operating the vehicle at the time of the stop. The police testified that they had walked through the bar before closing time and then returned to the bar at closing time. The evidence was that the accused had been seen playing drinking games in the bar. The police observed the people they had seen in the bar get into a truck and back up. The police activated their emergency equipment and approached the vehicle. The accused was sitting in the driver's seat when the police approached the vehicle. The defence suggested that another individual had been driving the truck when it backed up but had gone inside the bar to purchase off sale before the police approached the truck. HELD: The accused was convicted of both counts and a judicial stay was entered on the impaired driving count. The Court found that the evidence of the accused was unreliable as a result of her alcohol consumption on the offence date. The evidence of the person that the defence suggested was the driver was inconsistent and caused the Court concern about its reliability. The Court found that at the time the individuals got into the truck, the accused was behind the wheel and that she was the one who backed the vehicle up and pulled it forward. The keys were in the vehicle and it was running when the police came to the driver's door. The accused's blood alcohol content at the time of driving as shown by the Certificate of Analysis was 150 milligrams of alcohol in 100 millilitres of blood.

2_2011skpc5.txt

J. 1996 SN No. 101470 IN THE SUPREME COURT OF NOVA SCOTIA Between: JOSH FRANCIS COSTELLO, an infant by his Litigation Guardian/Trustee, DENNIS RICHARD COSTELLO APPLICANT/PLAINTIFF and WILLIAM BRIAN MACKENZIE and THE CAPE BRETON DISTRICT SCHOOL BOARD DECISION Heard before: The Honourable Justice Simon J. MacDonald Place heard: Sydney, Nova Scotia Date heard: December 16, 1996 Decision released: January 13, 1997 Counsel: Sheldon Nathanson, for the Applicant/Plaintiff MACDONALD, J: This is a Chambers Application wherein the Applicant seeks approval of the Court for a settlement reached on behalf of the infant plaintiff in this matter. The matter was set down for hearing on December 16, 1996 and the Court was presented with the application and affidavits of Dennis Richard Costello and Sheldon Nathanson as the applicant's counsel. brief summary of the facts as supplied by counsel reveal as follows: On or about the first day of December, 1992, Josh Francis Costello was waiting for school bus to pick him up outside the Balls Creek Elementary School. Josh Francis Costello was attending the Balls Creek Elementary School which is within the district of the Cape Breton District School Board, in the County of Cape Breton, Province of Nova Scotia. As the bus driven by William Brian MacKenzie came into sight, Josh Costello and the other children approached the usual boarding sight. The bus pulled up to the boarding sight and stopped. As Josh Costello and several others were waiting at the entrance to the bus, the bus pulled away suddenly causing some of the children to lose their balance. Josh Costello fell to the ground and immediately felt the bus run over the lower half of his right leg. His parents were notified of the accident by the school principal and he was then transported to the Northside Harbourview Hospital. The medical reports on file indicate that the infant plaintiff suffered crush injury to the right leg below the knee. No surgery was required and the infant has now been advised to return to his pre-accident activities. In support of this, medical reports were supplied by Vascular Surgeon, Dr. R.S. Dunn and Orthopaedic Surgeon, Dr. J.C. Hyndman, along with the infant plaintiff's family physician. In essence, they reveal that there does not appear to be any objective medical evidence to suggest that the infant's injuries would cause any permanent discomfort or disability. After reading the affidavits submitted at the application, counsel was advised that the matter would be adjourned for one week pending receipt of Memorandum of Law outlining the basis for the acceptance of the sum of Seventeen Thousand ($17,000) Dollars in full and final payment, which is the sum being asked for approval. Counsel were also instructed to present, to the Court, an appropriate bond in this matter which had not been submitted. This has now been done and the Court agrees the $17,000.00 is reasonable settlement on the facts of this case. It also approves of the Bond now presented. In their brief and supporting material, Mr. Nathanson and his associate, Ms. Doyle advised that the settlement proposed to the Court for approval was the sum of $17,000.00, all inclusive of costs. Attached to Mr. Nathanson's affidavit is Contingency Fee Agreement between his firm and the infant plaintiff and his parents. The proposed Contingency Fee Agreement provides for the payment of 30% of the sum settled upon, plus disbursements. The proposed Order presented to the Court reveals that the total fees and disbursements amount to $5,753.50. The balance of the $17,000.00 settlement in the amount of $11,256.50 is to be paid over to the parents as Trustees and dealt with under the terms of the Bond and pursuant to the Court Order. Paragraph 10, and the two subsequent paragraphs, each numbered 11 in Mr. Nathanson's affidavit, state as follows: 10. THAT in connection with my professional services rendered in relation to this matter, provided an account to the Infant Plaintiff, by his Litigation Guardian, Richard Costello, dated November 13, 1996, copy of which is attached hereto and marked as Exhibit "J" to this Affidavit. This account provided for total fees of Five Thousand, One Hundred ($5,100.00) Dollars, being thirty (30%) percent of the all-inclusive settlement of Seventeen Thousand ($17,000.00) Dollars as provided for in the Contingency Fee Agreement, together with taxable disbursements of One Hundred and Sixty Dollars and Twenty-Eight Cents ($160.28), Goods and Services Tax of Three Hundred and Sixty Eight Dollars and Twenty-Two ($368.22) and non-taxable disbursements of Seventy Five ($75.00) Dollars for total of Five Thousand, Seven Hundred and Three Dollars and Fifty Cents ($5,703.50). 11. THAT arranged to have this account taxed by the Taxing Master, Michael Whalley, at our offices on November 14, 1996 and advised both Mr. Richard and Mrs. Darlene Costello of this taxation. Richard Costello, father of the Infant Plaintiff, advised that he would be making no representations on behalf of the Infant Plaintiff with respect to the account as rendered. 11. THAT on November 14, 1996, Mr. Michael Whalley, Taxing Master, attended at our offices to review our account of November 13, 1996 and provided the account as taxed and included his taxing costs of Fifty ($50.00) Dollars for total account of Five Thousand, Seven Hundred and Fifty Three Dollars and Fifty Cents ($5,753.50), which amount is included in the Order put before this Honourable Court for approval. Chambers Judge has an onus to review the documentation on file prior to signing an Order of this nature. Civil Procedure Rule 63 dealing with Contingency Fee Agreements must be followed. Rule 63.19(1) of the Civil Procedure Rules requires the filing of Contingency Fee Agreement and it states as follows: "63.19 (1) Within ten days after it is signed, copy of an agreement referred to in rule 63.17 shall be filed with the Prothonotary of the county where the solicitor practices, and the Prothonotary shall file the agreement separately from any proceeding, and, unless the court otherwise orders, the agreement is not available for inspection by, or its contents shall not be communicated to any person, other than the client, solicitor, or taxing officer engaged in the taxation. (2) Where an agreement as mentioned in rule 63.17 does not comply with rule 63.18, or is not properly filed as provided in paragraph (1), the solicitor is, upon the successful disposition of the subject matter, entitled only to the compensation as would have been payable in the absence of any contingency arrangement and without regard to the contingency. It is these subsections of the rule dealing with the Contingency Fee Agreements which poses difficulty in this particular case. As said the Court has an obligation dealing with Contingency Fee Agreements to ensure the Rule is adhered to. As it turns out, upon review, the Court found that there is no record of the Contingency Fee Agreement ever being filed with the Prothonotary within the required ten days or at all. At the Court's request Mr. Nathanson has advised that he did not register the Contingency Fee Agreement with the Prothonotary's Office as required. The wording in Civil Procedure 63.19(1) requires that the filing of the Agreement with the Prothonotary is mandatory because of the use of the word "shall". This was not done in this case. As the Agreement does not comply with Civil Procedure Rule 63.19(1) and thus under subsection 2 of rule 63.19, the solicitor is therefore only entitled to compensation "as would have been payable in the absence of any contingency arrangement and without regard to the contingency." This means the Contingency Fee Agreement is out. The rules with regard to Contingency Fee Agreements as set out must be adhered to to ensure fairness to all the parties concerned. am prepared to receive and review properly prepared account as provided for in the Rules. hasten to point out the Court is not prepared to allow the Taxing Master's account of $50.00 in any event. It appears the Taxing Master did not check to see if the Contingency Fee Agreement met the requirements of the Civil Procedure Rule governing it. That was task that was placed upon the Taxing Master when he was asked to have the account taxed. As this was not done, the Court is not prepared to allow any fee payable to the Taxing Master. Sydney, N. S. January 13, 1997

The applicant sought approval of the Court for a settlement reached on behalf of the infant plaintiff, who had been injured in an automobile accident. Part of the order sought provided for the payment of solicitor fees by way of a contingency fee agreement negotiated with the applicant. The contingency fee agreement was never filed with the prothonotary. Granting the order relating to the settlement amount, but setting aside the contingency fee agreement, that Civil Procedure Rule 63.19(1) requires that all contingency fee agreements be filed with the prothonotary. As this was not done, the applicant's solicitor is only entitled to compensation as would have been payable in the absence of the contingency agreement.

3_1997canlii15044.txt

nan QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2007 SKQB 34 Date: 2007 01 23 Docket: B.A. 30/2006 Judicial Centre: Regina BETWEEN: HER MAJESTY THE QUEEN and LESTER WAYNE FAVEL Counsel: Tammy E. Pryznyk for the Crown Lester Wayne Favel self-represented JUDGMENT GUNN J. January 23, 2007 [1] Lester Favel (the “accused”) brings an application pursuant to s. 520 of the Criminal Code for a review of the order denying him judicial interim release. Mr. Favel previously entered guilty pleas to number of offences which include assault on Santana Stonechild, break and enter residence, assault on Tamara Michiskinic, and four charges of breach of undertaking. Mr. Favel received conditional sentence on these charges April 12, 2006 and the Crown alleges that Mr. Favel has breached the conditions imposed at that time. Pursuant to s. 742.6 of the Criminal Code this places the onus on Mr. Favel to show cause why his detention in custody is not justified. [2] In addition, Mr. Favel is facing new charges. He is charged that he did on or about September 15, 2006 assault Juanita Sunshine. He was originally released on that charge on October 2, 2006, but failed to appear in court as required to do on October 16, 2006. He appeared in court in custody on October 31, 2006 and he has remained in custody since that time. He is also charged with the offence of assault causing bodily harm on Robert Landry on October 31, 2006 and with breach of his undertaking. Because the accused was previously released on bail and is now charged with additional offences and with breaching the conditions of his previous release the onus is also on the accused in respect of these charges to show cause why his detention in custody is not justified within the meaning of subsection 515(10). [3] The powers of judge on review application are set out in subsection 520(7) of the Criminal Code. They are the following: 520.(7) On the hearing of an application under this section, the judge may consider (a) the transcript, if any, of the proceedings heard by the justice and by any judge who previously reviewed the order made by the justice, (b) the exhibits, if any, filed in the proceedings before the justice, and (c) such additional evidence or exhibits as may be tendered by the accused or the prosecutor, and shall either (d) dismiss the application, or (e) if the accused shows cause, allow the application, vacate the order previously made by the justice and make any other order provided for in section 515 that he considers is warranted. [4] The grounds upon which the detention of an accused is justified are set out in subsection 515(10) of the Criminal Code. This section provides as follows 515.(10) For the purposes of this section, the detention of an accused in custody is justified only on one or more of the following grounds: (a) where the detention is necessary to ensure his or her attendance in court in order to be dealt with according to law; (b) where the detention is necessary for the protection or safety of the public, having regard to all the circumstances including any substantial likelihood that the accused will, if released from custody, commit criminal offence or interfere with the administration of justice; and (c) on any other just cause being shown and without limiting the generality of the foregoing, where the detention is necessary in order to maintain confidence in the administration of justice, having regard to all the circumstances, including the apparent strength of the prosecution’s case, the gravity of the nature of the offence, the circumstances surrounding its commission and the potential for lengthy term of imprisonment. [5] In deciding this matter have received and reviewed the original Informations on all outstanding matters involving the accused. have considered the criminal record of the accused which has been admitted by him. have not considered the transcript as it relates to the circumstances of the new offences, as am not satisfied that the comments of Crown counsel contained in it are evidence within the meaning of s. 518 of the Criminal Code. No admission was sought from, nor made by the accused who was representing himself, concerning any of these factual assertions. The accused did not make any admissions in relation to the alleged facts on this bail review. [6] The accused’s criminal record commences in December 2001, with the last conviction being registered July 19, 2006. It consists of 36 convictions including six offences involving assault or threats. There are also 11 convictions which show that the accused does not comply with court orders. These convictions include driving while prohibited, breach of probation and breach of undertaking. In addition, there are two convictions for failing to appear and one for being unlawfully at large. [7] The Crown submits that all outstanding matters will be dealt with in Provincial Court on February 12, 2007. It is opposed to the accused’s release relying primarily on s. 515(10)(b) of the Criminal Code. [8] The accused submits that he would have place to stay with his grandmother if he were to be released. He further submits that he would be prepared to comply with any conditions imposed by the Court. He submits that alcohol treatment is essential to his success. He wants to make significant changes in his life. [9] In R. v. Morales, 1992 CanLII 53 (SCC), [1992] S.C.R. 711; (1993), 17 C.R. (4th) 74 (S.C.C.), Lamer C.J.C. commented on the “public safety” component of s. 515(10)(b) at pp. 736 and 737, as follows: The public safety component of s. 515(10)(b) provides that pre-trial detention is justified where it is necessary “for the protection or safety of the public, having regard to all the circumstances including any substantial likelihood that the accused will, if he is released from custody, commit criminal offence or interfere with the administration of justice”. The appellant concedes, quite properly in my opinion, that danger or likelihood that an individual will commit criminal offence does not in itself provide just cause for detention. In general, our society does not countenance preventive detention of individuals simply because they have proclivity to commit crime. The appellant accepts this proposition but submits that there is just cause for preventive detention where an individual who presents danger of committing an offence is already awaiting trial for criminal offence. ... Bail is not denied for all individuals who pose risk of committing an offence or interfering with the administration of justice while on bail. Bail is denied only for those who pose “substantial likelihood” of committing an offence or interfering with the administration of justice, and only where this “substantial likelihood” endangers “the protection or safety of the public”. Moreover, detention is justified only when it is “necessary” for public safety. It is not justified where detention would merely be convenient or advantageous. [10] The accused submits that he will attend court on February 12, and if alcohol can be eliminated from his life, that protection and safety of the public will not be an issue. [11] It should be noted that the accused received the benefit of conditional sentence in April of 2006 and in July was found to have breached the orders which formed part of the conditional sentence. He is now facing additional allegations of breach. Even though he was still bound by conditional sentence and was charged with another violent offence, which is alleged to have occurred in September, he was once again released from custody in October. This was followed by the allegation of yet another and more serious assault which has lead to Mr. Favel remaining in custody for the past three months. [12] I am satisfied based on the material before me that Mr. Favel’s continued detention at this time is necessary for the protection or safety of the public. In coming to this decision I put significant weight on Mr. Favel’s continued disregard of court orders and the fact that the number and severity of the assault incidents is increasing. [13] find that the accused has failed to meet the onus on him to justify that his detention in custody is not necessary and pursuant to s. 520(7)(d) of the Criminal Code his application is dismissed.

The accused brings an application pursuant to s. 520 of the Criminal Code for a review of the order denying him judicial interim release. HELD: The accused's continued detention is necessary for the protection of the public The Court puts significant weight on the accused's continued disregard of court orders and the fact that the number and severity of the assault incidents is increasing. The accused received the benefit of conditional sentence in April 2006 and in July was found to have breached the orders which formed part of the conditional sentence. He is now facing additional allegations of breach. Even though he was bound by conditional sentence and was charged with another violent offence, which is alleged to have occurred in September, he was once again released from custody in October. This was followed by the allegation of yet another and more serious assault which has lead to the accused remaining in custody for the last months.

e_2007skqb34.txt

CANADA PROVINCE OF NOVA SCOTIA 1201‑44336 IN THE SUPREME COURT OF NOVA SCOTIA TRIAL DIVISION BETWEEN: JOHN GIL ROLAND DUROCHER and DOROTHY MARIE DUROCHER DECISION HEARD BEFORE: The Honourable Mr. Justice Walter R.E. Goodfellow PLACE HEARD: Halifax, Nova Scotia DATES HEARD: September 11 and 12, 1991 DECISION DATE: September 25, 1991 COUNSEL: Ronald W. Burton for the Petitioner Kevin Coady for the Respondent CANADA PROVINCE OF NOVA SCOTIA 1201‑44336 IN THE SUPREME COURT OF NOVA SCOTIA TRIAL DIVISION BETWEEN: JOHN GIL ROLAND DUROCHER and DOROTHY MARIE DUROCHER Respondent HEARD: at Halifax, Nova Scotia, before the Honourable Mr. Justice Walter R.E. Goodfellow, Supreme Court of Nova Scotia, Trial Division, on September 11, 12, 1991. DECISION: September 25, 1991 COUNSEL: Ronald W. Burton for the Petitioner Kevin Coady for the Respondent portion of the schedule on pages 2‑3, and under the heading "Life Insurance (Mrs. Durocher)", was not included in the decision, and is as follows: Husband Wife Life Insurance (Mrs. Durocher) Life Insurance (cash surrender value) $1,500.00 Life Insurance (Accumulated Dividends) 2,055.68 -and- the heading "Life Insurance (Mr. Durocher)" was not included in the decision and should follow immediately after the amount "$2,055.68" Halifax, Nova Scotia October 15, 1991 1991 S.H. No. 7744 IN THE SUPREME COURT OF NOVA SCOTIA TRIAL DIVISION BETWEEN: CANADIAN IMPERIAL BANK OF COMMERCE, body corporate and EDWINA SIMON and ALEX G. SIMON Defendants DECISION OF TIDMAN, J. 1990 1201‑44336 IN THE SUPREME COURT OF NOVA SCOTIA TRIAL DIVISION BETWEEN: JOHN GIL ROLAND DUROCHER and DOROTHY MARIE DUROCHER Respondent DECISION OF GOODFELLOW, J. CANADA PROVINCE OF NOVA SCOTIA 1201‑44336 IN THE SUPREME COURT OF NOVA SCOTIA TRIAL DIVISION BETWEEN: JOHN GIL ROLAND DUROCHER and DOROTHY MARIE DUROCHER Respondent HEARD BEFORE: The Honourable Mr. Justice Walter R.E. Goodfellow PLACE HEARD: Halifax, Nova Scotia DATES HEARD: September 11 and 12, 1991 DECISION DATE: September 25, 1991 COUNSEL: Ronald W. Burton for the Petitioner Kevin Coady for the Respondent CANADA PROVINCE OF NOVA SCOTIA 1201‑44336 IN THE SUPREME COURT OF NOVA SCOTIA TRIAL DIVISION BETWEEN: JOHN GIL ROLAND DUROCHER and DOROTHY MARIE DUROCHER Respondent Goodfellow, J.: divorce and matrimonial property hearing was held on September 11 and 12, 1991. At the conclusion of the hearing and oral argument, divorce judgment was granted based on my finding that there was no possibility of reconciliation with permanent breakdown of the marriage as evidenced by the parties having been living separate and apart for at least one year prior to the date of the hearing. The parties were married the 29th of December, 1960 and separated the 2nd of August, 1989. There were two children of the marriage and both daughters are adults, have left home, and are married. The parties executed separation agreement dated the 3rd day of August, 1989. The petitioner seeks incorporation of the terms of this agreement in the corollary relief judgment and the respondent seeks to retain the property division in the separation agreement with the agreement to be set aside in respect to the maintenance agreed upon with an increase from $600 per month to $1,200. As was indicated by Mr. Justice Hallet in Ryan v. Ryan (1981), 43 N.S.R.(2d) 423 the starting point in family matter is to appreciate the position of the parties under the Matrimonial Property Act before proceeding with the matter of maintenance. Such course is essential where there are allegations of duress, undue influence, and unconscionability. The result of the division will normally, as it does here, shed light on these questions. Mr. Durocher advances the following as the division of assets as of the date of the agreement. Matrimonial Assets Husband Wife Matrimonial home (net equity) NIL $65,000.00 Furniture, Appliances and other Household Effects 1,000.00 $14,800.00 Cash 150.00 1,150.00 Life Insurance (Mrs. Durocher) Husband Wife Life Insurance (Approximate Cash Surrender Value Accumulated Dividends) 1,200.00 Motor vehicle $1,100.00 Pension $44,686.00 Debts Joint Account, Bank Loan, Overdraft Visa Card on this Account ($6,200.00) Credit Cards ($5,000.00) TOTAL $40,836.00 $80,605.68 Mrs. Durocher disputes the valuations placed upon the furniture, cash, motor vehicle and debts assumed by Mr. Durocher. During the course of the trial she acknowledged that there existed Registered Retirement Savings Plan in her name which she deregistered after the separation and also some Canada Savings Bonds which were cashed in and the proceeds turned over to her after the separation. The parties have agreed that the additional benefit to Mrs. Durocher for these two items, after‑tax, is in the amount of $1,600. In addition, Mrs. Durocher claims that an indebtedness to her mother in the amount of $9,000 should be taken into account in the division of matrimonial assets and liabilities. No appraisals were submitted with respect to the furniture, appliances and other household effects as the parties had hoped, and to some extent expected to reach agreement. They only realized no agreement was possible when it was too late to obtain appraisals in time for the trial. This requires the court to grapple with the value of such. However before doing so want to set out the terms of the separation agreement that bear on these questions. The issues are (1) whether the separation agreement should be set aside whole or in part under section 29 of the Matrimonial Property Act of Nova Scotia or (2) in dealing with maintenance under the Divorce Act should the agreement be set aside based upon the position of Mrs. Durocher that it was entered into by her under duress or undue influence of her husband or alternatively that the maintenance award is of such low amount that it is unconscionable to bind her to such provision. The separation agreement is dated the 3rd day of August, 1989 and contains fairly standard recitals. The first paragraph provides the parties shall live separate and apart without interference, etc. of the other and paragraphs to 12, inclusive, are as follows: "3. The Husband and the Wife covenant and agree that: (a) The Husband will be solely responsible for repayment of the overdraft and loan (approximately $5,000.00) at the CIBC in Lower Sackville. (b) The Wife will be solely responsible for the repayment of all other debts (approximately $5,000.00) including the charge accounts at the Bay, Sears and Eatons. 4. The husband and the wife covenant and agree that the wife is presently not working and has physical disability related to arthritis. 5. The husband and the wife covenant and agree that the wife shall not make any claim against the husband's Employee Pension Benefits. 6. The husband shall pay to the wife, wife maintenance of $600.00 per month commencing on the 1st day of September 1989 and continuing on the 1st day of each and every month thereafter. When the husband reaches age 65 or upon the retirement of the husband, whichever first occurs, the wife maintenance payable to the wife shall be reduced to the amount of $400.00 per month. 7. Either spouse and/or his or her personal representative may make any payment or payments to the other spouse not provided for herein on an ex gratia basis but neither the act of nor the offering of any such payment or payments shall be construed so as to oblige the spouse or his or her personal representative to continue same, nor shall the fact or the offer thereof be pleaded, tendered or given in evidence or raised by way of estoppel in any legal proceedings between the parties. 8. The parties confirm that they own the Matrimonial Home at Lower Sackville with an approximate equity of $60,000.00 and that the husband shall convey his interest therein to the wife. (a) The parties confirm that the husband's gross salary is approximately $48,000.00 per year and that the wife is in receipt of disability pension of approximately $400.00 per month. 9. The husband and the wife covenant and agree that their [sic] is rented apartment in the Matrimonial Home with present rent of approximately $400.00 per month. 10. The husband and the wife agree that the husband uses Company provided automobile and that the wife shall have the only family automobile, 1982 Pheonix, transferred to her. 11. The parties hereto agree that they have each received fair and equitable share of the household furniture acquired during marriage. 12. The husband and the wife covenant and agree to retain their existing insurance policies with the existing Beneficiaries. There are number of standard paragraphs in the agreement dealing with what remedies are available in the event either party charges credit to the other, indemnification in such event, etc.. The only other paragraphs that are of relevance to the determinations required are as follows: "15. The parties agree that they will not change their existing Wills which make provision for each other and the adult children of the marriage. 20. Unless otherwise expressely [sic] provided herein, this Agreement and every covenant, provision and term herein contained shall enure to the benefit of and be binding upon the husband and wife and each of them and their respective heirs, executors, administrators and assigns. 21. The parties agree that the terms of this Agreement are full and final discharge of all claims and demands of every nature and kind whatsoever which either one of them has or hereafter can, shall or may have against the other of them, as provided under the terms of the Divorce Act of Canada, the Matrimonial Propery Act, and the Family Maintenance Act of Nova Scotia and any other statute, law or claim under common law or equity, excepting always any claim arising under this Agreement. 22. Each party to this Agreement hereby confirms that the foregoing has been entered into without undue influence or fraud or coercion or misrepresentation whatsoever and that each has had for the other the benefit of full and fair disclosure of material facts and has read the herein Agreement in its entirety and with full knowledge of the contents thereof and does hereto affix his or her signature voluntarily. Both parties acknowledge having been given the opportunity to obtain independent legal advice, without influence or involvement of the other, and by executing these presents confirm that this clause may constitute a full answer and complete defence to any claim of undue influence, coercion or lack of opportunity for independent advice. 23. The Husband and the Wife covenant and agree that this Agreement is not subject to review." Matrimonial Home The parties in paragraph of their agreement indicate the approximate equity in the former matrimonial home to be in the amount of $60,000 and for the purposes of this action they agree that it is $65,000. The difficulty is that they have confirmed to the court that in determining the equity no provision was made for taking into account the almost inevitable costs of disposition. Costs of disposition have been dealt with in Clancey v. Clancey (1990), 1990 CanLII 2602 (NS SC), 99 N.S.R.(2d) 147 paragraphs 19 and 20, and also Gomez‑Morales v. Gomez‑Morales (1991), 1990 CanLII 2349 (NS CA), 100 N.S.R.(2d) 137 in paragraphs 41 and 46. Mrs. Durocher's statement of property puts value on the matrimonial home of $95,000 and the estimated balance on the mortgage as of the date of separation is $28,257.01. The date of valuation for this case has to be the date of separation and some allowance must be made for the almost inevitable real estate commission and legal fees. have fixed the equity at the time of separation at $61,000. Mrs. Durocher's solicitor suggests in argument that should place valuation of $1,000 on Mr. Durocher's share of the contents and $4,000 on Mrs. Durocher's share of the contents. Mr. Durocher wishes me to place valuation of $14,800 on Mrs. Durocher share of the contents but it is clear on an examination of the list he tendered in evidence that he used different basis for valuing different assets. The proper valuation is their realistic value which generally means their value at auction after reasonable notice. Mr. Durocher valued number of items such as china (wedgewood), silver, crystal and Royal Dalton figurines, etc. at their replacement cost and in that regard he is in substantial error. On the other hand Mrs. Durocher values these at such limited amounts that one would be tempted to purchase them from her at her figures sight unseen. do not propose going through each item in their lists nor should they object if fail to do so. When parties are not able to agree on value of such things as furniture and contents they can expect to be left with but the best estimate of judge through fair measure of ball parking and questimate. Recognizing the major error on the part of Mr. Durocher find that the value of the furniture and effects retained by Mrs. Durocher is $6,000 and the value of furniture and effects retained by Mr. Durocher is $1,000. have placed no value on Mrs. Durocher's jewelry nor have placed any value on the additional items retained by Mr. Durocher namely, two sets of golf clubs, one record collection, one guitar, an adult movie collection and tools. Under the Matrimonial Property Act of Nova Scotia there are matrimonial assets and exempt assets and all of these items come under the exempt category pursuant to section 4(1)(d) "reasonable personal effects of one spouse". Cash With respect to the figures on cash am going to delete all reference to these figures in my final determination on the division. Mr. Durocher had responsibility to attend to the accounts outstanding until the maintenance commenced the 1st of September. He left the premises on the 12th of August, 1989 and there was confusing evidence with respect to the additional funds he provided. The $155 Mrs. Durocher received should be treated as going to continuing accounts such as heat, electricity, water, etc. for the running of the matrimonial home and although it is clear that Mr. Durocher provided some funds to his daughters, think it is appropriate to wash out any credit for cash to cover the bills that accept Mrs. Durocher paid, some of which, such as the electrical account, would be for period prior to the one month period from the date of the separation agreement to the date of the first maintenance payment. Life Insurance With respect to life insurance we have the specific figures in evidence. Exhibit at TAB shows the 1990 balance at $2,375.80 as of April 5, 1990 with the previous balance April 5, 1989 of. $2,055.68. fix the balance outstanding as of the date of separation at $2,100. With respect to Mr. Durocher's insurance policy found at Exhibit 1, TAB 8, net value as of March 20, 1991 of $1,469.01 and would fix its value as of the date of separation at $1,300. Motor Vehicle With respect to the motor vehicle there is evidence that Mrs. Durocher sold the motor vehicle for $100 but turned down prior offer of $200 for the motor vehicle. In the circumstances cannot agree with the $1,100 valuation placed on it by Mr. Durocher, however, also feel Mrs. Durocher ought to have explored utilizing the vehicle as trade in. Doing the best can give it valuation at the time of separation of $300. Pension By agreement the pension particulars from 3M Canada were admitted in evidence and are at Exhibit 1, TABS and 6. The parties have agreed to value the pension on its capitalized value as of August 3, 1989 of $44,686. Mrs. Durocher cannot object to this valuation because normally the capitalized value is the highest dollar figure you can give to the present value of postponed pension. Mr. Durocher's pension appears to be non‑contributory and also that he may not have any entitlement until he reaches age 55. RRSP and Canada Savings Bond The parties agree that Mrs. Durocher received, after separation, after‑tax benefit from these two items of $1,600. Debts The parties in paragraph of their separation agreement acknowledge that they each took responsibility for approximately $5,000 indebtedness. The evidence supports conclusion that this is reasonably accurate and find that each party assumed $5,000 of matrimonial indebtedness at the time of separation. have already addressed the additional $1,000 indebtedness incurred by Mrs. Durocher for household accounts under the heading of cash. Family Debts The parties, during their marriage, received financial assistance from Mrs. Durocher's mother, Mrs. Lovett, and as is shown by Exhibit 4, on one occasion the parties borrowed funds to pay off balance then outstanding to Mrs. Lovett of $1,200. The indebtedness of the $1,200 was source of friction between the parties because it related to the acquistion by Mrs. Durocher of motor vehicle entirely on her own without consultation with Mr. Durocher. He had assumed the indebtedness was retired and was very much shocked when his wife advised him at the time of her uncle's death that there was still $1,200 owing to Mrs. Lovett. Mrs. Durocher gives evidence that, in her view, at the time of separation there is indebtedness to her mother of $9,000 incurred over period of time. It is not unusual for the parents of parties to divorce to have provided financial and other assistance throughout the marriage, often with measure of understanding that if and when the parties are able to pay it back that they could or should do so. Rarely do you find any written contract clearly establishing an enforceable loan and what constitutes an enforceable loan is question of fact in each case. There is an onus upon one who wishes to establish that financial assistance from parent should be treated as matrimonial indebtedness. Generally speaking, in the absence of anything in writing or clear evidence of intent by the parent to enforce repayment, such only raises moral obligation of repayment. In this case have difficulty concluding how the $9,000 figure was reached. It is clear that all of this arrangement was one between daughter and mother. Mrs. Durocher clearly indicates that she wants to repay her mother but acknowledges the high improbability of that occurring unless she comes into funds by way of selling her home. Even then have grave reservations that Mrs. Lovett would seek or retain any payment of the assistance she provided to the family through her daughter. In addition, the indebtedness, if it is enforceable, may well be entirely or in part statute barred from collection. make no finding that affects what, if any, rights Mrs. Lovett has to claim and seek recovery of this indebtedness but merely find that it is not an indebtedness that should take into account in determining the division of matrimonial assets and liabilities at the time of separation. In my view its recovery is so unlikely that to take it into account would likely mean windfall to Mrs. Durocher. Summary Husband Wife Matrimonial Home $61,000 Motor vehicle 300 Contents 1,000 6,000 RRSP CSB 1,600 Pension $44,686 Husband Wife Life Insurance 1,300 2,100 $46,986 $71,000 Less Debts 5,000 5,000 TOTAL $41,986 $66,000 38.89% 61.11% It should be noted that Mrs. Durocher receives assets in being and Mr. Durocher's main asset is the pension which he may or may not some day receive. In any event, Mrs. Durocher has received substantial unequal division of the matrimonial assets in her favour. MATRIMONIAL PROPERTY ACT Mrs. Durocher seeks an order setting aside the separation agreement so as to increase the maintenance provision and at the same time retain the asset division in her favor. The Matrimonial Property Act of Nova Scotia recognizes marriage contracts and separation agreements. It also provides jurisdiction to disregard any provision of marriage contract or separation agreement where, in the opinion of the court, it is in the best interest of child to do so (section 26). In addition, section 29 of the Matrimonial Property Act provides: "Harsh or Fraudulent Contract or Agreement 29. Upon an application by party to marriage contract or separation agreement, the court may, where it is satisfied that any term of the contract or agreement is unconscionable, unduly harsh on one party or fraudulent, make an order varying the terms of the contract or agreement as the court sees fit. 1980, c. 9, s. 29." An action under the Matrimonial Property Act is separate action. It may be, as is the case here, combined with divorce petition in one proceeding. This represents joinder of actions as permitted under Civil Procedure Rule 57.04 and it does not confer or transfer any jurisdiction one from the other. The asset division achieved by Mrs. Durocher under the separation agreement is far from being unconscionable, unduly harsh or fraudulent. It is an extremely fair and indeed an unequal division in her favor. If the court were to set aside the separation agreement it would find that there are no factors that have been established under section 13 of the Matrimonial Property Act to warrant other than an equal division of matrimonial assets. Section 29 of the Matrimonial Property Act cannot be utilized to vary maintenance provision, jurisdiction for which lies soley under the Divorce Act of Canada. Chief Justice Glube in Fanning (Christian) v. Fanning (1990), 1989 CanLII 1482 (NS SC), 24 R.F.L.(3rd) 135 granted variation of specific provision in separation agreement that permitted the husband to retain the matrimonial home with an equal division of the net proceeds if it were to be sold in the future. Chief Justice Glube concluded that such provision provided no certainty of distribution, and Mrs. Fanning's wait for her share could extend into infinity. The Chief Justice used section 29 and found such arrangement to be "unconscionable" or "unduly harsh" and proceeded to vary the clause of the agreement to provide date certain for division. Chief Justice Glube declined any change in the maintenance provisions and indicated any such change had to be based on the requirements of the Divorce Act of Canada as interpreted by the Supreme Court of Canada in trilogy of cases. Pelech v. Pelech, 1987 CanLII 57 (SCC), [1987] S.C.R. 801, R.F.L.(3d) 225, Richardson v. Richardson, 1987 CanLII 58 (SCC), [1987] S.C.R. 857, R.F.L.(3rd) 304 and Caron v. Caron, 1987 CanLII 59 (SCC), [1987] S.C.R. 892 and R.F.L.(3d) 274. POSITION OF SEPARATION AGREEMENT The philosophy of the trilogy of cases decided by the Supreme Court of Canada is that people should be encouraged to take responsibility for their own lives and their own decisions. The approach of the court has been to respect agreements. The statements of law that readily adopt are DiTullio v. DiTullio (1974), 1974 CanLII 581 (ON SC), 46 D.L.R.(3d) 66. "It is now well established that since the enactment of the Divorce Act, the authority of the Courts to deal with maintenance of wife, upon the granting of decree nisi although specifically provided for in written separation agreement, is beyond question, although the Courts are reluctant to do so. It has been repeatedly held that when separation agreement provides for maintenance, the Court should not amend such provision or lightly go behind the terms of that agreement unless the party requesting the amendment discharges the onus cast upon him to satisfy the Court that there exists on the evidence clear and compelling reasons and circumstances to justify the amendment." and from Dal Santo v. Dal Santo (1975), 21 R.F.L. 117 at page 120. "It is of great importance not only to the parties but to the community as whole that contracts of this kind should not be lightly disturbed. Lawyers must be able to advise their clients in respect of their future rights and obligations with some degree of certainty. Clients must be able to rely on these agreements and know with some degree of assurance that once separation agreement is executed their affairs have been settled on permanent basis. The courts must encourage parties to settle their differences without recourse to litigation. The modern approach in family law is to mediate and conciliate so as to enable the parties to make fresh start in life on secure basis. If separation agreements can be varied at will, it will become much more difficult to persuade the parties to enter such agreements." Our own Appeal Court in Silverman v. Silverman (1987), 1987 CanLII 132 (NS CA), R.F.L.(3d) 292 stated per Jones, J.A. approval of the above passage in Dal Santo, supra and went on to say at page 302‑303: "It seems to me that the provisions of the Matrimonial Property Act and the Divorce Act are compatible. The object of the provisions is to encourage matrimonial settlements. That policy cannot be carried out unless the courts are prepared to enforce such agreements provided separation agreements are consistent with that policy in providing adequate maintenance for the spouse and children having regard to all of the circumstances of the parties. The onus of proof of showing that the agreement is not in the best interests of the child is upon the party contesting the agreement. In the present case the agreement provided for all outstanding issues between the parties. The maintenance provisions cannot be separated from the overall settlement provisions of the agreement." Settlement is the only way to go in family law. The failure to reach settlement or the encouragement of parties to ignore settlements reached generally results in an enormous cost to the parties and this case is no exception. The cost is not to be measured in dollars and assets alone, although they are of great importance. The emotional cost can have serious adverse impact on the individuals and their relationships to others particularly their children. The costs to be paid warrants every reasonable effort to reach settlement and the courts must continue to take the approach of encouraging settlements and not lightly setting aside settlements that have been reached. INDEPENDENT LEGAL ADVICE There is no requirement In the Matrimonial Property Act of Nova Scotia that party have independent legal advice. In fact there is no reference to independent legal advice in our statute. In other jurisdictions, such as New Brunswick, you will find specific statutory provision which opens the door to reviewing domestic contract if the court finds that party did not have separate independent legal advice. The provisions of the New Brunswick Act read: "40. Subject to subsection 38(1) and section 41, where there is conflict between provision of this Act and domestic contract the domestic contract prevails. 41. The Court may disregard any provision of domestic contract ... (b) if the spouse who challenges the provision entered into the domestic contract without receiving legal advice from person independent of any legal advisor of the other spouse; where the Court is of the opinion that to apply the provision would be inequitable in all the circumstances of the case." Chief Justice Glube in Fanninq, supra dealt with the factual situation where there was no independent legal advice and concluded at page 145: "I find that in spite of the lack of "independent" legal advice the parties were fully aware of what had been negotiated between them and that the lack of such legal advice is not basis on which to overturn the whole of the agreement. The agreement "is not unconscionable in the substantive law sense, it should be respected" (Pelech, supra). It is not uncommon for one party to be less than eager for separation and this is often followed by reluctance, if not refusal, by that party to seek independent legal advice. Other situations develop where party does not wish to see lawyer for any number of reasons. No one has enough imagination to develop an exhaustive list of why some people do not wish to attend upon lawyer, but frequently there is concern for costs or reluctance to bear one's soul or viewing of one's attendance at lawyer's office as finality to be avoided o: the viewing of attendance at lawyer's office as an admission of failure in the marriage, etc., etc., etc.. The existence or absence of independent legal advice is to be weighed in each factual situation. It is still possible to determine the state of the individual even though independent legal advice was secured an( to determine at the time of signing the person was very much lacking in comprehension as occurred in Crouse v. Crouse (1989), 88 N.S.R.(2d) 199. The determination of whether person has an opportunity for independent legal advice and has exercised that opportunity is separate question from whether or not that person chose to conduct herself/himself in accordance with such advice. Mr. Durocher's evidence is that the marriage was going downhill in 1988 and in June of 1989 he was to attend convention. In his view it was not pleasure trip and he refused to take Mrs. Durocher. On his return he states that his belongings were moved out of the marital bedroom to the daughter's empty room and he treated this as banishment. It was around this time that he received call from the bank indicating that the overdraft they had maintained for years was now approaching $5,000 and that the bank was trying to get through to him but he had not responded to the calls and messages to his wife. Mr. Durocher indicates he went to the bank and closed out the account and told his wife he could not live that way. This was done the week before the separation agreement was signed and his evidence is that separation agreement was contemplated during the discussions that took place for several days prior to Mrs. Durocher signing the agreement on the 3rd of August. Mr. Durocher indicates that he offered his wife $400 month plus the property deal and that they reached agreement at the $600 level. When he gives this evidence he is in essence saying that negotiations in fact took place in the discussions leading up to the separation agreement and am inclined to accept his version and not the version of Mrs. Durocher that would indicate no discussions or negotiations whatsoever took place. Mrs. Durocher was asked with respect to the August 3rd date of signing of the separation agreement whether conversations about her husband leaving took place days before. She did indicate "yes, there was some". Mrs. Durocher says she cannot remember much of the weekend and she is not sure whether it was Monday or Friday that she "might have" called the mortgage man. am satisfied that she did call the mortgage man and in all probability it was on the Friday evening. She subsequently said that she thought this whole thing on the weekend, and her husband's problem, was related to the mortgage, the pressure of the mortgage, and the need to have lower payments. She said that it would ease matters and appease him to get it reduced and so she called Tom Copeland of the mortgage company. It is interesting and significant that she did not just tell Tom Copeland there was financial matter bothering everybody and she said clearly "I said to him my husband is planning on leaving". She went on to discuss with Mr. Copeland how far the mortgage should be reduced and believes he may have mentioned the figure $285 at that time. She received the advice of Mr. Copeland to get the property in her name and when she hung up she turned to her husband and told him that the bank manager said "to put it in my own name". Mrs. Durocher is certainly not lacking in independent action because on Monday she went in to see the bank manager and when the bank manager indicated to her that there had not been any change in the account she persisted and had them check to confirm that in fact there had been change in the account. Mrs. Durocher does agree that she telephoned the lawyer, Mr. Hines of the firm of Farwell Hines, on Tuesday to get the house deed in her name. She stated she called Mr. Hines because she had dealt with Mr. Hines on the mortgage and it is the only name that she knew. Mrs. Durocher indicates that when she attended at the office of Farwell Hines for her 3:00 appointment she was taken there by Mr. Durocher and she claims that she could see Mr. Durocher through the glass in the doors of Mr. Farwell's office. She says she told the lawyer she had lot of misgivings and that the lawyer told her "you do not have to sign it". Mr. David Farwell is member of the Bar of the Province of Nova Scotia and had been practicing, at that time, for 18 years. His practice is mainly in the field of real estate, wills, incorporations and collections. As rule his firm does not practice family law but sometimes is confronted with family law problems. When his firm has family law problem he usually refers the matter to solicitors who specialize in family law. He testified that many times they were asked to give independent legal advice and in family law, on occasions, his firm was asked to give independent advice. While members of his firm are not family law experts, family law is not foreign to them. Mr. Farwell testified that Mr. Burton, the solicitor for Mr. Durocher, telephoned him to inquire if he would give Mrs. Durocher independent legal advice. It is to be remembered that Mrs. Durocher made the appointment herself. What Mr. Farwell is referring to is the letter sending the separation agreement to him. Mr. Farwell received Exhibit 8, letter from Mr. Burton, which contained three copies of the separation agreement and apparently was delivered the 2nd of August, 1989. The letter anticipated Mrs. Durocher executing the agreement after which Mr. Durocher would sign the deed conveying his interest in the matrimonial home to Mrs. Durocher as her property. Mr. Farwell reviewed the separation agreement fully with Mrs. Durocher. Mr. Durocher's evidence is that his wife spent approximately one half hour alone with Mr. Farwell. Mr. Farwell cannot recall the tenure of his conference with Mrs. Durocher and Mrs. Durocher signed it in Mr. Farwell's presence. Mrs. Durocher's signing was witnessed by secretary in Mr. Farwell's office and similarly the secretary witnessed Mrs. Durocher's signature on the deed from both Mr. and Mrs. Durocher to Mrs. Durocher. Mr. Farwell took his secretary's affidavit of execution on the deed and also took the spousal affidavit of both Mr. and Mrs. Durocher. It would appear from Exhibit 7, the statement of account, that he prepared the deed, deed transfer tax and affidavits, and arranged the registration of Mrs. Durocher's deed. Mr. Farwell billed Mrs. Durocher for the independent legal advice (Exhibit 1, TAB 2) and this bill was paid by Mr. Durocher August 21, 1989. The bill for the deed, etc., was not, according to Mr. Durocher, paid by him. Mr. Farwell was asked if at the time of Mrs. Durocher signing the separation agreement if anything stands out, if anything was untoward and he answered "no, reviewed the agreement with my main concern that she understood it and that she had not been coerced or was under any threat". Mr. Farwell had never had any dealings with either Mr. or Mrs. Durocher before and had never met them before. He remembers their faces and recalls at the time Mrs. Durocher signed the deed that Mr. Durocher may have been in the reception area, but not in his office. Both Mr. and Mrs. Durocher gave evidence that Mrs. Durocher refused to sign the separation agreement and Mr. Durocher entered Mr. Farwell's office on request, at which time his exasperation was displayed and he said words to the effect "now we play hardball". The response from Mrs. Durocher was to the effect "I want the house" and she proceeded to execute the agreement as indicated above. She then proceeded to execute the deed. In addition to the foregoing there is the background of previous separation between the parties at which time they executed separation agreement. I find as a fact that Mrs. Durocher selected the firm of Farwell & Hines and that she did receive separate independent legal advice. REVIEW OF CASES SUBMITTED BY THE RESPONDENT Meunier v. Meunier (1988), 84 N.S.R.(2d) 86 Mr. Justice Davison accepted plea of non est factum and declared deed and separation agreement void. In that case the wife was held to have grade five level of education. There were two teenage children of the marriage. Mr. Justice Davison found the circumstances surrounding the execution of the separation agreement and deed to be bizarre. Early in the marriage the parties agreed verbally that if they ever separated the matrimonial home would be conveyed to their children and along the way this may have changed to be conveyed to the son. Mr. Meunier after the separation engaged lawyer whom he discharged shortly prior to trial. The lawyer's account described the preparation of the deed from Mr. and Mrs. Meunier to their son. The first draft separation agreement provided the house to their son. Mrs. Meunier was asked by her husband to attend at his brother‑in‑law's home to sign the deed and agreement and she thought what she was doing confirmed their verbal agreement. When she subsequently received her copy of the agreement from her husband's lawyer the second page was missing and when it was finally received paragraph dealing with the matrimonial home was entirely different than the one tendered in evidence by the husband as being the one she executed at his brother‑in laws. She received no consideration for conveying all her interest in the matrimonial home to her husband. In Maclntyre v. Maclntyre (1988), 80 N.S.R.(2d) 358 his Honor Judge Butler of the Nova Scotia Family Court set aside separation agreement on the basis that it was unconscionable and improvident. His Honor Judge Butler found that the husband took advantage of his wife. She was unemployed and was to receive lump sum of $750 after ten year marriage. The wife was not represented by lawyer and it was obvious that she did not fully understand, if at all, what she was signing. She was at that time under doctor's care and took medication when she went to sign the agreement and was shaking and unable to control herself. Judge Butler found that the husband did not act in scrupulous and considerate manner respecting the rights of his wife and that Mr. Maclntyre made representations which she believed meant there was distinct possibility she might go to jail. She in fact pleaded with her husband not to report certain matters with respect to her income tax and in these circumstances Judge Butler had no difficulty in setting aside the separation agreement and ordering more appropriate maintenance of $300 per month. Graham v. Graham (1988), 83 N.S.R.(2d) 164. This is decision of the Nova Scotia Supreme Court Appeal Division in which Chief Justice Clarke, in giving the decision allowing the appeal, set aside kitchen table agreement. The husband had informed the wife that the assets of the marriage totalled $48,200 and since there were seven in the family she would be entitled to about one‑seventh, which he considered to be $8,000. He excluded land at Young's Cove and also mobile home, matrimonial asset, which he had recently acquired prior to the separation. He scribbled out an agreement to be final settlment for $8,000 and she was to bother him for nothing else. He then took his wife to his lawyer's office to sign the formal document incorporating the terms of the kitchen table agreement. On the same day she signed two deeds to real property conveying away her interest. The appeal was granted on other grounds as the trial judge had found the separation agreement to be "not enforceable" and this conclusion was concurred in by the Appeal Court. Crouse v. Crouse (1989), 88 N.S.R.(2d) 199. The wife gave evidence that she was basket case when the agreement was negotiated. Her husband was former RCMP officer who the trial judge found was good performer on the stand but just that, performer. The trial judge accepted the evidence of the wife that her thinking was dominated by her concerns with respect to access to her child. Such concern was induced in her mind by her husband's insistence to her that she would not likely be able to see her child as had previously been provided for her if she did not sign the minutes of settlement. Mrs. Crouse did sign the agreement in the presence of lawyer. Her lawyer had been just admitted to the Bar and he testified that Mrs. Crouse was quite confused most of the time and he found it difficult to get instructions and said Mrs. Crouse was constantly in tears. His evidence was that her emotional state was dominated by the fact that the interim custody hearing was coming up and she had concern for the extent of her contact with her son. Mr. Justice Hallett found that her state of mind was induced by the husband's insistence and persuasive dominance that he would succeed in court against her on the custody issue because she had left the home and that the husband had weakened her to the point where he was able to dictate the terms of the separation agreement, and he did just that. Currie v. Currie (1987), 75 N.S.R.(2d) 439. Macdonald, J.A. at page 446, paragraph 24: "In the present case Judge Ryan who heard and observed the parties came to the conclusion that the agreement was unconscionable. He also described it as being foolhardy, unequal and improvident. After considerable and anxious thought have concluded that Judge Ryan's decision to set aside the separation agreement should not be disturbed. This in my opinion is one of those very rare cases where it is right and just to set aside separation agreement." Each of these cases stand on their factual situation. RELIEF SOUGHT Mrs. Durocher seeks continuation of the separation agreement with substantial increase in the maintenance agreed upon. Her solicitor recognizes the need to overcome the onus in law that arises once you have entered into written agreement. Mrs. Durocher seeks to have the agreement set aside based on "duress", "undue influence" or that the maintenance provision is "unconscionable". Mr. Durocher seeks incorporation of the separation agreement in the corollary judgment and no other terms. have already indicated that if the agreement is set aside the factual situation would require an equal division of the matrimonial assets with the probable consequence that Mrs. Durocher's home would have to be sold. On an equal division basis the substantial allowance for the pension value would be removed from the husband's asset column and replaced by an order under the Pension Benefits Act. This would result in substantial payment by Mrs. Durocher not only to deal with the unequal division as it presently exists but also to cover the substantial increase in the unequal division if the pension were treated under the Pension Benefits Act. There is no indication of any capacity by Mrs. Durocher to raise such an amount making it almost certain that she would lose her home. will not recite at great length evidence advanced by Mrs. Durocher in support of her claim of "duress", "undue influence" and "unconscionable". Mrs. Durocher says theirs was traditional marriage with her husband as the head of the household. Mr. Durocher would not concede that it was traditional marriage although he does in the agreement acknowledge her entitlement to maintenance and that it will likely be payable for the rest of her life. Mr. Durocher does not wish to cede the point because of the added dimension of ill health for many years suffered by Mrs. Durocher requiring greater effort in domestic and child rearing areas by Mr. Durocher. Nevertheless, conclude that this marriage was traditional marriage in the basic sense that the wife was the homemaker and the husband the provider. Mrs. Durocher conceded that her husband was good provider. She says she was dominated physically, emotionally and financially by her husband which should result in the separation agreement being set aside. Although traditional marriage, Mrs. Durocher was not without her own independence. She has been active throughout the marriage in the Catholic's Women's League, and although she says he allowed her to go to church would not draw the conclusion that her church activities required the approval or consent of her husband. Mrs. Durocher worked outside the home in her chosen profession of nursing as C.N.A. until her health precluded continuation. Mrs. Durocher lead an active life outside the home in her church and community. She has been Brown Owl, head of brownie pack, taken sewing courses, quilting course, and for three years she took evening courses such as biology. She has taken decorator's course and has been active in the Liberal Association and the Sacred Heart Society. These outside activities tend to mitigate against the suggestion of sheltered, dominated life. Mrs. Durocher admits that her husband's pay cheque went into the joint bank account and she was in charge of the finances. Sometime prior to the separation it was Mrs. Durocher that organized the accelerated payment program on the mortgage. Mrs. Durocher was asked "who made the decisions in the household?" and she responded that "usually we made them together lot if it regarded the children, the daughters and things we made them together". She went on to say "often he instructed me to do things". The latter part, from my observation, was an after thought and assess that they did in fact make lot of decisions after joint consultation. While the marriage was in many respects traditional one in the sense of primary duties and functions, the husband working outside the home and the wife working inside the home, there was not the level of domination that is being suggested and there was far more consultation and mutuality in their lives than perhaps even Mrs. Durocher recognized. When asked to give examples of domination she used an example some years ago she wanted to go skating and her husband had some objection, but it is interesting enough to note that she went ahead skating. When pressed for examples she said that when she had her 21st birthday her husband was away and she went to bar. When her husband came home he did not like it and had fit. do not think her examples were of much weight in supporting her allegations of domination by her husband throughout the marriage. Her allegation of physical violence and fear of physical violence was not substantiated by the evidence. Not only do find her evidence on the claims of "undue influence", "duress" and "unconscionability" limited, but the evidence she did give was clearly magnified. With respect to her allegation of alcohol abuse by Mr. Durocher she was frequent attender at Alanon and at AA meetings and had received directions and assistance on this subject from her social worker and family therapist Stella Girard. Mrs. Durocher did admit in cross examination and agree with her when she said "I have problem with alcohol, it bothers me, it does not bother him". While think Mr. Durocher's evidence of his frequency and quantity of consumption of alcohol is somewhat minimized by him, nevertheless the real problem was that Mrs. Durocher has fixation about alcohol. When she described his relationship with alcohol as "scary" find this to be gross exaggeration of the situation. Mrs. Durocher is progressing in the treatment and counselling she receives from Stella Girard and Dr. Curtis for her multiple personality disorder which was finally diagnosed. Mrs. Durocher originally went to Stella Girard for family counselling arising out of an argument over furniture and she continued to see Stella Girard with the focus having shifted to her emotional difficulties arising out of having been sexually abused as child. Stella Girard sought the assistance of Dr. John Curtis, psychiatrist with sub‑speciality of multiple personality disorder. Dr. Curtis saw Mrs. Durocher once prior to the separation and his two medical reports are on record. He has found that Mrs. Durocher has at least six personalities. In his second report of August 31, 1991 Dr. Curtis states "by no means do wish to imply that she is unable to advise legal counsel or that in any way she will misunderstand what she is told under ordinary circumstances". He went on to say that it is one of the basic findings in people with multiple personality disorder that they have suffered severe sexual abuse as child. Dr. Curtis indicated that Mrs. Durocher, subsequent to the first session he had with her, admitted to him that she had lied through her teeth. This apparently can be one of the many stages in multiple personality disorder. Neither Stella Girard nor Dr. John Curtis had any professional contact with Mr. Durocher nor did they contact or consult with the psychiatrist upon whom Mr. Durocher was attending Dr. Malaviarachchi. I find that Mrs. Durocher has failed by a fairly wide margin to establish on a balance of probabilities that "undue influence" or "duress" existed at the time she signed the separation agreement. also find that taking the separation agreement in its totality that it is not "unconscionable". Although not necessary to my finding that the agreement stands, it may be helpful to the parties to comment on Canada Pension Plan Security and their finances. CANADA PENSION PLAN SECURITY Mrs. Durocher will continue to have the security of her income producing home in which her equity will build with every mortgage payment. Her home will, in the normal course of events, likely provide her with considerable security in later years. This, coupled with her entitlement to continued maintenance, her index Canada Pension Plan Disability Benefits and her London Life Insurance payment, addresses her need for security. Security is or can be component of maintenance and both lawyers and judges have tended to overlook this factor. The 1985 Divorce Act for the first time specifically, by statute, included in the objectives for maintenance the need for the court to consider the economic disadvantage of marriage breakdown and this should have brought about greater emphasis on the security component of reasonable maintenance. Research and the statistics that are available disclose beyond question the the majority of female spouses in traditional marriages suffer serious economic disadvantage, if not impoverishment, after divorce. The words of Galligan, J. in the 1971 case of Moynes v. Moynes and DeJong, R.F.L. Vol. 245 are exclusive of the reference to conduct of the parties valid today. Galligan, J. said at page 247: "It is my opinion that the wife is entitled, taking into account her owns [sic] means and ability to work and her husband's means and ability to work and the conduct of the parties, to an amount which would enable her, within reason, to live in reasonable comfort and security. feel that, if possible in the circumstances of the case, an allowance for maintenance should enable the petitioner to attempt to make some sort of reasonable arrangements for her future security. Support for this view is found in the judgment of Scott L.J. in Acworth v. Acworth, [1943] P. 21, [1942] All E.R. 704," The parties standing under the Canada Pension Act is an important consideration for courts to take into account in dealing with cases where the capacity exists to address the need for security. In the absence of provincial legislation authorizing waiver of the division of Canada Pension Plan credits each party is entitled to an equal sharing of such credits from the date of marriage to the date of separation. Attempts to avoid this social safeguard for divorced and separated spouses in agreements and minutes of settlements are, in my opinion, void. Counsel would assist considerably if they could provide the actual specifics of Canada Pension Plan division of credits, and while there is to be. an equal sharing there are cases such as this that require careful examination of where one party's disability pension fits into the scheme of division. Quite probably Mrs. Durocher will find that her entitlement to an equal division will have some adjustment for the period of her credits that she received her disability entitlement. In addition it appears that Mr. Durocher's pension entitlement will be reduced by his Canada Pension Plan entitlement. The statement from his company seems to indicate deduction from his pension could be to an amount equal to the benefits he will receive from Canada Pension Plan. In any event, am simply trying to stress the need to address the requirement of security particularly in long traditional marriage and that the courts should be provided with the specifics of Canada Pension Plan pension entitlement for both parties. FINANCES Mr. Durocher's employment income has been as follows: 1987 $54,404.19 1988 $51,852.35 1989 $49,104,84 1990 $48,179.00 Mr. Durocher testified he was paid on base salary with an incentive plan. In the past the incentive plan could reach $10,000 to $12,000 per annum. Last year it was approximately $228 and this year to date it is $118. Traditionally the next two quarters of the year are bad. His statement of financial information indicates basic salary for 1991 of: 1991 $42,632.40 He anticipates sharp reduction in his gross volumn of sales starting this November. For the purpose of this action find his present income to be gross of $42,700. Mr. Durocher resides in rental accomodation having turned over the matrimonial home to his wife. His budget is not out of line other than his combined entertainment and holidays might be considered little high. He has included legal fees as budgetary item and while they are reality of divorce they are not an appropriate item to be taken into account in the determination of maintenance and they should not appear in the statement of financial information. Legal fees are not an ongoing maintenance item and the extent and terms upon which they are incurred and paid are to be treated as exclusively outside maintenance considerations. Mr. Durocher does not own home or motor vehicle and when you take out the mandatory deductions for income tax, C.P.P., U.I.C., dues, life insurance (required under the agreement) and the maintenance payments required he does not have great deal of excess capacity, however, he can handle the one omission from the separation agreement which will deal with later. Mrs. Durocher has limited resources. She has Canada Pension Plan disability (which is indexed), London Life payment, rental income and maintenance. C.P.P. Disability 390.00 London Life 50.00 Maintenance 600.00 Rental Income 400.00 TOTAL $1,440.00 The rental income is presently received from her mother and is not treated as income for tax purposes. Her statement of financial information shows slightly higher basic shelter costs than Mr. Durocher. He presently pays $550 rent which is contemplated to go to $600 per month. Mrs. Durocher pays mortgage $285, taxes $123, fire insurance $32, heat $145 (seems bit high) and repairs of $80 for total of $655. She is of course increasing her equity on limited but continuing basis with each mortgage payment. Mrs. Durocher indicates church donations of $240 per annum which is little higher than her 1990 return would indicate. Her entertainment expenses are $165 per month and she lists debt payment which ought to have been retired by now and in fact she acknowledges the Sears account has been retired. In addition she uses some credit for items that appear separately within the budget. Mrs. Durocher has since the separation agreement purchased motor vehicle which was reasonable for her to do, but it must be recognized that its financing and operation is relatively heavy. Her budget indicates an income tax payment of $150 per month and based upon her 1990 return this should be closer to $50 per month. Other than these comments and the addressing of the omission in the agreement for drug coverage, her budget is also modest, however, she needs the drug coverage and cannot handle such an expense on the total means available to her. OMISSIONS DRUGS The parties acknowledge the health of Mrs. Durocher in the separation agreement. Her health has improved dramatically since 1975 when she went from several years being almost bedridden, to wheelchair, to wearing full corset, to canes and is now able to get about without any aids or assistance. She still needs drugs that can run to $150 per month. There was an understanding between them at the time of signing the separation agreement that she would give Mr. Durocher the receipts and he would reimburse her fully as he was able to obtain recovery from his employment drug plan. It is highly probable Mrs. Durocher will not be covered when she is no longer spouse but divorced person. conclude (despite Mr. Durocher's comments to the contrary) that neither of them directed their attention to the cessation of drug coverage occurring in the future and had they done so some provision to continue coverage would had been recognized as essential. Both parties operated as if it was going to continue. When parties enter into an agreement it is almost inevitable that some matters will be overlooked and they would normally have to live with such omissions. Where however, as is the case here, the omission is of such magnitude it must be addressed. Mrs. Durocher has no capacity to pay for drugs herself and Mr. Durocher has such capacity. will sign an order requiring Mr. Durocher to be responsible for drugs commencing the granting of the divorce judgment for Mrs. Durocher on the basis that he will reimburse her for actual receipts to the extent of $1,800 each twelve month period, the first of which will commence immediately following the cessation of coverage under his employment plan. This payment will not be tax deductible to Mr. Durocher, however, this does not preclude the parties from getting together and working out provision that will provide at no cost to Mrs. Durocher to the extent of $1,800 by payment of maintenance amount that will net her such coverage and quite possibly provide saving by way of tax relief to Mr. Durocher. In addition, Mr. Durocher shall have the option of exploring coverage through the payment of premium provided that the same basic $1,800 maximum on tendering receipts coverage is available to Mrs. Durocher. SUMMARY The corollary relief judgment will go forward incorporating the terms of the separation agreement dated the 3rd of August, 1989 and a provision addressing the requirement of drug coverage for Mrs. Durocher. hope there will be no need to address the matter of costs, however, the parties are entitled to make representations on costs. If they choose to do so require such to be in writing no later than Wednesday the 2nd of October, 1991. J. HALIFAX, Nova Scotia September 25, 1991

In this divorce action the petitioner sought to have a separation agreement entered into by the parties incorporated into the corollary relief judgment. The respondent sought to have the separation agreement set aside on the grounds of duress, undue influence or unconscionsability. The couple had a traditional marriage. The petitioner earned $48,000 per year. The wife did not work outside the home and suffered from severe arthritis. For the petitioner and incorporating into the agreement an added provision addressing the respondent's need for drug coverage, that there was nothing unduly harsh about the agreement which would justify setting it aside. The evidence indicated that the respondent had received independent legal advice and she did not establish that she had been dominated by the petitioner to the extent that her signature would have been induced by undue influence or duress. The court determined that the respondent would be far worse off if the agreement was set aside and an equal division ordered.

d_1991canlii4237.txt

CANADA PROVINCE OF NOVA SCOTIA 2000 Case #965266-268 IN THE PROVINCIAL COURT HER MAJESTY THE QUEEN versus Jessica Dale KNOX TRIAL DECISION HEARD BEFORE: The Honourable Judge Michael B. Sherar, JPC PLACE HEARD: Halifax Provincial Court #2 DATES HEARD: January 19th, 2001 CHARGE: That she, on or about the 17th day of October, 1999 at or near Halifax, in the County of Halifax, in the Province of Nova Scotia did Have the care or control of motor vehicle while her ability to operate motor vehicle was impaired by alcohol or drug, and thereby caused death to Joan Jeanette LITTLE, contrary to s.255(3) of the Criminal Code; And furthermore, AT THE SAME TIME AND PLACE AFORESAID, did unlawfully cause the death of Joan Jeanette LITTLE by criminal negligence in the operation of motor vehicle, contrary to s.220 of the Criminal Code; And furthermore, AT THE SAME TIME AND PLACE AFORESAID, did have the care or control of a motor vehicle while her ability to operate a motor vehicle was impaired by alcohol or a drug, and thereby caused bodily harm to Raelee KANE, contrary to s.255(2) of the Criminal Code. COUNSEL: Darrell H. Martin, for the Prosecution Stanley W. MacDonald, for the Defence Jessica Dale Knox stands charged that on the 17th day of October 1999, at or near Halifax in the County of Halifax, Province of Nova Scotia she did: Have the care or control of motor vehicle while her ability to operate motor vehicle was impaired by alcohol or drug and thereby caused death to Joan Jeanette Little contrary to s.255(3) of the Criminal Code; AND FURTHERMORE AT THE SAME TIME AND PLACE AFORESAID, did unlawfully cause the death of Joan Jeanette Little by criminal negligence in the operation of motor vehicle contrary to section 220 of the Criminal Code; AND FURTHERMORE AT THE SAME TIME AND PLACE AFORESAID, did have the care or control of motor vehicle while her ability to operate motor vehicle was impaired by alcohol or drug and thereby caused bodily harm to Raelee Kane contrary to section 255(2) of the Criminal Code. At the conclusion of the trial, crown counsel did not seek conviction on the second count of the information; i.e., criminal negligence causing death contrary to section 220, and that charge was dismissed. Viva voce evidence on the two remaining counts was heard on December 13th and 14th, 2000; the Court reserved decision at that time until January 19th, 2001. In the interim, counsel for both parties submitted post-hearing briefs to the Court for its consideration. Jennifer Purdy, 21-year old friend of the accused Jessica Dale Knox, testified that on the evening of October 16th, 1999 she and Jessica drove into Halifax from Terrence Bay in white Corsica motor vehicle. They arrived at the Green Street residence of Denise Hodge around 10:00 p.m. She did not recall taking alcohol to the premises or whether she and Ms. Knox consumed any alcohol at the residence before leaving to attend downtown establishment called the Pacifico. She estimated some six to seven people were in attendance at Ms. Hodge’s apartment, including Ms. Hodge and male friend from the United States called Phil. Ms. Knox’s car was left on Green Street and the group walked to the Pacifico. Ms. Purdy stated the accused had vodka and Sprite at the Pacifico. Ms. Purdy and Ms. Knox walked together to another nightclub called the Palace arriving at 1:30 a.m. and staying until close at 3:30 a.m. She stated she did not drink at the Palace but that the accused, Jessica Knox, ordered beer and set it aside, not drinking. After leaving the Palace they further walked to an area known as the ‘Pizza Corner’, had soft drink and pizza. After 30 to 45 minutes they hired rickshaw to take them back to Green Street. Part way to their destination Jessica Knox, in fact, propelled the rickshaw herself. According to Ms. Purdy, at no time to that point did Ms. Knox have any difficulty in speaking, standing or walking. Ms. Purdy and Ms. Knox arrived at Ms. Hodge’s apartment one-half hour after leaving ‘Pizza Corner’ and with some difficulty, gained admittance. Ms. Hodge met them and Jessica Knox woke up “Phil” who had been visitor of Ms. Hodge’s. Ms. Purdy further states that Phil and Jessica Knox each had beer from the fridge. Ms. Purdy and Phil continued to drink all through the early morning hours until 11:00 a.m. the next day. Ms. Purdy felt that Jessica Knox only had one beer and remembers her leaving the apartment at a.m., which was one-half hour after Denise Hodge had already left the apartment. Ms. Purdy didn’t leave with Ms. Knox because she didn’t know the former was about to depart. Ms. Purdy noted that she was with Jessica Knox all night and Ms. Knox did not sleep at any time they were together. Denise Hodge confirmed that Jessica Knox and Jennifer Purdy showed up at her apartment on Green Street on the evening of October 16th. She recalls they brought six-pack of beer with them. The seven persons at her apartment drank before they went downtown, but she can’t specifically recall if Jessica Knox drank alcohol there or later at the Pacifico. The group departed together for the Pacifico at 10:00 p.m. and Ms. Hodge left the Pacifico in the company of Phil and two others at 1:00 a.m., arriving home at 1:30 a.m. Ms. Hodge felt she herself was intoxicated upon her arrival home. She estimates that at 4:30 a.m. Jennifer Purdy and Jessica Knox arrived at her residence and one-half hour later she overheard voices in her living-room. Phil was having drink with Jessica Knox and Jennifer Purdy. Ms. Hodge tried to get back to sleep but was kept awake. Ms. Hodge observed Ms. Knox spill beer when she tried to sit in rather wobbly rattan chair. She later heard glass break and saw Jessica Knox picking up some glass in the kitchen. Ms. Hodge felt Ms. Knox was very tired and thought she had too much to drink, though she didn’t see her drinking. By 6:00 a.m. on the morning of October 17th Ms. Hodge had had enough of Ms. Purdy, Ms. Knox and Phil sitting around talking. Accordingly, Ms. Hodge left to see her own mother at 7:30 a.m. By the time Ms. Hodge returned to her apartment at 9:00 a.m., Ms. Knox and the white Corsica motor vehicle were gone. Later that morning, after receiving phone call, Ms. Hodge drove out to the Prospect Road to view the scene of the accident involving Ms. Knox. There is no evidence as to the whereabouts or activities of Jessica Knox between 8:00 a.m., when she left Ms. Hodge’s apartment, and 11:00 a.m., the approximate time of the car accident in which Ms. Knox was involved. It is admitted by the defence that the accused, Jessica Knox, was the operator of white Corsica motor vehicle bearing Nova Scotia license plate B2M 469. It is further admitted that as the result of her operation of that motor vehicle, the death of Joan Jeanette Little occurred on October 17th, 1999 and that also bodily harm was caused to Raelee Kane. At approximately 11:00 a.m. on October 17th, 1999 Carolyn McLeod was driving her mother towards Peggy’s Cove. Her mother was visiting Halifax to attend Carolyn’s graduation convocation. Carolyn McLeod noticed white car, some five car lengths ahead of her, go over the centre line of the highway by few inches for approximately 20 seconds. The white vehicle was not speeding, but upon crossing the centre line it came into collision with oncoming traffic travelling in the proper lane and thus causing an accident. The oncoming car went left into ditch. Prior to this, Carolyn McLeod had not taken any particular notice of the white car; it had not been weaving on the roadway nor had it been driven erratically. The road had been clear and the sun was not problem in driving. Ms. McLeod did not notice the driver of the white vehicle but when that vehicle crossed the centre line momentarily, it appeared that the operator of the vehicle did nothing to avoid collision. The road at this point had slight curve though she described the highway itself, as curvy in general. Ms. McLeod did not see the white car collide with second oncoming vehicle until she came up to the scene of the collision. Mrs. Mary Ann McLeod was passenger in the car driven by her daughter, Carolyn McLeod. She noted white vehicle, five car lengths ahead, drift over the centre line for ten seconds or possibly less and felt terrified there would be collision. She hadn’t noted any erratic operation of the white vehicle prior to seeing its tires going over the centre line, nor did she note any braking or swerving of the car to avoid oncoming traffic. She estimated that none of the vehicles involved, including the car she occupied, was speeding. Mrs. McLeod could not see the oncoming cars prior to the accident because of the distance they were ahead. She and her daughter attempted to render assistance to those injured. Mrs. McLeod noted that the driver of the white car appeared unconscious after the accident. Amber Rolfe was passenger in vehicle driven by her boyfriend. Her car was behind the McLeod vehicle travelling in the same direction outbound from Halifax on the Prospect Road. She knew that they were following two cars for period of time, but she was not concentrating on the road and was more interested in talking to her boyfriend. Her attention was drawn to the white car (the Corsica operated by Ms. Knox) when she noticed the driver gradually slump her head down to the right, slow movement consistent with somebody reaching for something. At that point, the white vehicle went over the centre line some one to four feet. The white car hit the first oncoming car, spun, hit the vehicle again and then hit second car. The oncoming cars were in the proper lane. Ms. Rolfe felt that the Knox vehicle went over the centre line as it was going around turn and not on straight portion of the highway. It is acknowledged that the first car hit by the Knox vehicle was occupied by Mrs. Joan Jeanette Little and that the collision caused her death. The second vehicle damaged by the Knox vehicle was operated by Ms. Raelee Kane, who suffered bodily harm as result. Ms. Kane was able to testify and stated she was the owner of Green Ford Escort, license number CRT 254. She was driving from Hatchet Lake to her grandmother’s residence in the company of her two young daughters. She indicated she had stopped at service station for five minutes at 11:00 a.m. Five or six minutes later, while she drove in her proper lane, she heard loud noise and noted something white coming towards her. Prior to this she had not been aware of any cars in front of her. The impact drove her vehicle into ditch on the opposite side of the highway. Ms. Kane’s two daughters sustained bruises. Ms. Kane suffered broken left jaw and left chest injury. She had surgery to drain her joint. She still takes physiotherapy for her jaw and chest and requires anti-inflammatory medications. Constable Gerry Todd, police officer for 24 years, was the accident investigator. He has had training in accident reconstruction. He attended the accident scene the day of the incident and noted the weather was clear and sunny and the pavement dry. From his observations, he concluded there was no indication of braking by the Knox vehicle prior to the point of impact. The collision took place on curve in the highway though he didn’t measure the degree of the curve. He estimated the contact point between the Knox and Little vehicles occurred 1.5 meters from the centre line in the lane properly occupied by the Little vehicle. Mr. Lawrence Chard inspected the three vehicles involved in the accident. He is certified mechanic and motor vehicle inspector for many years. In his opinion, no mechanical failure of any of the three cars caused or contributed to the accident; however, the Plymouth Caravelle, operated by the late Mrs. Little, had been badly rusted. He estimated the driver would have sustained less injuries were it not for the lack of structural integrity of the Little motor vehicle. Ms. Knox was transferred from the accident scene to the QEII Health Sciences Centre in Halifax in an unconscious state. Upon her arrival, she received medical attention. The parties agreed that the testimony of Jean Schneider, R.N., adduced during voir dire hearing reported in [2000] N.S.J. No.426 regarding the admissibility of certain evidence, could be admitted as part of the evidence of this trial. Nurse Schneider testified that on October 17th, 1999 she was nurse at the QEII Health Services Centre Emergency Department. At approximately 11:00 or 11:30 a.m., the department received word that at least one victim of motor vehicle accident would be arriving for treatment. Jessica Knox was admitted and the trauma team was called together. Nurse Schneider acted as the charting nurse for the team. Ms. Knox was unconscious and steps were taken to refit breathing tube in her to ensure she had good airway. Nurse Schneider gathered five vials and passed them to Nurse Dawn Gavin who drew blood from Ms. Knox, filling the five vials. Nurse Gavin indicated that she cleaned the area where she pricked Ms. Knox’s skin to obtain the blood sample with 70% Isopropol alcohol swab. Ms. Knox’s arm was still wet when she made the single puncture. She then drew five tubes of blood. It took approximately 30 seconds to minute in total time. She was of the opinion that she filled the red‑stoppered vials last. The parties agreed that Nurse Schneider recorded the taking of blood from Ms. Knox at between 12:10 and 12:15 p.m. on October 17th and that the vials of blood she sent for analysis all contained samples of the blood of Jessica Knox. Nurse Schneider immediately requisitioned series of tests on four of the vials. Later, upon approaching Ms. Knox who was still unconscious, Nurse Schneider noticed smell of alcohol. Upon informing one of the attending physicians of her observation, request and requisition was made to the hospital laboratory personnel to do an alcohol analysis of the contents of the remaining red‑stoppered vial of blood at approximately 1:30 p.m. Patrick Higgins, laboratory technician with the QEII Health Science Centre, testified he has held that capacity at various Halifax hospitals for the past 22 years. On October 17th, 1999 he was the laboratory technician on duty and he carried out an analysis of Ms. Knox’s blood. He had extensive experience in carrying out ethanol analysis using the equipment in the laboratory. The reading produced as result of the test was 47 millimoles of ethanol per litre of blood. He was of the opinion that the presence of 70% Isopropol alcohol solution on the skin at the site of the blood extraction would produce very low interference in the test results. He noted that the test was specifically calibrated to detect ethanol as compared to alcohol generally. His review of the control equipment and materials used in the testing process indicated the test was conducted properly because the results were inside the expected range. Notes from the testing procedure indicated: “Ethanol values up to mmol/l may be due to background interferences. Values up to mmol/l are not conclusive indicia that the person has ingested alcohol.” The final crown witness was Lori Ann Campbell, civilian employed in the RCMP Forensic Lab in Halifax. Counsel for both parties agreed that she had the requisite training and expertise to offer opinion evidence in the areas of consumption, absorption and elimination of alcohol in the human body and the effect of alcohol on the body. Ms. Campbell interpreted the Hospital Laboratory Report of 47 millimoles of ethanol per litre of blood to be the equivalent of 216 milligrams of alcohol per 100 millilitres of blood serum which she shortened to 216 milligrams per cent. The parties agree that the hospital laboratory analysis is derived from blood serum rather than whole blood. Ms. Campbell was presented with hypothetical containing the following facts: blood was drawn from person at 12:10 p.m. to 12:15 p.m. and no alcohol had been ingested within one-half hour prior to an accident occurring at 11:10 a.m. to 11:25 a.m., and no alcohol had been ingested after the accident and prior to blood being drawn, and blood serum was analyzed rather than whole blood. Based upon those hypothetical facts, Ms. Campbell offered the opinion that the blood alcohol level of person at the time of the accident would be between 180 to 220 milligrams per cent. In her opinion, person who operated motor vehicle with that amount of alcohol in their body would be intoxicated. She was of the further opinion that such person would exhibit slurring of speech; they would be staggering, unsteady. The vehicle would be weaving. The operator would have double vision, blurred vision and their peripheral vision would be impaired. If that person was suffering from lack of sleep, the amount of impairment would be more pronounced and compounded. It was furthermore Ms. Campbell’s opinion that impairment by alcohol ingestion for most persons starts at 20-30 milligrams per cent An experienced drinker would experience impairment at 50 milligrams per cent, but even chronic drinker would exhibit impairment if their alcohol ingestion amounted to ‘90 to 100' milligrams per cent. On cross examination, Ms. Campbell provided the opinion that the average elimination rate for alcohol in human body was from 10 to 20 milligrams per cent per hour. Exhibit #6, the Hospital Toxicology Report on Ms. Knox, purported to contain two test results: (a) at 1310 hours the reading was 47 millimoles per litre; and (b) at 2140 hours reading of less than millimole per litre, which was within the range of background interference for the test equipment itself. Ms. Campbell agreed that all things being equal, that would result in an elimination rate of 22.5 milligrams per cent per hour if the alcohol was eliminated at the time of the second test; i.e., 21:40 hours. If the alcohol had been eliminated earlier, then of course greater elimination rate would have to be assumed, putting Ms. Knox’s elimination rate further outside that of the population norm. It was suggested by defence counsel that Ms. Knox’s elimination rate was either abnormal or that the initial analysis of her blood alcohol was inaccurate. On redirect, Ms. Campbell indicated that blood transfusions and their timing may or may not have affected the later readings. Due to the paucity of information regarding the treatment given Ms. Knox in the intervening time between the initial blood alcohol test and the steps taken to obtain the second sample, recorded in Exhibit #6, very little if any weight can and should be given to the second reading. In point of fact, it is possible that the second sample may not be an analysis of sample of the blood of Ms. Knox, but rather of some other patient. In any case, based upon the evidence at trial, subject to cross-examination, and mindful of the decision of the Ontario Court of Appeal in R. v. Redmond (1990), 1990 CanLII 10971 (ON CA), 54 C.C.C. (3d) 273, it is the opinion of this Court that the initial reading of Ms. Knox’s blood alcohol level at 12:10 p.m. to 12:15 p.m. on October 17th, 1999 was accurately recorded as the equivalent of 216 milligrams of alcohol in 100 millilitres of blood. Counsel for the defence elected not to call evidence. The question remains what if any notice, can the Court adduce from the blood alcohol reading of Ms. Knox at 12:10 to 12:15 p.m. on October 17th, 1999 or the purported extrapolation of that blood alcohol reading back to the time of the operation of the vehicle by Ms. Knox at approximately 11:00 a.m. of the same day. The onus is on the crown to prove the elements of the remaining offences before the Court beyond reasonable doubt. Since the Accused has admitted to being the operator of the white Corsica motor vehicle at the time that vehicle came into collision with the vehicles operated by Joan Jeanette Little and Raelee Kane, the Court must determine if the accused was impaired by alcohol or drug in her ability to operate the white Corsica motor vehicle. In R. v. Stellato (1993), 1993 CanLII 3375 (ON CA), 78 C.C.C. (3d) 380, (the Ontario Court of Appeal) affirmed by the Supreme Court of Canada, 1994 CanLII 94 (SCC), [1994] S.C.R. 478, the Court held that the offence of impaired operation or impaired care and control of motor vehicle contrary to s.253(a) of the Criminal Code is made out by proof of any degree of impairment from slight to great. There is no requirement of proof of marked departure from normal behaviour. Impairment is an issue of fact which the trial judge must decide on the evidence. If evidence of impairment is so frail as to leave the trial judge with reasonable doubt, then the accused must be acquitted. In R. v. Andrews (1996), 1996 ABCA 23 (CanLII), 104 C.C.C. (3d) 392, the Alberta Court of Appeal reviewed the Stellato (supra) case in decision wherein leave to appeal to the Supreme Court of Canada was denied, p.106 C.C.C. (3d) vi. At p.399 of the Court of Appeal decision, Conrad J.A. states: Stellato approves the principle that conviction on charge of impaired driving can be founded on proof beyond reasonable doubt of slight impairment of the ability to drive. If the ability to operate motor vehicle is impaired (even slightly) by alcohol or drugs, it is not necessary that the degree of that impairment be marked. The Court must not fail to recognize the fine, but crucial distinction between “slight impairment” generally and “slight impairment of one’s ability to operate motor vehicle.” Every time person has drink, his or her ability to drive is not necessarily impaired. It may be that one drink would impair one’s ability to do brain surgery, or one’s ability to thread needle. The question is not whether the individual’s functional ability is impaired to any degree. The question is whether the person’s ability to drive is impaired to any degree by alcohol or drug. In considering these questions, judges must be careful not to assume that where person’s functional ability is affected in some respects by consumption of alcohol, his or her ability to drive is also automatically impaired. The corollary to that is the Court’s finding that where the proof of impairment consists of observations of conduct in most cases and where the conduct is slight departure from normal activity, it would be unsafe to conclude beyond reasonable doubt that the ability to drive was impaired by alcohol. In R. v. Laprise (1996), 1996 CanLII 6000 (QC CA), 113 C.C.C. (3d) 87, the Quebec Court of Appeal in case involving impaired driving causing death, considered how the crown could establish that the driver of motor vehicle was impaired: (a) testimony of witness as to the characteristics of the accused’s driving; (b) inferring the accused’s condition from the usual indicia of impairment such as smell of alcohol, glassy eyes or unsteadiness by the accused on his feet, inability to walk white line; or (c) results of breath, urine or blood test. At p.5 of the QuickLaw citation, the Court continues when referring to the test results: However, while such results may corroborate the observations of the police officer as to the cause of the decrease in one’s ability to drive, it does not permit on its own an inference as to the amount of alcohol consumed or its effects, except where an expert has established correlation between the result and the possible impairment of one’s faculties. The Courts do not take judicial knowledge of these facts (R. v. Thomas (1992), 1991 CanLII 3293 (QC CA), R.L.318). The Court further continued: It is clearly established that in cases of impaired driving causing death it is sufficient that the accused’s condition contributed to the smallest degree to the death. The crown need not demonstrate that the decrease in the accused’s ability to drive is the only cause of the victim’s death or the victim’s injuries. The most salient evidence the crown adduced was the blood alcohol reading taken from Ms. Knox’s body at the hospital close to one hour after the motor vehicle accident. The forensic crown expert was of the opinion that at the time of the taking of the blood sample from Ms. Knox’s body, she had reading equivalent to 216 milligrams of alcohol per 100 millilitres of blood. She attempted to extrapolate that reading back to the time of the motor vehicle accident. As previously noted, she assumed two facts as part of the hypothetical presented to her: (1) no alcohol had been ingested one‑half hour prior to the accident; and (2) no alcohol had been ingested after the accident and prior to the blood sample being drawn. The defence objects to the admission of the opinion of the forensic expert as to the blood alcohol in the body of the accused at the time of the accident because those underlying assumptions have not been proven by the crown. In similar case, R. v. English, [1982] A.J.#241 (1986), 1982 ABCA 198 (CanLII), 47 Alta.L.R.(2d), 372 (the Alberta Court of Appeal) was of the opinion: It seems to me to be fundamental that the party introducing opinion evidence based upon hypothetical facts has the burden of establishing those facts in evidence...having asked the witness to rest his opinion on that fact, it was for the crown to prove the fact, not for the accused to rebut it... The burden of proof of the foundation facts lies upon the party seeking introduction of opinion evidence... Since there was no evidence at the trial to prove the fact assumed, the expert evidence of extrapolation had no probative value. This is not to put upon the crown the burden of anticipating and refuting any defence that might be raised. It is simply to require the crown to prove the foundation of its own opinion evidence as prerequisite to that evidence having any probative value at all. Without that foundation, there was no valid opinion evidence to be met by the defence... It is not the law that party may present opinion evidence based on unproven facts and call upon the other side to disprove the assumption. In the present case there is no evidence as to the actions or whereabouts of the accused for some three hours prior to the accident. The crown witnesses did not even take note of the driving of the accused until some mere seconds before the collision occurred. There is no evidence to account for the pattern of alcohol intake of the accused for at least the three hours prior to the accident. It is possible that she ingested large amount of alcohol into her body within half hour of the accident which remained unabsorbed in her system at the time of the accident. With respect, however, to the consumption of alcohol by the accused subsequent to the accident and prior to the blood sample being taken, that appears to be highly unlikely. The first witnesses on the scene describe Ms. Knox as unresponsive and unconscious and she apparently remained so until the blood samples were taken from her body at the hospital. In R. v. Clark, [1995], S.J.#566 Gerein, J. of the Saskatchewan Court of Queen’s Bench, reviewed R. v. English (supra) and other decisions. She quoted with approval R. v. Abbey, 1982 CanLII 25 (SCC), [1982] S.C.R. 24 at p.46: “Before any weight can be given to an expert’s opinion, the facts upon which the opinion is based must be found to exist.” In addition, Judge Gerein reviewed R. v. Nelson (1982), 216 Sask. R. 391, where there also was lack of proof that there was no large consumption of alcohol immediately before the time of driving or no intervening drinking between the time of the driving and the time of the test. The Court of Appeal in Nelson (supra) determined the trial judge was correct in determining that since there was no basis in fact for two of the experts’ assumptions, then the opinion was not properly before the Court and of no evidentiary value. In the Clark (supra) case, the facts established that the accused had been drinking between 3:00 p.m. and 6:05 p.m. At 6:05 p.m. he was described as inebriated, but not stumbling. He was observed in store between 6:35 p.m. and 6:40 p.m. and described as drunk once again. He was seen to drive away from the store and an accident occurred at 7:20 p.m. some 31 kilometers from the store. No alcohol or alcohol container was found on the accused or in his car. The accused was removed from the scene to hospital and blood sample was taken. The crown was not allowed to introduce the evidence of an expert attempting to extrapolate the blood test results back to the time of the accused driving because the factual underpinnings of whether alcohol had been ingested by the accused within one-half hour prior to the driving had not been proven. similar result occurred in R. v. Reutow, [1992] 38 M.V.R. (2d) 189; R. v. O’Hara, [1989] O.J.#2675; and R. v. Bangs, [1992] O.J.#3734. Close to home in R. v. Lacey (1992), 111 N.S.R. (2d) 348, the Nova Scotia County Court upheld the determination of Judge Clyde MacDonald of the Provincial Court. An expert was required to interpret two breathalyzer readings made within 14 minutes of each other. The expert attempted to extrapolate backwards the breath test results, but admitted that he did not know whether the accused had consumed significant amount of alcohol within one-half hour prior to the time of driving. Accordingly, the opinion evidence was not allowed to be considered. Finally, in R.v. Snyder, [1997] N.S.J.#435, Her Honour Judge Crawford entered an acquittal where in that case the Court held there was no evidence before the Court to prove the expert’s assumption that the accused had not consumed alcohol in the half hour prior to his involvement in motor vehicle accident. Her Honour arrived at three conclusions upon reviewing many of the cases considered by this Court and previously cited herein. At p.7 of her decision, she concluded: (1) The burden is on the crown to prove all of the assumptions on which its expert opinion is based; (2) Proof can be by direct evidence or indirect evidence; for example, to the effect that any other assumption is such remote possibility or so unreasonable that it need not be considered; (3) Where there is neither direct evidence of such an assumption nor any evidence as to the remoteness or unreasonableness of the alternative assumptions, the crown will be taken not to have proven the assumption and the value of the expert opinion will be diminished accordingly. The second conclusion Her Honour reaches is based upon review of several cases wherein the crown has asked the expert to provide an opinion as to how much alcohol the accused would have had to ingest within one-half hour of the driving or accident (and thus be undigested at the time) which would correlate to the blood alcohol reading subsequently generated and at the same time produce result at the time of driving that would have the accused under the legal limit for alcohol consumption. If the quantum of alcohol based upon given evidence of the physical dimensions of the accused, etc. was unbelievably high, then the factual assumption could be proven by this indirect means. This Court does not have to take that possibility under consideration since that opinion evidence is not before the Court. The crown makes reference to the Ontario Court of Appeal decision in R. v. Grosse (1996), 107 C.C.C. (3d) at p.97, leave to appeal to the Supreme Court of Canada refused. The trial judge found it was “preposterous” that the defendant would have drank such huge amount of alcohol within 30 minutes of the impugned driving as determined by the expert to equate to an amount equivalent to the breath-test results. The Appeal Court held at p.104: In view of the circumstantial evidence that tended to demonstrate the respondent had not engaged in bolus drinking and the respondent’s unique position to offer an explanation, the trial judge was entitled to draw an adverse inference unfavourable to the respondent from his failure to testify to such an unusual drinking pattern. Once again that type of evidence is not before this Court. In R. v. Quiring, [1998] B.C.J.#2631, Justice Wilson in commenting on R. v. Grosse (supra), stated at p.11: accept that it is question of fact for the trier of fact to determine if the assumptions on which the opinion is based have been proven and that the onus is on the crown to meet that burden. There is no onus on the accused to adduce evidence to the contrary. In R. v. Dean (1992), 1992 ABCA 109 (CanLII), 37 M.V.R. (2d) 238, the Alberta Court of Appeal was asked to reconsider its earlier decision in R. v. English (supra) in determining the weight to be given to expert testimony in such circumstances in light of the R. v. Lavallee decision of the Supreme Court of Canada reported at 1990 CanLII 95 (SCC), [1990] S.C.R. 852. The Alberta Court of Appeal concluded at p.242: In the absence of any proof of the facts on which the expert opinion is based, no weight will be given to it. Equally if some proof of the hypothetical facts is offered by admissible evidence, then the question will be whether it is sufficient to meet the requirements for which it was called. Proof beyond reasonable doubt requires more than evidence intended to raise reasonable doubt. The balance of probabilities in civil litigation has its own requirements; in such case, the trier of fact will consider to what extent the hypothetical question has been proven and whether in the circumstances it is sufficient. [emphasis added] R. v. Livingstone, [1992] A. J. No. 967 (1992), 137 A.R. 179 is an example wherein the trial judge decided the defence had not raised reasonable doubt through the use of expert opinion since the facts needed for the basis of the defence expert were not established on balance of probabilities. In conclusion, with respect, this Court cannot give any weight to the opinion evidence tendered by the crown to prove beyond a reasonable doubt the extrapolated blood alcohol level in the body of the accused at the time of the accident. The remaining evidence which is admissible can be briefly restated. Ms. Knox was awake the entire evening of October 16th, 1999. She drank limited amount of alcohol starting at 10:00 p.m. that evening. It is questionable whether she had any alcohol before leaving friend’s home at 10:00 p.m. She had drink of vodka between 10:00 p.m. and 1:30 a.m. She purchased beer between 1:30 a.m. and 3:30 a.m., but did not consume it. She ate pizza and drank soft drink between 3:30 a.m. and 4:15 a.m. She returned to her friend’s residence at 4:30 a.m. and had beer. She was seen spilling that same beer or possibly another one. When last seen by witness at 6:00 a.m., Ms. Knox was tired and the witness thought Ms. Knox had too much to drink but did not see her drink alcohol. That witness left at 7:30 a.m. Ms. Knox left the premises at 8:00 a.m. and was not seen by anyone until 11:00 a.m. Ms. Knox operated motor vehicle unremarkably for period of time and was noted by witness to slowly slump to the right in the driver’s seat as her motor vehicle crossed the centre line of public highway. Ms. Knox took no corrective steps to brake or alter the direction of her motor vehicle as she came into collision with two oncoming cars within mere seconds of crossing the centre line. There was no mechanical failure of her vehicle which would have caused the accident. Ms. Knox was rendered unconscious at the time of the collision and remained so until later treated in hospital. At the hospital it was determined that at approximately 12:10 to 12:15 p.m. of the same day she had blood alcohol reading of 216 milligrams of alcohol per 100 millilitres of blood. In R. v. Ostrowski (1958), 1958 CanLII 102 (ON SC), 122 C.C.C. 196, 29 C.R. 109, the Ontario High Court of Justice determined that the Court is not entitled to take judicial notice that at certain blood alcohol level the accused’s ability to drive would be impaired. Lori Ann Campbell was of the opinion that even chronic drinkers would exhibit some impairment in their ability to operate motor vehicle if their alcohol ingestion amounted to blood alcohol ratio of ‘90 to 100' milligrams per cent. However, the Court has no admissible evidence before it as to the quantum of any alcohol that was absorbed in the body of Ms. Knox at the time of the accident. The Court has no evidence to determine what if any effect, the consumption of alcohol by the accused during the evening of October 16th and early morning of October 17th, 1999 had on the ability of the accused to operate motor vehicle. No opinion evidence is offered to suggest whether that alcohol would have been still affecting the accused in her ability to drive or whether it had been not only absorbed but possibly eliminated by the time that she was operating the motor vehicle. There is evidence that by the time Ms. Knox reached the hospital in the afternoon of October 17th, she had considerable amount of alcohol in her body but we do not know when that alcohol was absorbed and what effect, if any, that alcohol had on her ability to operate motor vehicle at 11:00 a.m., the time of the collision. Referencing once again R. v. Laprise (supra), how can the crown prove beyond reasonable doubt the impairment by alcohol of the accused’s ability to operate motor vehicle besides by the use of breath, urine or blood tests? Normally laypersons, as well as experts, can indicate to the Court their opinion as to the sobriety of another person Graat v. The Queen, 1982 CanLII 33 (SCC), [1982] S.C.R. 819 (S.C.C.) Those opinions must be based upon observation or deduction. No one has testified as to any of the usual indicia of intoxication on the part of Ms. Knox; i.e., glassy eyes, smell of alcohol, unsteadiness on her feet, bloodshot eyes, slurred speech at or near the time of the collision. The only evidence of smell of alcohol emanating from Ms. Knox was made by Nurse Schneider who approached the unconscious Ms. Knox at approximately 1:30 p.m., some two and half hours after the collision. It should be noted that Nurse Schneider had been attending the treatment of Ms. Knox from 12:10 p.m. onwards and had not noted any smell of alcohol prior to 1:30 p.m. The only witness who offered an opinion that Ms. Knox had too much to drink was Ms. Hodge. That observation was apparently made at 6:00 a.m. Ms. Hodge also stated that she did not see Ms. Knox drink and that she felt that Ms. Knox was very tired. Ms. Campbell, the forensic expert, stated that lack of sleep would exacerbate the effects of alcohol ingestion. However, there is no evidence of erratic driving or operation of the motor vehicle by Ms. Knox prior to the collision consistent with absorbed alcohol ingestion. The Court is mindful that the manner of driving need not exhibit marked departure from the norm. What is unusual about the driving was the momentary crossing of the centre line without any attempt to avoid collision. This action or omission on the part of Ms. Knox, was noted to follow her gradual slumping to the right while seated in the driver’s position of her car. Such slumping could be entirely consistent with fatigue; i.e., lack of sleep, with or without the presence of alcohol. Several witnesses concurred that Ms. Knox had not slept all night from at least 10:00 p.m., October 16th to 8:00 a.m. the following morning. While the Court is highly suspicious of the chain of events which culminated in the horrific accident on the Prospect Road wherein loss of life and bodily harm resulted, the Court cannot found conviction on suspicion alone. In R. v. Stellato (supra) the Court has determined that any degree of impairment ranging from slight to great can prove the offence of impaired operation or care and control of motor vehicle contrary to s.253(a); the Court has also declared if the evidence of impairment is so frail as to leave the trial judge with reasonable doubt, then the accused must be acquitted. This case is criminal prosecution wherein the accused not only is presumed to be innocent, but has constitutional right to remain silent. The totality of the admitted evidence before the Court is not so compelling as to allow the trier of fact to draw any adverse inference against the accused due to her election not to testify about her ingestion of alcohol; fact of which she alone, might have knowledge. In civil proceedings, Ms. Knox may be competent and compellable witness for discovery. That is not the case in criminal prosecution. Since the crown has not proven beyond a reasonable doubt the element of impairment by alcohol or drug, the Court is obligated to enter an acquittal on both counts. Dated at Halifax, Nova Scotia on January 19th, 2001. Michael B. Sherar Judge of the Provincial Court

The accused was charged with impaired driving causing bodily harm. Expert evidence was given based on blood samples taken after the accident that the accused was impaired; this opinion was based on two assumptions, namely, that the accused had not consumed alcohol within half an hour of the accident, nor after the accident. The Crown did not offer any evidence to prove these assumptions and, in fact, there was a three hour period prior to the accident where there was no evidence of what the accused, who did not testify, was doing. Acquitting the accused, that the expert evidence cannot be tendered by the Crown to prove beyond a reasonable doubt that the accused had been impaired. The remainder of the evidence against the accused was insufficient to prove the accused's doubt beyond a reasonable doubt.

b_2001canlii2619.txt

IN THE SUPREME COURT OF NOVA SCOTIA IN BANKRUPTCY AND INSOLVENCY Citation: Field-Currie (Re), 2010 NSSC 41 Date: February 4, 2010 Docket: 32729 Registry: Halifax District of Nova Scotia Division No. 03 Sydney Court No. 32729 Estate No. 51-084705 In the Matter of the Consumer Proposal of Catherine Field-Currie LIBRARY HEADING Registrar: Richard W. Cregan, Q.C. Heard: January 14, 2010 Written Decision: February 4, 2010 Subject: The Bankrupt, who had outstanding student loans of about $39,000 applied for relief under Subsection 178(1.1) of the Bankruptcy and Insolvency Act. Summary: Her studies ended in 1997. She completed Consumer Proposal being advised that it would discharge these loans, only to find out that it did not. Although she has good income, it would still take several years to discharge the loans without prejudicing the reasonable frugal lifestyle she and her family enjoy. Held: To discharge the loans would require several years on top of the already 13 years she has been burdened with them. Relief was granted. THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT’S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET IN THE SUPREME COURT OF NOVA SCOTIA IN BANKRUPTCY AND INSOLVENCY Citation: Field-Currie (Re), 2010 NSSC 41 Date: February 4, 2010 Docket: 32729 Registry: Halifax District of Nova Scotia Division No. 03 Sydney Court No. 32729 Estate No. 51-084705 In the Matter of the Consumer Proposal of Catherine Field-Currie Registrar: Richard W. Cregan, Q.C. Heard: January 14, 2010 Counsel: Darren Morgan representing Catherine Field-Currie [1] This is an application by Catherine Field-Currie for an order under Subsection 178(1.1) of the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3 (BIA) directing that Paragraph 178 (1)(g) does not apply to her outstanding student loans [2] On March 27, 2000 Ms. Field-Currie filed Consumer Proposal under the BIA. She successfully completed it on March 4, 2005 and received Certificate of Full Performance dated April 13, 2005. The proposal was administered by the Government of Nova Scotia through the Department of Service Nova Scotia and Municipal Relations Debtor Assistance. She made this proposal because she was advised by the debt counsellor that it would be an effective way of satisfying her outstanding student loans. After completing the proposal she learned that this advice was not correct. The balances owing on her student loans remain outstanding. [3] Ms. Field-Currie received her education at St. Francis Xavier University, the University of St. Anne and the University of Maine between the years 1988 and 1997. The loans, administered by Human Resources Development Canada and various banks originally totalled about $39,000. The present balance is approximately this amount. [4] After obtaining her degree in 1997 she was able to find some work as substitute teacher. This was followed by term appointments. She acquired permanent employment as teacher with the Cape Breton Victoria Regional School Board during the school year 2001 2002. She continues to be teacher with this board. She married Blair Currie in 2005. He has supervisory position with the Cape Breton Regional Municipality. They have two young children. They bought home in 2005 which is financed with mortgage, the balance of which is approximately $106,000. It has monthly payments of $850. [5] She and her husband have net monthly employment incomes of $4,265.33 and $3,300.45, respectively, for total of $7,565.78. Their total monthly nondiscretionary expenses are $1,097.50. This is mostly day care. Their available monthly income then is $6,468.28. Their discretionary expenses are $4,716.13. This leaves surplus of $1,752.15. [6] Their expenses are very modest. They could without justifying criticism be spending more. Considering that they have two children and considering the financial contingencies of family life, their surplus is really much less. As their children grow older their expenses will increase. They are presumably at or near the top of their earning capacity. [7] Subsection 178(1.1) requires that before can grant relief from student loan debts must be satisfied that: (a) the bankrupt has acted in good faith in connection with the bankrupt’s liabilities under the debt; and (b) the bankrupt has and will continue to experience financial difficulty to such an extent that the bankrupt will be unable to pay the debt. [8] It gives me two options, one to refuse relief, the other to discharge the indebtedness in its entirety. There is no middle ground. [9] I am satisfied that Ms. Field-Currie has acted with good faith. She had applied for interest relief. She had significant debt. It is understandable in the early years when she did not have permanent employment she was unable to service it. She sought the advice of debt counsellor provided by the provincial government, having had judgment entered against her. She followed this advice with proposal, thinking it would discharge this debt. This proposal was fully performed in 2005, but then she learned it was ineffective against the student loans. That year she married. Now she has two children. [10] More difficult for me is whether she would be able to pay the debt. She and her husband together have good income according to the standards of many people. They might well be able to set aside and pay each year to the credit of these loans significant sum of money say $3000 to $5000. This would encroach on their lifestyle, more particularly on what they can do for their children. But with interest continuing to accrue the discharge of the debt would take ten or more years. [11] These debts date back 13 years. She made her proposal in 2000, and completed it in 2005 and was no further ahead. Another five years have passed. There is principle underlying the BIA that except in special circumstances one should not be subject to the penalties of bankruptcy for long period of time. These debts are now 13 years old. Any reasonable repayment scheme that is not going to prejudice the reasonably frugal lifestyle they have could well take another 10 years. To expect them to pay in a shorter period say five years would be a continuation of financial difficulty which has prevented her from paying the loans. Any period longer would be too long. It would also protract the burden of these loans in manner inconsistent with the overall objectives of the BIA. [12] It is useful to analyze the situation by reference to the Superintendent’s Standards under Directive No. 11R2 Surplus Income. understand she has surplus income of about $800 per month. Before the amendments to the BIA were proclaimed, it would be normal for someone in Ms. Field-Currie’s circumstances to be required to pay surplus income for fifteen months. This would require total payments of about $12,000. This was an option open to her from 2007. Now with the amendments she would be required to pay surplus over 21 months. [13] If I could compromise the debt, I would have no difficulty in requiring her to pay a significant portion of the debt, say half of it. This, however, is not open to me. Also, note that none of the creditors appeared at the hearing to oppose this application. [14] Considering the factors mentioned above in their totality, am satisfied that Ms. Field-Currie also meets the second test. [15] She is entitled to an order that Paragraph 178 (1)(g) does not apply to her outstanding student loans. R. Halifax, Nova Scotia February 4, 2010

The bankrupt, who had outstanding student loans of approximately $39,000, applied for relief under s. 178(1.1) of the Bankruptcy and Insolvency Act. She had completed her studies to become a teacher 13 years ago and had erroneously been advised that a consumer proposal would discharge these loans. Although both she and her husband had good incomes, it would still take several more years to discharge the loans without prejudicing her family's reasonably frugal lifestyle. Relief granted; to require the bankrupt to discharge the loans in a reasonable manner would require an additional 10 or more years on top of the 13 years with which she had already been burdened, and to expect her to pay in a shorter period would cause her continuing financial difficulties. The bankrupt had acted in good faith and had been unable to service the loans in the early years when she did not have permanent employment. Compromising the debt and requiring her to only pay half of it was not an available option.

c_2010nssc41.txt

QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2016 SKQB 16 Date: 2016 01 12 Docket: SUR 172 of 2015 Judicial Centre: Swift Current IN THE MATTER OF THE ESTATE OF ANNE REITER, DECEASED BETWEEN: KIMBERLEY REITER and YVONNE POWELL and YVETTE McLACHLAN Named Executors for Anne Reiter RESPONDENTS Counsel: Jeff Taylor for the applicant Jack Hoffart for the respondents JUDGMENT DAWSON J. JANUARY12, 2016 [1] The applicant, Kimberley Reiter, applies to the court for an order that the respondents, Yvonne Powell and Yvette McLachlan, renounce their right to probate the last will and testament of Anne Reiter or, in the alternative, for an order that Yvonne Powell and Yvette McLachlan (a.k.a MacLachlan) be terminated as executors of the estate for Anne Reiter. The applicant seeks further order that the respondents be required to provide an accounting for the estate of Anne Reiter for the period of January 17, 2015 to the date that they cease to be executors of the estate of Anne Reiter. [2] The notice of application sets out the following grounds for the making of this application: Grounds for making this application: 4. caveat dated October 20, 2015 was filed against the Estate of Anne Reiter. 5. The Respondents, Yvonne Powell and Yvette McLachlan, were appointed the Executors of the Last Will and Testament of Anne Reiter, who died on January 17, 2015. 6. The Respondents failed to file the Last Will and Testament of Anne Reiter for probate within 60 days after the death of the Testator. 7. The Respondents, Yvonne Powell and Yvette McLachlan, were appointed the attorneys of Michael Reiter by Power of Attorney dated October 4, 2007. 8. The Respondents, Yvonne Powell and Yvette McLachlan, have provided an accounting for the accounts of Michael Reiter to the Applicant and to the Court for the period of January 1, 2014 to June 4, 2015 pursuant to the order of Justice L.L. Krogan issued the 4th day of June, 2015. 9. The accounting revealed that the Attorneys had abused their authority under the enduring power of attorney of Michael Reiter. 10. The Respondents, Yvonne Powell and Yvette McLachlan, have withdrawn as Attorneys for Michael Reiter as of September 4, 2015. 11. The Respondent, Yvonne Powell, withdrew $4,000.00 from the account of Michael Reiter on September 10, 2015, days after withdrawing as Attorney for Michael Reiter. [3] The respondents, Yvonne Powell and Yvette McLachlan, were appointed executors of the last will and testament of Anne Reiter. Anne Reiter died on January 17, 2015. There has been no application for probate of the last will and testament of Anne Reiter filed with the court. [4] Under the terms of the will of Anne Reiter, she bequeathed all of her property to her husband, Michael Reiter. Michael Reiter survived Anne Reiter. Michael Reiter passed away on October 14, 2015. Yvonne Powell and Yvette McLachlan were named as executors of the estate of Michael Reiter in the will of Michael Reiter. There is simultaneous application brought by the within applicant to remove Yvonne Powell and Yvette McLachlan as executors of the estate of Michael Reiter on SUR 172 of 2015. [5] Yvonne Powell and Yvette McLachlan were also the powers of attorney for Michael Reiter in his lifetime. On September 4, 2015, Yvonne Powell and Yvette McLachlan withdrew as attorneys for Michael Reiter. On September 10, 2015, Yvonne Powell withdrew $4,000.00 cash from Michael Reiter’s bank account. On September 28, 2015, this Court ordered Yvonne Powell and Yvette McLachlan to provide the Public Guardian and Trustee, within 90 days, an accounting of the estate of Michael Reiter for the period of October 4, 2007 to January 1, 2014. This Court also ordered that the respondents also provide an accounting for the period of May 25, 2015 to September 28, 2015. The court ordered that from October 28, 2015 forward, the assets of Michael Reiter would be managed by the Public Guardian and Trustee. [6] Yvonne Powell and Yvette McLachlan have provided an accounting for the period of January 1, 2014 to June 4, 2015 but as at the date this application was heard, they had not yet provided the balance of the accounting. They have provided the Public Guardian and Trustee with file boxes of bank statements, invoices and tax returns. [7] The affidavit of Yvette MacLachlan, filed in opposition to this application, indicated that the Mennonite Trust was assisting Yvette McLachlan and Yvonne Powell with the administration of the estate of Anne Reiter after her death. Ms. McLachlan attests that title to the property of Anne Reiter was held in the name of Anne Reiter and her spouse, Michael Reiter (the father of the applicant and respondents) and as such, Ms. McLachlan attests that it was not necessary to take out letters probate in the estate of Anne Reiter. [8] There was no evidence filed on this application as to what the assets of the estate of Anne Reiter were at the date of death or are presently. There is also no evidence as to the state of the administration of the estate of Anne Reiter. [9] The applicant asks that the respondents be removed as the executors of Anne Reiter’s estate. However, there is little evidence before me as to the reasons the applicant suggests they should be removed. The applicant appears to have been of the view that evidence filed on QB 33 of 2015 is evidence before the court on this application. It is not. If the applicant wishes the court to consider the evidence filed on QB 33 of 2015, the applicant will need the consent of the respondents for the court to consider that evidence or will need to file further evidence in affidavit form putting forward before the court such evidence as is relevant on this application. [10] The respondents have failed to provide any evidence to the court as to the status or assets of the estate of Anne Reiter. In order to determine the issues, it is necessary for the court to be provided with information as to the status of the administration of the assets of Anne Reiter. [11] Also, the applicant has failed to serve all those persons who are interested in this application which include the alternate executor under the will and all the named beneficiaries. As such, the applicant must prepare a notice of adjourned application returnable Wednesday, February 3, 2016 at 9:00 a.m. at the Swift Current Court House. The notice of adjourned application and all supporting material must be served on all the parties and filed in court three days prior to the adjourn date of February 3, 2016. [12] The respondents, Yvonne Powell and Yvette McLachlan, are ordered to serve and file on the applicant and on Michael William Reiter by Wednesday, January 27, 2016, list of the assets of Anne Reiter and an indication of the administration of the assets to date. [13] The application is adjourned to February 3, 2016 at 9:00 a.m. at Swift Current. Counsel must attend in person unless leave to appear by phone is obtained from the court. J. C. L. DAWSON

Wills and Estates – Executors – RemovalCivil Procedure – Wills and Estates – Applications – Requirements The applicant applied for an order that the respondents renounce their right to probate the last will of the deceased testator, Anne Reiter, or in the alternative, for an order that they be terminated as executors of her estate. The testator died in January 2015 and application for probate had not yet been made. The deceased’s will had bequeathed all her property to her husband, Michael Reiter, who died in October 2015. The respondents were named executors of his estate. A simultaneous application had been brought by the same applicant to remove the respondents as executors of his estate (see: 2016 SKQB 15). The applicant had failed to serve the respondents with notice of this application or the alternate executor and beneficiaries named in the will. In addition, the applicant had misunderstood that she could rely upon evidence filed in another action that was also before the court in this application. HELD: The application was adjourned. The applicant was instructed to serve notice of the application and the adjournment on the alternate executor and the named beneficiaries. As the applicant had not understood that evidence from another action could not be considered by the court on this application, the applicant was also required to file further affidavit evidence. She was instructed to serve the material on the respondents, the alternate executor and the beneficiaries.

6_2016skqb16.txt

1994 CRSK No. 4647 IN THE SUPREME COURT OF NOVA SCOTIA BETWEEN: JAMES FREDERICK OICKLE and HER MAJESTY THE QUEEN RESPONDENT DECISION ON APPEAL HEARD at Kentville, Nova Scotia before the Honourable Justice Hiram J. Carver; orally on the 8th day of September, 1994, by briefs, the 24th day of October, 1994 DECISION DATE: November 14, 1994 COUNSEL: Mr. R. Andrew Kimball, on behalf of the Appellant Mr. Darrell I. Carmichael, on behalf of the Respondent CARVER, J: This is an Appeal by the appellant, James F. Oickle, from a decision of His Honour Judge Randall, wherein the Trial Judge declared a mistrial and set a new date for trial because the Crown had not disclosed a police record that contained the individual weighing of each set of wheels on the accused tandem axle truck. The offence is under the regulations of the Motor Vehicle Act. GROUNDS OF APPEAL 1. That the Learned Trial Judge erred at the commencement of proceedings upon motion by defence counsel for a stay of proceeding and/or a dismissal of the charge by failing to so order, as a result of non‑disclosure by the Crown, of information crucial to proving of the Crown\'s case. 2. That the Learned Trial Judge erred during the proceedings, upon evidence being called by the Crown, by declaring a mistrial upon motion by defence counsel for certain evidence not to be admitted as a result of non‑disclosure or, in the alternative, that a stay or dismissal be ordered as a result of non‑disclosure of additional information crucial to proving the Crown\'s case not being provided to defence counsel and being relied upon in the evidence of the Crown. That the Learned Trial Judge erred by failing to find that the appellant\'s rights had been violated under Section 11(d) of the Canadian Charter of Rights and Freedoms as a result of non‑disclosure and erred at law by not finding pursuant to Section 24(2) of the Charter of Rights and Freedoms that the appropriate remedy was to order a stay of proceedings or in the alternative not admit the evidence. 3. Such other grounds as may become evident upon reading of the transcript. RELIEF SOUGHT: 1. That the appellant be granted stay of proceedings. ISSUE: Does declaration of mistrial on summary conviction charge constitute an "order' pursuant to Section 813(a)(i) of the Criminal Code, from which the accused can Appeal? During the course of the trial, the Trial Judge declared mistrial 'and set new date for trial to September 27, 1994. Section 813(a) and (b) sets out the rights of Appeal by defendant and by the Crown: Appeal by Defendant, Informant or Attorney General. 813. Except where otherwise provided by law, (a) the defendant in proceedings under this Part may appeal to the appeal court (I) from conviction or order made against him, (ii) against sentence passed on him, or (b) the informant, the Attorney General or his agent in proceedings under this Part may appeal to the appeal court (I) from an order that stays proceedings on an information or dismisses an information, (ii) against sentence passed upon defendant. Defence counsel contends declaration of mistrial is equivalent to an order of the court bringing an end to the trial in this case and, therefore, he has the right of appeal against that order. DISPOSITION: An order under Section 813(a) of the Code must be final order in the sense it brings to an end that particular proceeding. In v. Stone Ltd. (No.2), 34 C.C.C. 2(d) 464, Amup, J. A. stated, at page 471: "I would respectively agree that an "order or determination" must be "final" in the sense that it brings to an end that particular proceeding, before an appeal will lie. But am unable to agree that the order or determination must be final in the sense of "determining the issue raised in the information". This, in my view, is another way of saying that the order sought to be appealed must be in substance an acquittal, which could be pleaded in bar of any later charge, on plea of autrefois acquit. An order quashing an information brings to an end the proceeding which that information began. Such an order is "final" and appealable by stated case." A declaration of a mistrial and the setting down of the information for trial before another judge does not put an end to the proceeding which the information began. It is not a final order as contemplated by Section 813(a)(i) of the Criminal Code. No Appeal, therefore, exists to the appellant. The Appeal is dismissed and the case remitted to the Provincial Court for a new trial on the information still before the court. order no costs against the appellant. J. Bridgewater, N.S.

The appellant appealed a decision of the trial judge declaring a mistrial in his summary offence trial and setting a new date for trial because the Crown had not disclosed a police record. He argued the judge erred by not ordering a stay of proceedings and/or a dismissal at the beginning of the trial, and by failing to find the non-disclosure violated his rights under s. 11(d) of the Charter. He sought a stay of proceedings in this action. Dismissing the appeal, that a declaration is not an 'order' under s. 813(a)(i) of the Code in that it does not bring a final end to the matter. It is therefore not appealable.

3_1994canlii4234.txt

SMITH J.A. THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2005 SKCA 27 Date: 20050222 Between: Docket: 963 Ganapathi Shankar, also known as Ganapathi Shankarnarayan and Datamatics Limited Coram: Cameron, Lane Jackson JJ.A. Counsel: Anne E. Hardy for Ganapathi Shankar Paul J. Harasen for Datamatics Limited Appeal: From: 2004 SKQB 220 (CanLII) Heard: February 22, 2005 Disposition: Appeal Dismissed (orally) Written Reasons: February 24, 2005 By: The Honourable Mr. Justice Cameron In Concurrence: The Honourable Mr. Justice Lane The Honourable Madam Justice Jackson Cameron J.A. [1] It will not be necessary for us to hear from the respondent. The appellant has failed to persuade us that Mr. Justice Koch erred in any material respect. In other words, we see no tenable basis for interfering with his decision. [2] The debtor clearly committed an act of bankruptcy under ss. 42(1)(e) of the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, as result of the sheriff’s return of nulla bona to the respondent’s writ of execution against the debtor. [3] That left Justice Koch to consider whether to dismiss the petition pursuant to ss. 43(7) of the Act or to stay proceedings on the petition pursuant to ss. 43(11). [4] As for the first, the debtor did not satisfy Justice Koch that he was able to pay his debts or that there existed other sufficient cause to dismiss the petition. Based on the evidence adduced by the debtor, we are of the view there is no basis to conclude that Mr. Justice Koch should have been satisfied of these matters. [5] As for second, concerning ss. 43(11), we note that the subsection contains discretionary power to stay proceedings. That, of course, serves to narrow the basis for intervention on appeal. We cannot say Justice Koch erred in any requisite respect in the exercise of this discretionary power. [6] Accordingly, the appeal is dismissed, with costs on appeal to the respondent to be taxed in the usual way.

Fulltext of judgment follows:[1] It will not be necessary for us to hear from the respondent. The appellant has failed to persuade us that Mr. Justice Koch erred in any material respect. In other words, we see no tenable basis for interfering with his decision. [2] The debtor clearly committed an act of bankruptcy under ss. 42(1)(e) of the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, as a result of the sheriff's return of nulla bona to the respondent's writ of execution against the debtor. [3] That left Justice Koch to consider whether to dismiss the petition pursuant to ss. 43(7) of the Act or to stay proceedings on the petition pursuant to ss. 43(11). [4] As for the first, the debtor did not satisfy Justice Koch that he was able to pay his debts or that there existed other sufficient cause to dismiss the petition. Based on the evidence adduced by the debtor, we are of the view there is no basis to conclude that Mr. Justice Koch should have been satisfied of these matters. [5] As for second, concerning ss. 43(11), we note that the subsection contains discretionary power to stay proceedings. That, of course, serves to narrow the basis for intervention on appeal. We cannot say Justice Koch erred in any requisite respect in the exercise of this discretionary power. [6] Accordingly, the appeal is dismissed, with costs on appeal to the respondent to be taxed in the usual way.

8_2005skca27.txt

DECISION DATE: 20000803 COURT NO: SH 55402 CANADA PROVINCE OF NOVA SCOTIA IN THE SUPREME COURT OF NOVA SCOTIA and D.B. and THE ATTORNEY GENERAL FOR CANADA IN RIGHT OF THE DEPARTMENT OF NATIONAL DEFENCE AND HER MAJESTY THE QUEEN IN RIGHT OF CANADA DECISION HEARD BEFORE: The Honourable Justice A. David MacAdam, at Halifax, Nova Scotia DATE: May 3, 2000 WRITTEN RELEASE OF DECISION: August 3, 2000 COUNSEL: Norman W.P. Fraser John A. McKiggan, for the plaintiff Leanne Wrathall, counsel for the Crown [1] Counsel for the parties, for the purpose of this application, have signed an: AGREED STATEMENT OF FACTS 1. MJD was member of the Canadian Armed Forces. 2. DB pleaded guilty and was convicted on March 27, 1995 of sexually assaulting MJD under s. 271 of the Canadian Criminal Code. 3. MJD was voluntarily released from DND January 1996. 4. MJD claims to suffer from depression and post traumatic stress disorder (PTSD) due to the sexual assault. 5. In October 1996 DND, without MJD’s involvement, re-assessed her release from the Military and ruled that she should have been released on medical grounds, being disabled and not being able to fit to perform the duties of her trade or employment. 6. DND sent MJD letter advising her that she could possibly apply for pension. 7. MJD applied to Veterans Affairs Canada (VAC) for pension July 16, 1997. 8. Dr. DeRoche, her psychiatrist, in letter dated April 2, 1998 stated MJD was suffering from depression and PTSD due to rape and sexual assault. This letter was sent to VAC in support of MJD’s pension application. 9. April 23, 1998, VAC denied MJD’s pension. 10. April 1999, MJD sued in the Supreme Court of Nova Scotia. 11. The Ministers decision to deny MJD’s pension has not been appealed, has not been re-assessed by the Minister on his own motion, nor by application to the Minister by MJD to re-assess, based on new evidence. 12. The limitation period for appealing the Ministers decision has expired under the Pension Act. 13. MJD is not in receipt of pension benefits. [2] In answer to the plaintiff’s proceeding, the Crown’s defence, in paragraphs and 9, reads: 8) In the further alternative, the Defendant states if the Plaintiff has suffered injury, damage or loss in the course of her military service, which is not admitted but denied, she is entitled to pension benefits pursuant to the Pension Act, R.S.C., 1985, c. P-6 as amended. 9) The Defendant states that if the Plaintiff is eligible for pension benefits as described in paragraph herein, this claim is statute barred on the basis of: a) s.9 of the Crown Liability and Proceedings Act, supra b) s. 111 of the Pension Act, supra [3] Section of the Crown Liability and Proceedings Act, R.S.C. 1985, c.C-50, reads as follows: No proceedings lie against the Crown or servant of the Crown in respect of claim if pension or compensation has been paid or is payable out of the Consolidated Revenue Fund or out of any funds administered by an agency of the Crown in respect of the death, injury, damage or loss in respect of which the claim is made. [4] Section 111 of the Pension Act, R.S. 1985, c. P-7, provides: No action or other proceeding lies against her Majesty or against any officer, servant or agent of Her Majesty in respect of any injury or disease or aggravation thereof, resulting in disability or death in any case where pension is or may be awarded under this Act or any other Act in respect of the disability or death. [5] The British Columbia Court of Appeal in Gustar v. Wadden et al (1994), 1994 CanLII 8705 (BC CA), 91 B.C.L.R. (2d) 86, at p. 90, in considering s. held: “Payable” does not mean “may be payable” depending upon the outcome of some future uncertain event. “Payable” means presently enforceable legal right to collect, and corresponding legal obligation to pay. [6] In Gustar, supra, an R.C.M.P. officer sued his fellow officers for defamation, assault, and invasion of privacy which allegedly caused him personal injury. At para. Justice Finch, on behalf of the Court, stated: Counsel for the Crown contended that the effect of s. was to require the appellant to apply for pension, and to show that pension is not payable to him. In my respectful view, that is an untenable position. The two superior officers plead s. as statutory defence. As with any such affirmative pleading, they thereby assume the obligation of proving the facts necessary to bring the case within the language of the statute. That includes the onus of proving that pension is “payable”. In the scheme contemplated by the Royal Canadian Mounted Police Superannuation Act, R.S.C. 1985, c. R-11, and the Pension Act, R.S.C. 1985, c. P-6, pension does not become payable until the employee makes an application for same, and the Canada Pension Commission has granted the “award” of pension in the applicant’s favour. On the admitted facts of this case, the Crown cannot meet that onus because the appellant has never made an application for pension. can see nothing in the Crown Liability and Proceedings Act, or any other statute to which we were referred, which would impose upon the appellant the reverse onus for which the Crown now contends. To interpret the section as imposing an obligation on the employee to apply for pension, and further obligation upon him to prove that pension is not payable, would require us to read into the legislation concepts which are both unexpressed and unreasonable. [8] At paragraph 16, the Court stated: In my view the effect of the stay ordered in this case was to impose upon the appellant an obligation to apply for pension, and then to demonstrate that pension was not payable to him. With respect, this is misinterpretation of s. 9. In order to raise s. as successful defence the Crown, or its servants, must prove facts to bring the case within the ambit of that legislation. That includes, for the purpose of this case, proving the fact that pension is payable. The Crown has not met that onus, and on the admitted facts cannot do so. [9] In the present circumstances it is unnecessary to consider whether even absent any application for pension, claimant may pursue civil remedies and relief. The plaintiff applied for and was denied pension. Clearly pension is not at this time payable to her. [10] However the validity of the Crown’s defence that the plaintiff is barred from bringing this proceeding is also pressed pursuant to s. 111. The relevant wording in s. 111 is “where pension is or may be awarded”. It is essentially the very phrase that in Gustar, supra, the court said was not the meaning of the equivalent phrase appearing in s. 9. The court in Gustar, supra, does not appear to have considered the application of s. 111. [11] In Leach v. Canada, [1995] F.C.J. No. 1680, the Federal Court considered both s. and s. 111 and whether they provided defence to the plaintiff’s action. In para. 12, the Court stated: In my view, the most helpful analysis of Section 111 is found in the Federal Court of Appeal decision in Tremblay v. The Queen, [1976] F.C. 758. In that case, no application for pension had been made. The Court was considering, with reference to section 88 of the Pension Act (now) Section 111), whether pension “may be awarded”. It did not conclude that the answer was no simply because no application had been made. Rather, it looked at the facts to see whether pension “may be awarded”. Section 88…only applies where, at the time the Section is being invoked, there are facts that vest in the Commission an existing jurisdiction to award pension. In Tremblay the Court found that no such facts existed and that Section 111 was, therefore, not bar to the proceedings. The trial decision which has stuck out declaration for damages was set aside, and the action was allowed to proceed. [12] Counsel for the plaintiff, after referencing the foregoing, continues: In the case at bar, the answer to the question posed by the Federal Court of Appeal in Tremblay and the Federal Court in Leach has been answered. The proper question is whether “pension may be awarded”. In both cases pension had not been applied for. In the case at bar, the pension was applied for and was denied by the Crown and therefore s. 111 provides no defence and paragraph (b) of the Statement of Defence should be dismissed. It is respectfully submitted that the Crown is estopped from saying the plaintiff’s claim is barred by her entitlement to pension when the Crown itself has denied her pension following her application. The Crown, having denied her a pension cannot come forward now and say that she is barred in this action because she is now entitled to a pension when they have already decided otherwise. To permit that argument to carry the day would be a traversity of justice and bring the administration of justice into disrepute. In Tremblay v. Canada the trial judge struck out an action for damages by the Plaintiff as result of the death of her son, member of the Canadian Forces Reserve, caused by the negligence of servant of the defendant on the grounds that under s. 4(1) of the Crown Liability Act or s. 88 of the Pension Act no action lies against the Crown where pension is being paid or is “payable”. The Federal Court of Appeal reversed that decision, [1976] F.C. 758. The majority held in substance, that since no pension had been paid or awarded, it followed that no pension was payable. [13] The Crown takes the position that the plaintiff’s proceeding is premature. In view of s. and s. 111, before taking this proceeding, it is first necessary for the plaintiff to exhaust her administrative remedies. Counsel in her written submission says: Support for the proposition that the administrative process must be exhausted before recourse to the civil court can be found in Townsend v. Canada, (1994) 74 F.T.R. 21 (F.C.T.D.). In that case, federal government employee brought an action for constructive dismissal. The Crown made application to have the claim struck as disclosing no reasonable cause of action. The Federal Court, Trial Division, struck the claim. The Court relied on s. 24 of the Public Service Employment Act and held that remedies for dismissed federal employees lay elsewhere and not in civil actions for wrongful dismissal. At paragraph of the judgment, Justice Tremblay-Lamer stated: The rule that recourse to alternative bodies is bar to court actions has been considered by the courts in various contexts and is applicable to the present instance. (emphasis added) [14] This rule was also applied in Haswell v. Canada (Attorney General), [1998] O.J. No. 526 (O.C.J.), confirmed on appeal [1998] O.J. No. 5179 (O.C.A.). In that case, the plaintiff, military officer, was advised that he would be compulsorily retired pursuant to the provisions of the National Defence Act and the Queen’s Regulations and Orders. The plaintiff did not pursue grievance regarding the compulsory retirement as he could have under s. 29 of the National Defence Act. After his compulsory retirement, the plaintiff filed civil action based in tort, alleging he was negligently or arbitrarily released from the military. The Crown brought an application to strike the statement of claim on the basis it disclosed no reasonable cause of action. In striking the action Justice Chadwick stated at para 12: Notwithstanding the attempts by the plaintiff to frame the action in tort by the use of the word “negligently” in my view the facts as pleaded in the statement of claim clearly establish the claim relates to the plaintiff’s engagement as member of the Armed Forces and in particular his compulsory retirement from that engagement would be covered by the National Defence Act and Regulations the remedies provided therein. As such the plaintiff’s remedies would be in the exclusive jurisdiction of the Federal Court and this court would not have any jurisdiction as result of s. 18 of the Federal Courts Act. [15] The Crown in her written submission continues: Townsend and Haswell, were both cases where the plaintiff ignored the administrative process in favor of civil action and the Court held that they had to pursue the administrative process. This begs the question what the Court would do had the plaintiff’s pursued the administrative process and then commenced civil action. In Johnson-Paquette v. Canada (1998), 1998 CanLII 8709 (FC), 159 F.T.R. 42; [1998] F.C.J. No. 1741 (T.D.) (Q.C.) the plaintiff had proceeded with the grievance process but did not pursue judicial review when his grievance was unsuccessful. He filed civil action and the court held that it did not have jurisdiction. In his decision Justice Trembley-Lamer said: In the present case, the plaintiff has not exhausted the grievance procedure provided under the PSSRA and the resulting judicial review. She is attempting to seek judicial review of the grievance officer’s decision by way of an action for damages in tort this she cannot do. (emphasis added) [16] As advanced by counsel for the plaintiff the authorities referenced by the Crown involve employment or dismissal cases where the terms and conditions of employment incorporated dispute resolution mechanisms. By the terms of these administrative mechanisms, there were pre-defined steps to be followed by persons dissatisfied by the initial administrative decision. Such, apart from s. and s. 111, are not available to the plaintiff. These legislated provisions clearly provide the right to pursue alternative remedies and relief where the restrictions in the two sections are not applicable. [17] It is unnecessary to decide whether, in order to satisfy the conditions contained in s. and s.111, the plaintiff first had to make application for pension. Here the plaintiff made an application and was denied. The Crown says she should have appealed or applied for review, both steps being available to her under the Pension Act. review requires, apparently, new information, and therefore presumably an application for review without new information would be bound to fail. The appeal period has now expired. As such, absent new information, the plaintiff would have nowhere to go to seek relief or redress. [18] It is also inconceivable that having been denied the application for pension the plaintiff is precluded from bringing this proceeding because she failed to appeal in time. Assuming an individual accepts the Minister’s denial but believes for reasons unrelated to the pension application they are entitled to relief or remedy against the Crown counsel’s position would require the plaintiff to pursue meaningless appeals simply to meet the conditions of s. and s. 111. [19] Counsel for the plaintiff, in concluding his written submission, says: Section 111 of the Pension Act or s. of the Crown Liability and Proceedings Act cannot be read having regard to these authorities to amount to the proposition that having been denied pension by the government for sexual assault the Plaintiff is now barred from bringing an action for damages against the government claiming that she is now entitled to pension.

After being sexually assaulted, applicant was voluntarily released from Canadian Armed Forces. She applied for and was denied a pension. Civil proceedings were commenced and the Crown defended on the basis that before initiating civil proceedings, applicant was obliged to appeal denial of pension or seek review by Minister of pension rejection. Applicant applied to strike out that portion of defence application allowed. The applicant applied for and was denied a pension. Therefore no pension was at this time payable to her. A review by the Minister would require new information and the appeal period had expired. The applicant should not be denied her right to proceed against the Crown in such circumstances.

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1993 S.H. 93‑6587 IN THE SUPREME COURT OF NOVA SCOTIA BETWEEN: THE ESTATE OF SAMUEL HAVERSTOCK and ARMOYAN PROPERTIES LIMITED, body corporate DECISION HEARD BEFORE: The Honourable Justice David W. Gruchy in the Supreme Court of Nova Scotia (Chambers) on May 31, 1994 DECISION: May 31, 1994 WRITTEN RELEASE August 22, 1994 OF ORAL: COUNSEL: Darlene Jamieson, for the Appellant Meinhard Doelle, for the Respondent Kevin Latimer, for Halifax County GRUCHY, J. (Orally) Armoyan Properties Limited has undertaken the residential development of certain lands in the County of Halifax. Bordering Armoyan lands are certain lands of the Estate of Samuel Haverstock. Armoyan has sold house lots in its subdivision and houses have been constructed. Armoyan has also constructed roadways. One such road is one lot removed from and parallel to lands of Haverstock. Armoyan has proposed to convey roadways to the Nova Scotia Department of Transportation and Communications. That Department has indicated that before it will accept conveyance and responsibility for the roadways, it requires the consent of the owners of property where water will drain from the road; in this case the Haverstock Estate. The Haverstock Estate has refused to consent to such drainage across its lands and has refused to surrender its right to future claims, should damage occur. Armoyan made application to the Municipality of the County of Halifax for implementation of proceedings under the Ditches and Water Courses Act, R.S.N.S. 1989, c.132. Meetings pursuant to that Act failed to achieve agreement. Armoyan therefore filed requisition with the Clerk of the County pursuant to s.7(1) of that Act. That section reads as follows: "7 (1) If the parties at the meeting do not agree any owner may file with the clerk of the municipality in which the lands requiring such ditch or drain are situated, requisition (Form or to the like effect) shortly describing the ditch or drain to be made, deepened or widened, and naming the lands which will be affected thereby and the owners respectively and requesting that the engineer appointed by the municipality for the purpose be asked to appoint day in which he will attend at the time and place named in the requisition, which shall not be less than six or more than twelve clear days from the time of filing the same, and shall also at least four clear days before the time appointed therein serve upon all the persons named in such requisition notice (Form or to the like effect) requiring their attendance at the same time and place provided, nevertheless, that when it is necessary in order to obtain an outlet, that the drain or ditch shall pass through or partly through the lands of more than five owners (the owner first mentioned in this Section being one), the requisition shall not be filed unless (a) such owner first obtains the assent in writing thereto of (including himself) majority of the owners affected or interested; (b) resolution of the council of the municipality in which the greater portion of the work is to be done, approving of the scheme or proposed work, is first passed, after those interested have been heard or have had an opportunity to be heard by the council upon notice to that effect; or (c) the assent (by resolution) of the said council approving of the proposed extension to the lands of other interested persons is first passed after hearing or notice as hereinbefore provided. The County by resolution appointed Dr. Donald Waller as the municipal engineer pursuant to s.4 of the Act. He met with County officials and then convened two meetings with Armoyan and representatives of the Haverstock Estate. From the outset Haverstock protested the procedure. Dr. Waller received certain evidence from the parties, including especially report from Armoyan's consulting engineers as to the anticipated flow of drainage and possible courses for that flow across the Haverstock lands. Following the hearings, on November 15, 1993, Dr. Waller submitted his report to the County of Halifax. That report, together with various appendices, has been produced to me by the solicitor for the Haverstock Estate the Appellant. The report and material have been supplied to me in full. It consists of document bearing page numbers 010 to 081. In his "interpretation' of the Act Dr. Waller concluded that it applied to the situation before him for two reasons: (a) Armoyan lands had opened ditch on its own lands "...to enable better use of their lands and to continue to provide drainage to upstream land...at their expense in accordance with their interest", and (b) Armoyan seeks "...to open ditch on the property of the Haverstock Estate, and are prepared to pay for the same because it is in accordance with their interest." Dr. Waller's conclusions as to the respective legal rights of the parties under the Act are as follows: (2) According to Section 5(2), Armoyan Properties are required to continue ditch or drain to proper outlet, and entitled to construct it through the Haverstock lands to proper outlet. (3) According to Section 5(2), Armoyan Properties cannot flood the Haverstock lands by construction of the ditch or drain without the owner's consent. (4) According to Section 5(3), Armoyan Properties are required to maintain the ditch or drain. (5) According to Section 10(1), if the Haverstock Estate is not interested in opening the ditch or drain, the engineer may award that it be opened at the expense of Armoyan Properties. In summary, Armoyan Properties are entitled to construct ditch or drain across lands of the Haverstock Estate, provided that 1) they continue it to proper outlet, and 2) they design, install, and maintain it in manner that will address concerns about the effects on the Haverstock lands, which have been identified as flooding, channel erosion, and deposition of upstream sediment." In order to put Dr. Waller's conclusions into context, cite the full text of s.5 and ss.(1) of s.10 of the Act. “Maintenance of ditches (1) In case of owners of lands, whether immediately adjoining or not, which would be benefited by making ditch or drain, or by deepening or widening ditch or drain already made, in natural water course, or by making, deepening or widening ditch or drain for the purpose of taking off surplus water or in order to enable the owners or occupiers thereof the better to cultivate or use the same, such several owners shall open and make, deepen or widen, just and fair proportion of such ditch or drain, according to their several interests in the construction of the same; and such ditches or drains shall be kept and maintained so opened, deepened or widened by the said owners respectively, and their successors in such ownership, in such proportions as they have been so opened, deepened or widened, unless in consequence of altered circumstances the engineer otherwise directs, which he is hereby empowered to do, upon application of any person interested, in the same form and manner as is hereinafter prescribed in respect to the original opening, deepening or widening, and in case the engineer finds no good reason for such application, all costs caused thereby shall be borne by the applicant and shall be collected as in this Act provided. Outlet for ditch (2) Every such ditch or drain shall be continued to proper outlet, so that no lands, unless with the consent of the owner thereof, will be overflowed or flooded by the construction of any such ditch or drain, and it shall be lawful to construct such ditch or drain through one or any number of lots until the proper outlet is reached. (3) Such consent shall be in writing and signed by the person consenting, and shall be filed with the clerk with the award, and may be recited or referred to therein. Notice to repair (4) Where ditch or drain has been constructed under this Act, and any owner whose duty it is to maintain and keep in repair any portion of the ditch or drain neglects to keep such portion in proper state of repair, any one of the owners who is liable for maintaining and keeping in repair any portion of such ditch or drain may, in writing, notify the owner who neglects to keep his portion of such ditch or drain in proper state of repair, to have the same put in such repair, and to have the same completed within thirty days from the receipt of the notice. Application to council (5) The owner who serves the notice may, if the work has not been performed at the expiry of the thirty days, make application to the council to have the repairs carried out and completed. Order for examination (6) The council shall, when such application is made, order an examination of such portion of the ditch or drain as is complained of, to be made by the engineer, or by some other person to be appointed by the council, and who may be called the "inspector of drains and ditches". Certificate of inspection (7) The inspection shall be made not later than twelve days from the time of the ordering the same, and the engineer or inspector, as the case may be, shall within twelve days after making the inspection, file with the clerk certificate stating whether the complaint is well founded or not, and wherein the ditch or drain requires repairing. Repairs by council and disqualification (8) If the engineer or inspector, as the case may be, certifies that the complaint is well founded, the council shall order him to proceed and let the work in the manner in this Act hereinafter provided for re‑letting work, unless the owner has himself in the meantime completed such repairs in accordance with the report or certificate of the engineer or inspector. Remuneration of inspector (9) The provisions of this Act as to the inspection and payment of engineer's or inspector's fees and cost of work shall apply, and the council may fix the remuneration of the inspector during the time he is engaged in the performance of any duties under this Act. Restriction on appointment (10) member of the council shall not be appointed inspector. (11) If the engineer or inspector decides that the complaint is not well founded, the person making the complaint shall pay the fees of the engineer or inspector, and if not paid by him they shall be paid by the council and charged as hereinafter provided. (12) Any owner or person interested under proceedings taken under or by virtue of this Section shall have the right of appeal as provided by this Act where the amount involved exceeds the sum of twenty dollars. R.S.,c.78,s.4. Construction awarded 10 (1) If it appears to the engineer that the owner or occupier of any tract of land is not sufficiently interested in the opening up of ditch or drain to make him liable to construct any part thereof, and at the same time that it is necessary for the other parties that the ditch or drain should be continued across the tract, he may award the same to be constructed at the expense of the other parties, and after the award the other parties may open the ditch or drain across the tract at their own expense without being trespassers, but causing no unnecessary damage, and replacing any fences opened or removed by them." Dr. Waller set forth three options. He said Armoyan could continue its ditch to "proper outlet" in one of three alternative ways: 1. ditch or drain could be constructed through the Haverstock lands to Schmidt Lake which abuts the Haverstock property, and which ditch or drain would cause some disturbance to those lands; 2. ditch or drain could be constructed to certain wetlands within the Haverstock lands, thereby raising the water level of the wet area but decreasing the negative effect of draining directly into the lake; and 3. Permit the discharge of the Armoyan drainage at the Haverstock boundary and, recognizing possible erosion caused by increased water flow, provide erosion protection, which protection is to be determined. Dr. Waller concluded his award by stating "...Armoyan is entitled to install a ditch and drain on the Haverstock lands...", subject to certain requirements which he set forth. He said that his fees, in accordance with the County's resolution, were to be charged to Armoyan. The Haverstock Estate appealed this decision pursuant to s.12 of the Act and stated the issues of the appeal as follows: 1. What is the Scope of Appeal in this matter? 2. Is the Act applicable to the facts of this case? 3. Is defining the term "proper outlet" matter beyond the jurisdiction of the Municipal Engineer, and was there evidence presented at the hearing upon which the findings of fact in the decision, relating to what is proper outlet, could have been made? Armoyan stated the issues as follows: 1. What is the scope of appeal in this matter? 2. Did the Municipal Engineer, Dr. Waller, err in fact or law or exceed his jurisdiction in determining that, subject to certain conditions, the Respondent is entitled to install ditch or drain on the lands of the Appellant? 3. Did the Municipal engineer, Dr. Waller, err in law or in fact in requiring the Respondent to pay for Dr. Waller's services under the Act? have accepted Armoyan's issue as, in effect, cross‑appeal against the order for the payment of Dr. Waller's fees by Armoyan. There is short answer to this appeal without dealing with the specific issues raised by the parties. Dr. Waller did not comply with s.9 of the Act. That section, as have set forth above, requires that he shall specify "...clearly the locallty, description and course of the ditch or drain, point of commencement and termination of same, the portion of the ditch or drain to be constructed by the respective parties, and the time within which the work is to be done...". The award does not comply with that section. It concludes that Armoyan is entitled to install ditch, but leaves it to Armoyan to provide Haverstock certain technical information so that it may choose which of the three options it wishes to have pursued. The offering of choice to Haverstock and the ordering that the ditch or drain shall be designed by Armoyan do not discharge the engineer's duties under the Act. On that basis alone, would set aside that portion of Dr. Waller's order. The parties, however, have raised issues in this appeal which ought to be addressed. Pursuant to the Act, could simply refer the matter back to Dr. Waller. choose not to do so and will, therefore, make certain general statements concerning this matter in which address some of the specific issues raised. GENERAL From the outset, Haverstock has questioned the appropriateness of the process under the Ditches and Water Courses Act. share that concern. The material presented to me shows that Armoyan proceeded to develop and sell lots in the subdivision in question before the care, maintenance and ownership of roads or streets had been assumed by the appropriate public authority the Department of Transportation and Communications. Apparently, subdivision approval has been given by the County to Armoyan. The development of the subdivision has created point of flow of surface water across the Haverstock lands. There is no natural watercourse to receive that flow within the Haverstock lands. In these circumstances, does the Act provide means by which Haverstock will be forced to accept the drainage? conclude that it does not. As general comment, the Act is very old, first appearing in the Nova Scotia Statutes in 1900. It appears to have been drafted for vastly different age and conditions and addresses problems which might arise in sparsely populated rural or agricultural areas. It does not address the conditions and problems of modern sprawling suburban area such as that with which we are dealing here. The Act appears to assume that respective landowners are in some measure of agreement brought about by the tacit inference that the lands will be benefited by the making of ditch or drain. (See s.5). The Act provides a method of apportioning the cost of the ditch or drain amongst the owners and prescribing the means by which will be determined the necessary technical details of the ditch including its location and termination point, or proper outlet. The contents of the engineer's award are prescribed by s.9 of the Act. S.5(2), however, requires that any outlet to ditch or drain may not be located on lands which will be overflowed or flooded without the consent of the owner. In this case, Haverstock's consent has not been forthcoming. The Act does not give the engineer authority to take (or expropriate) land, or any interest in it. Yet clearly the construction of ditch or drain will require the use of the land on which it will be situated. The presence of such ditch or drain will prevent most ordinary uses of the land so occupied. The ditch or drain will be storm sewer which must, as development occurs, be maintained for the benefit of the upstream public. It is reasonable to assume that Armoyan, as subdividing developer, will sell off its land, leaving the Haverstock land with gratuitous duty to maintain that storm sewer or drain for the benefit of its upstream neighbours. It is surely not the intention of this Act to enable private developers such as Armoyan to use the private property of its neighbours to solve the problems it has created. It cannot be the intention of the legislation to permit the Department of Transportation and Communications, before assuming the responsibility for the road, to insist that the rights of the adjacent property owners be extinguished in the fashion put forward by this process. If the Act's process had led to the conclusion by the engineer that the Armoyan property, or the road, could be ditched but no overflow or flooding would be caused thereby to the Haverstock land, then an award or order to that effect by the engineer might have been appropriate. That was not the case as, in fact, the engineer went further. He recognized that the Armoyan development had and would continue to have the effect of channelling water onto Haverstock lands. (See Dr. Waller's memorandum to the Haverstock Estate and to Armoyan, apparently undated, at p.045 attached to his final award.) Dr. Waller appears to have described the very situation the law seeks to avoid and as described in Farnham on Law of Waters (1904), Vol. 3, at p.2619, as cited and approved by the late Cowan, C.J.T.D., and by Hart, J.A. in Clayton v. Nova Scotia Housing (1982), 51 N.S.R. (2d) 451 at 455 where it was said: He (a property owner) may build upon or change the surface at pleasure, without liability for the incidental effect upon adjoining property. He cannot, however, by artifical means gather the water upon his property together and throw it upon the property of his neighbour, withether the grade of the latter's is higher or lower than his. The property of the neighbour is under no servitude to furnish artifical drainage for his property. Furthermore, the upper owner cannot change the course in which the water flows over the surface of his property, nor can he render his surface impervious so as to collect the water at his boundary and cast it upon his neighbour, nor can he do anything to relieve himself of the water at his neighbour's expense. The Act does not abrogate this common law. THE AWARD further analysis of Dr. Waller's award is advisable. Following an introductory recitation of Dr. Waller's retainer and the steps taken in the process, Dr. Waller set forth his interpretation of the Act. He concluded that the factual situation as he found it was that contemplated by s.5(1) and, therefore, the Act applies. His interpretation of the section was that Armoyan is required to continue ditch or drain to proper outlet and "...entitled to construct it through the Haverstock lands". He concluded, as have set forth above, that by virtue of s.10(1) he had the power to order that drain or ditch be opened across the Haverstock land at the expense of Armoyan. Dr. Waller was incorrect as to his conclusion as he has stated it. Armoyan was not entitled to construct ditch or drain without further considerations. set them forth: 1. The ditch or drain is clearly for the diversion of storm water. Storm water is included in the definition of "sewage" as contained in the Water Act, R.S.N.S.,c.500, s.2(i). Before proceeding with the construction of any such ditch or drain, full compliance with the provisions of the Water Act is required. Dr. Waller did not address that subject. 2. The compulsory use of the Haverstock lands, in my view, amounts to compulsory taking of that land or use thereof, and is not in accordance with the provisions of the Expropriation Act, R.S.N.S., c. 156. The award of Dr. Waller if acted upon amounts to an expropriation, pursuant to the definition of that word contained in s.3(l)(c) of the Expropriation Act. It is not necessary that precise piece of land be taken, as "land" includes any estate, term, easement, right or interest in, to, over or affecting land. That is precisely what Dr. Waller's award has done. If Dr. Waller has the authority to do as he purports to do then he appears to be "statutory authority" which means "...any person or body empowered by statute to expropriate land or cause injurious affection". S.4 of the Expropriation Act reads: "4 (1) Notwithstanding any general or special act, were land is expropriated or injurious affection is caused by statutory authority, this Act applied. (2) The provisions of any general or special act providing procedures with respect to the expropriation of land or the compensation payable for land expropriated or for injurious affection shall be deemed to refer to this act and not to the act in question. (3) Where there is conflict between provision of this act and the provisions of any other or special act, the provision of this act prevails." There has been no compliance with the provisions of the Expropriation Act and, therefore, Dr. Waller's conclusion as to Armoyan's right to act as he prescribed is incorrect. conclude that the Act is not an appropriate means for the resolution of the difficulties faced by Armoyan and the County in this case. Where the Haverstock lands are not to be benefited by the installation of ditch or drain and the Estate has not consented to the construction of same, the Act is not applicable. SCOPE OF APPEAL The scope of appeal is set forth in s.12 of the Act, but in my view, this question ought only to be addressed after have decided if the Act is applicable. have decided it is not. In any event, have also concluded that s. 12 would give me the powers to hear the matter de novo if it were necessary. COSTS Finally with respect to Dr. Waller's award of his costs against Armoyan refer to ss. 15 of the Act. will make no order for costs either for or against the County. award costs in the amount of $3,000.00 all inclusive to the appellant as against the respondent.

The respondent had undertaken the residential development of certain lands bordering the appellant's property and constructed roadways which it proposed to convey to the Department of Transportation, who agreed to accept with the consent of owners of property where water would drain from the road. When the appellant refused to consent, the respondent applied to the municipality for proceedings under the Ditches and Water Courses Act, which failed to achieve agreement. The respondent then filed a requisition with the county clerk pursuant to s. 7(1) of the Act which allows for the appointment of a municipal engineer. The engineer filed a report in which he concluded the respondent was entitled to open a ditch on the appellant's land, subject to certain conditions. In this action, the appellant appealed pursuant to s. 12 of the Act. Allowing the appeal, that the Act appears to assume that landowners will agree that a ditch benefits their land and provides a mechanism for apportioning cost. However, it does not give an engineer authority to expropriate land or take any interest in it, nor does it provide a means by which the appellant is forced to accept the ditch. Further, the common law prohibits the use of another's property to solve one's drainage problems.

9_1994canlii4283.txt

QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2005 SKQB 484 Date: 20051115 Docket: Div. No. 336/1995 Judicial Centre: Saskatoon, Family Law Division BETWEEN: BEVERLEY LOY AASTON (ALM) and BRIAN ANDREW CARGILL ALM Counsel: Beverley Loy Aaston on her own behalf D. J. Fisher for the respondent FIAT RYAN-FROSLIE J. November 15, 2005 1) The petitioner, Beverley Loy Aaston applies to have arrears fixed with regard to s. expenses related to her daughter’s post-secondary education and in addition requests that the amount of the ongoing s. expenses be specified. In argument Ms. Aaston acknowledged that Mr. Alm has paid the amounts as ordered to date with the exception that he has not paid any s. expenses since Justice Smith’s order of September 23, 2004. Ms. Aaston had claimed for 2003/2004 s. expenses with regard to her daughter, Brina. That application was dismissed as it pre-dates Justice Wilkinson’s order of September 28, 2004. The sole issue now before this Court is the amount to be fixed for the ongoing s. 7 expenses. 2) The parties were married on August 19, 1972 and separated August 1, 1994. They have three children, namely: Corry Dawn Alm, born May 12, 1975 (age 30); Kristin Marie Alm, born March 6, 1981 (age 24); and Brina Lynne Alm, born September 6, 1985 (age 20). On September 8, 1998 the parties were granted judgment for divorce which included child support. Since that time, number of orders have been made varying the amount of that support. These orders largely deal with the status of the children and the costs associated with their post-secondary education. 3) On December 3, 2002, Justice Dickson terminated Mr. Alm’s obligation to pay support for the parties’ oldest child, Corry and ordered, in addition to ongoing support for the two youngest children, payment of s. expenses relating to Kristin’s attendance at university. 4) On September 28, 2004, Justice Wilkinson of this Court granted consent order extending Mr. Alm’s obligation for s. expenses to include Brina’s “post-secondary education costs after student loans.” The consent order fixed Mr. Alm’s s. obligations for both Kristin and Brina at $609 per month commencing August 1, 2004. The s. expenses covered were Brina and Kristin’s post-secondary education costs after student loans and included computer repairs, equipment and internet access for both girls. 5) On September 23, 2005, Justice R. S. Smith terminated Mr. Alm’s obligation to pay support for Kristin effective October 1, 2005. He found Mr. Alm’s income for child support purposes to be $59,500 gross per annum and Ms. Aaston’s income for child support purposes to be $30,000 gross per annum. He ordered Mr. Alm to pay 66% of Brina’s s. expenses. What these s. expenses are was not specified and it is for that purpose that the matter now comes before me. The s. expenses claimed by Ms. Aaston include dental work of $112.90 for Kristin prior to October 1, 2005, orthodontic work for Brina and costs associated with Brina’s post-secondary education. It is uncontroverted that Brina has disabilities which necessitate certain tools such as computer for her to be successful in her post-secondary training. 6) Mr. Alm accepts responsibility for his proportionate share of the girls’ dental and orthodontic expenses. Accordingly, there shall be an order that Mr. Alm immediately pay to Ms. Aaston his 66% share, being $74.18 of Kristin’s dental expenses incurred prior to October 1, 2005. There shall also be an order that Mr. Alm pay his proportionate share, being 66% of the costs of Brina’s orthodontic work. These costs total $1,850 and Mr. Alm’s proportionate share would be $1,221.00. Mr. Alm indicates portion of these costs may be covered by his health plan. If this is the case, he is to provide written confirmation of this to Ms. Aaston within 21 days, including the amount covered. He will then be responsible for 66% of any amount not covered by his plan. It is understood that any reimbursement from his plan would be provided to Ms. Aaston. In the event there is no insurance coverage, Mr. Alm shall pay his proportionate share of the orthodontic cost, being $1,221 at the rate of $101.75 per month, commencing October 1, 2005 and continuing on the 1st day of each and every month thereafter until paid in full. In addition, Mr. Alm shall pay his proportionate share, being 66% of the cost of any retainers required by Brina. Ms. Aaston shall provide to Mr. Alm within 10 days of the receipt thereof, any bills pertaining to such retainers and Mr. Alm shall confirm what, if any, portion of these costs are covered by his health plan within 30 days. Mr. Alm shall pay his 66% share of the cost of the retainers after insurance coverage. Again, the insurance proceeds should be paid to Ms. Aaston. 7) The s. expenses claimed by Ms. Aaston with regard to Brina’s post-secondary education are set out in Exhibit “D” to her November 3, 2005 affidavit. These expenses relate only to the 2005 fall term though she indicates that doubling those expenses will result in fairly accurate estimate of the costs for Brina’s full 2005/06 university year. Mr. Alm objects to some of the expenses listed in Exhibit “D”. Those expenses include: Crisis prevention class with books $129.70 Zellers supplies 50.86 Black cartridge for the printer 32.90 Microsoft license 200.00 Computer repairs 100.00 Updated virus protection 75.00 8) It is noted that the September 28, 2004 consent order provided that computer repairs and equipment were included in Brina’s s. 7 expenses. Accordingly, the costs relating to the computer are legitimate s. 7 costs. I also find that the crisis prevention class was a reasonable expense incurred on Brina’s part and will assist her in her future plans. The Zellers supplies, however, would normally be covered under the Table support. Accordingly, that expense shall be disallowed. 9) I find Brina’s s. 7 post-secondary education expenses for the 2005/2006 year to be $7,123.72 calculated as follows:University of Saskatchewan fall and spring terms ($932.97 x 2) $1,865.94University of Regina fall and spring terms ($1,501.30 x 2) 3,002.60Crisis prevention class with books 129.70University of Saskatchewan books (fall and spring terms)($401.09 x 2) 802.18Bus pass (fall and spring semesters $200 x 2) 400.00Black cartridge for the printer 32.90Shaw internet (August to July, inclusive – 12 x $42.95) 515.40Microsoft license 200.00Estimated computer repairs 100.00Updated virus protection 75.00Total: $7,123.72 10) There shall be an order that Mr. Alm pay his 66% of these expenses, being $4,701.66 per annum, by paying $391.80 per month commencing October 1, 2005 and continuing on the 1st day of each and every month thereafter until further order of the Court. 11) Ms. Aaston has indicated that she shall have good idea of Brina’s post-secondary costs with regard to the 2006/2007 university year by September, 2006. There shall be an order that she provide list of those expenses, with any documentation she has to support the same, to Mr. Alm by September 15, 2006 and that she also provide evidence of any student loans or other contributions by third parties to these expenses. The s. expenses should be adjusted effective October 1, 2006 for the 2006/2007 university year. 12) As the results of the application are mixed, there shall be no order as to costs. J. J. A. Ryan-Froslie

FIAT: The sole issue before the court is the amount to be fixed for the ongoing s. 7 expenses. The s. 7 expenses claimed by the petitioner include dental work of $112.90 for Kristen, orthodontic work for Brina and costs associated with Brina's post-secondary education. It is uncontroverted that Brina has disabilities that necessitate certain tools such as a computer for her to be successful in her post-secondary training. HELD: 1) The respondent accepts responsibility for his proportionate share of the girls' dental and orthodontic expenses and there shall be an order accordingly. 2) The September 2004 consent order provided that computer repairs and equipment were included in Brina's s. 7 expenses. Accordingly the costs relating to the computer are legitimate s. 7 costs. 2) The crisis prevention class was a reasonable expense incurred on Brina's part and will assist her with her future plans. 3) The Zeller's supplies would normally be covered under the Table support and that expense is disallowed. 4) Brina's s. 7 post-secondary expenses are $7,123.72 and include tuition, crisis prevention class and books, required university books, bus pass, black cartridge for the printer, Shaw internet, Microsoft licence, computer repairs and updated virus protection.

9_2005skqb484.txt

nan Editor’s Note: The present decision has been corrected as of March 18, 2005. 2005 SKPC 08 Information 35870650 IN THE PROVINCIAL COURT OF SASKATCHEWAN AT REGINA, SASKATCHEWAN Between: HER MAJESTY THE QUEEN and LAURENT TOUPIN Ms. Inez Cardinal Counsel for the Crown Mr. Aaron Fox Counsel for the Defendant Note: an order pursuant to section 486(3) of the Criminal Code has been made directing that the identification of the complainant and any information that could disclose the identity of the complainant or witness shall not be published in any document or be broadcast in any way. January 14, 2005 LA Matsalla, P.C.J. JUDGMENT [1] Mr. Toupin is charged that, on or about the 21st day of August, A.D. 2003, at or near[…], Saskatchewan, he did commit a sexual assault on T.D. contrary to section 271 of the Criminal Code. The Crown elected to proceed summarily. [2] Ms. T.D. was employed as clerk at the Provincial Court Building on [...]. She assumed her duties in 1998 and although she testified that she knew of the accused in 1999, it is much more likely that she met him in the spring of 2002 after he had assumed his duties as Justice of the Peace in the same building. [3] It appears that there are limited number of employees who worked in the building and so there was, according to Walter Wilhelms- prosecutor from August 2002 to August 2003 who worked in the Bylaw Court “family atmosphere” in the building presumably because everyone knew one another. The staff and the Justices of the Peace (one of whom was working full time and number of others (including the accused) who worked on part time basis) and persons who worked in the building but had offices outside the building, frequently had coffee and socialized together. As might be expected, the persons who worked full time in the building interacted most frequently. Considerable joking and teasing frequently took place amongst all of these persons. believe that many of the jokes that passed between the men and women, both verbal and written, frequently had sexual connotations to them and some were explicitly sexual in nature. Some persons made point of making numerous copies of the jokes for the purpose of distribution. [4] From the evidence that have heard, it appears that personal information was also exchanged amongst the staff members. T.D. told the accused that she had been member of the R.C.M.P. at one time. Mr. Wilhelms, whose office was not in the building and who only attended at court when necessary, was aware of some of the complainant’s personal life. Some of the comments that were made by some staff members (including the accused) to other staff members (including the complainant) were blunt and personal and were meant to be taken as humorous comments. Even man who the complainant had known for long time made comments to her that embarrassed her. T.D. said that she could take joke but there was limit. If the “off coloured talk”, to use her words, became “a little bit to much, and if it was offensive or took it as little too personal went and told my boss.” (transcript, volume II page 205, lines 10 to 13). Ms. D. testified that she complained to supervisor about comments that the accused had made to her and she was told that the accused was only joking, that she should not take the comments personally and so she reacted as follows (v. II p. 205, l. 18-26 and p. 206, l.1 ...and so okay, you know, just got to keep on going to work, put up with the crap and just try to keep friendly atmosphere at work. didn’t want to be bitch. Mmhmm. there was days wanted to punch him (referring to the accused) in the mouth, but just had to keep on going to work Okay... and take it like joke, laugh it off, laugh it off, and that’s I’m sorry. (The words in italics have been added) Ms. D. described how she felt at the time that some of the more explicit sexual comments were made by Mr. Toupin (v.II, p. 222, l.16-20), was feeling humiliated. was feeling like was that he (once again referring to the accused) was sometimes wearing his robe, and felt like was intimidated. just had to sit there and listen and take it because no matter what said to anybody they weren’t going to take it serious because of who he was. [5] This, then, was the atmosphere in which the incidents now before the court occurred. [6 The accused was police officer with the Regina Police Service for 25 years until he retired in the fall of 1999 with the rank of Deputy Chief of Police. After he retired, he completed Bachelor of Education degree at the University of Regina and thereafter, in the fall of 2001, he was appointed Justice of Peace. [7] It is important to examine certain events that took place between T. D. and the accused over period of about one year from September 2002 to late August 2003. Instances of Interaction between the Parties [8] The evidence discloses that T. D. was married in August of 2002. Prior to that time, T.D. would, from time to time, return to work after weekend trip to Winnipeg to visit friends and he and other co-workers (including the accused) would, in jest, ask her if she “got lucky”(referring to whether she had intimate contact with anyone). Her recollection is that other staff members made similar comments to other staff members. She would laugh and respond in the negative. She recalls that she would on occasion tell him to mind his own business. Mr. Toupin said that he would “help (her) in that department sometime”. By that comment understand the accused to mean that he was offering to engage in sexual conduct with her. She said that she was shocked by the comment and she responded by saying “oh, you think so.” (v.II, p. 219, l. 2-6). She recalls that she reported such comments to her supervisor. [9] In September of 2002, Mr. Toupin approached Ms. D. to see if she would be interested in selling nutritional product that he was promoting. She says that, on numerous occasions, he invited her to number of meetings at which the sale of the product was to be discussed. She never went to any of the meetings because she was not interested. He persisted by asking her to take basket of product home to try out. She took the basket home but she did not bother to try the items. He later requested that the product be returned and when she failed to do so she thought that the only way to get the basket to him would be for him to pick it up at her residence. She provided him with her address and phone number and when he attended at her residence she returned the basket to him. Some conversation took place about some cracking that had taken place in her house and the accused offered to give her the name of friend who might be able to help her repair the cracks. While she was showing him the work that she had done to her yard, she recalls that he touched her on her right side and when she asked him what he was doing she believes that he apologized and that he may have said that he had forgotten that she was “spoken-for-women”. Her impression from his response was that the touching would not happen again. He disputes her version saying that he did not make the comment nor did he touch her but he does recall that feeling came over him that “she expected (him) to do something, like kiss (her) or something like that”. (v. III, p. 402, l. 5-6). [10] Before Christmas 2002, Mr. Toupin recalls buying her chocolates but, after having heard the evidence on the point, believe that he did not plan, in advance, to give her the chocolates but that he ended up doing so at the last moment when he discovered that he could not give the gift to another person. [11] In January of 2003, Ms. D. dropped television set on her leg and when she came to work she was experiencing some difficulty. She lifted her pant leg to show the accused her bruise and he took it upon himself to raise the matter with her supervisor and, as result, she was taken to the hospital to have her injury examined. [12] Although Ms. D. is not clear on the date, she recalls that during the summer of 2003 the accused, on at least one occasion, asked her what she thought of oral sex and extramarital sex. She says that she told him that she did have sexual relations with persons others than her husband with her husbands knowledge and that she enjoyed oral sex. He said that he enjoyed oral sex as well and he said that she told him that the conversation was making her “wet”. gather from the comment that she was aroused by the discussion. Ms. T.D. said that during one of these conversations he offered to “lick (her) pussy” to which Ms. D. responded by laughing and saying “Yeah okay, will keep that in mind”. She testified that the remark shocked and offended her and that she did not know how to respond. The accused would ask her if she was sexually fulfilled and she would respond by telling him that her marriage would not stop her from getting “some” (referring to intimate contact). At times she would laugh at him, call him “a pig” or say that he was “crazy” when he made similar comments to her. Ms. D. recalls one such comment, however Mr. Toupin recalls or similar conversations over the summer. At all times, it appears that all of the discussions had been initiated by the accused. [13] In June or July of 2003, the accused was aware that Ms. D. needed lawn mower and he offered to check to see if neighbour had one for sale. According to her, when she advised him that she would buy the mower he offered to bring it to her house but she declined to have him come to her residence and she took possession of the mower in the parking lot across from her work place. He testified that the only arrangement made for delivery was in the parking lot. When she did not have money to pay for it, he offered to drive her to the bank teller machine to get some money. On this occasion, he said that he felt “vibration” between them “...but nothing occurred”. (v. III, p. 407, l.8-9) He suggested that she come to his condominium to use the swimming pool. She thought that he wanted to see her in bathing suit and so, in order to dissuade him, she suggested that her son may be interested. She did not respond to the suggestion. [14] She recalls that in July or August of 2003, Mr. Toupin asked her to obtain some information respecting certain offenders who had allegedly stolen his vehicle. She checked on the status of the matter for him. [15] The accused did not at any other time call T.D. at home or ask her to accompany him alone outside the work place for the purpose of making conversation or for the purpose of socializing. T.D. did not specifically tell the accused to stop making the comments. She did not tell him that she had spoken to her supervisor about his comments. She testified that her way of handling the comments was to “laugh (them) off.” She described her response to the comments in the following fashion (v.II, p. 239, l. 18 -26) What am supposed to do? could have punched him in the face. could have kicked him in his nuts. could have did whatever wanted to do to get him off of me, but can’t do that. would have been sitting here on trial for assault or something. can’t I’m supposed to act professional, and don’t want to lose my job over somebody else’s stupidity or because they’re pervert or whatever. I’m just supposed to keep on going to work and put up with the crap? No further contact of note occurred between the parties prior to the incident on August 21. The subject matter of the charges [16] While there is some consistency as to the incidents that occurred prior to August 21st, the same cannot be said about the events of August 21st. (a) The Complainant’s evidence [17] T.D., on occasion, was required to work in the Youth Court office on the third floor of the building. One of her duties was to retrieve files pertaining to certain persons who had cases in court because documents had to be prepared in relation to the court appearance. According to her, at about 11:30 in the morning on August 21, 2003, while she was filling in for staff member, she had picked up some files and she was returning to the general office to complete related documents. As she proceeded down the hallway she passed the doorway to courtroom #10 through which judge would normally enter and she heard her name. The courtroom was not otherwise in use at the time. After discovering that the accused had called her, she entered the dimly lit courtroom finding him in his robes and she asked him what he wanted. At the time she was holding some files in her right hand. He took her left hand and placed it over his clothing onto his erect penis where he rubbed her hand into his crotch. She was surprised and quickly pulled back her hand asking him what he was doing and telling him that he was crazy, that he was going to get into trouble or he could get caught and that he should leave her alone. She was shocked and shaking as she backed out of the courtroom. She then saw Mr. Wilhelms who had walked out of another courtroom. He asked where the accused was and she directed him to the open doorway. She then testified that she “took off down the hallway” to the Youth Court office where she felt obliged to complete some necessary documents since she was the only clerk available. [18] Some minutes later, while she was at her work station attempting to complete the documents, she felt the accused’s hands on her breasts and, at the same time, he was rubbing his penis into her back. When she turned in her chair she saw the accused still in his court robes. She said that she told him to leave her alone and when she swivelled in her chair to get away from him, he came close enough to put his lips on her face and he placed his hand on her crotch saying that he wanted to “fuck” her. She said he may have attempted to take her hand once again but she resisted his attempt to kiss her and she tried to avoid his contact with her crotch. She responded by telling him that he was crazy, that he could get into trouble and that he could get caught. He then said that he would leave her alone and he told her that if she changed her mind he would be waiting in his office. [19] Ms. T.D. told the court that she was shaking and that she did not know what to do. She finished some of her work and then left for lunch with some staff members. In chief, she described her conundrum (v.II, p. 245, l. 4-11), ... didn’t know what to do. Was supposed to tell everybody that he did this. didn’t know what to do. Like, had gone to the supervisor before with all the things he had said. No, it’s just joke. It’s just joke. They didn’t want to help me or do anything. thought was in you know who is going to believe me. This is supposed to be Judge or, you know, that kind of thing. Mmhmm. And thought no one is going to listen to me, but told him to leave me alone, and he kept on touching me. After lunch she did not finish all of her work. For number of days thereafter she was working out of the office at various locations outside the city of […]. In fact, her job took her out of the office for about two weeks. She says that she reported the incident to her supervisor and was away from work for about two weeks. As understand it, early in the two week period she received telephone message from the accused telling her that he needed to talk to her and asking her to return his call. He provided her with his cell number. She did not call him but she did forward the message to her supervisor. [20] On September 10th, she was asked by her supervisor to provide brief statement. In the statement she did not describe the accused rubbing his penis on her back, attempting to kiss her or touching her crotch although in later statement she did refer to the latter. The [...] Police Service became involved and she provided another statement to Cpl. Pratt on September 26th. (b) The Accused’s evidence [21] Mr. Toupin testified. He acknowledges that in courtroom #10 he did indeed take T.D.’s hand and guide it to his groin, however he did not rub her hand into his groin rather T.D. squeezed his semi-erect penis for “a matter of second” and during that time he had removed his hand from hers. He recalls that she laughed. The incident took 20 to 30 seconds and prompted T.D. to tell him that he was crazy. He could not recall where T.D. was when Mr. Wilhelms advised the accused that court was ready to proceed but she then left the room and he proceeded to deal with matters in court. The accused believed that in light of the conversations that he and she had had prior to August 21st that “there was never ever any indication that that she wasn’t consenting to it. Had there been, as said, wish would have heard something because wouldn’t be here today.” (v. III, p. 430, l. 1-5) [22] Mr. Toupin’s version of the incident in the general office differs significantly from that of the complainant. After court had concluded, he approached T.D.’s desk and asked her if she wanted to touch him again and she did touch and squeeze his erect penis over his clothing. He asked her if she wanted to do it again but she said that “we should be careful. Somebody could come in through the front door,” (v. III, p. 432, l. 25). He then suggested that she give him call or come to his office. He went on to say that he may have rubbed the side of her breast with the back of his hand but he definitely did not grab her breasts. He denied rubbing his penis against her back and he did not touch her crotch nor did he tell her that he wanted to “fuck” her. His impression was that the incidents would be the start of sexual relationship, however, since that day, he did not have any contact nor did he have any conversation with her. He admits that subsequent to discovering that complaint had been filed by T.D., he did leave phone message with her asking that she call him. Mr. Toupin said that week or two after the incident he received call from the senior presiding Justice of Peace for the province who gave him letter from the Chief Judge. Mr. Toupin resigned his position shortly thereafter. According to him, at no time did he have any discussion with T.D.’s supervisor or with the senior presiding Justice of the Peace about any of his comments to her or about any of the conversations that he had had with T.D. [23] At the end of the day, Mr. Toupin’s perception of his relationship with T.D. can be seen from this exchange between him and Crown counsel (v. IV, p. 668, l. 3-13) And you recall that, you know, you testified that as long as since (T.D.) hadn’t given you any indication that she didn’t want this touching to occur, that that’s why you continued to pursue it? If (T.D.) would have ever given me an indication that she didn’t want anything it wouldn’t have happened. Well, sir, you didn’t ask her if she wanted it, did you? You know what, when she’s agreeing to these conversations of very personal nature, that’s pretty indicative to me that she is fully and cognizantly participating in these conversations. (c) Mr. Toupin’s Statement to the Authorities [24] In the midst of the cross-examination of the accused, the Crown made an application to question him on statement that he had made to persons in authority on January 14, 2004. The statement consisted of video taped conversation supported by transcript of the conversation. After had determined that the statement had been provided voluntarily, the defence argued that the statement should be excluded on the basis that Mr. Toupin had been detained and that his right to counsel under section 10(b) of the Charter had been infringed. concluded that the accused had not been detained and that the defence had failed to establish breach of his rights. [25] The defence took the position that permitting the Crown to use the statement to cross-examine the accused was tantamount to allowing the Crown to enter the statement as evidence and, in that manner, to allow the Crown to split its case. Crown counsel took the position that it did not intend to tender the statement in evidence. After considering the argument, was of the view that, on the basis of R. Dickie (1970), 1970 CanLII 577 (SK QB), C.C.C. (2d) 396 MacPherson Q.B.), the statement could be used in cross-examination for the purpose of attacking the credibility of the accused. [26] It was evident that, after being advised through Mr. Webster’s office that complaint respecting his conduct toward T.D. had been filed, the accused responded to an invitation from the […] Police Service to attend at the police station. He said he believed that the interview was to relate to another matter and not to the complaint. At the time he believed that the matter was closed and so when questioned about it he became aware, for the first time, that police investigation was underway. Mr. Toupin “was flabbergasted by the charges” (v. IV, p. 649, l. 16). He said that he intended to provide information to the police however he did not advise them that he had, in courtroom #10, taken T.D.’s hand and put it on his penis rather, he said that he made comment to T.D. that surprised her. He went on to wrongfully advise them that thereafter court clerk and not Mr. Wilhelms had approached to advise that the parties were ready to proceed in court. Mr. Toupin incorrectly suggested that T.D., while speaking to them, had verbally “stumbled” when she spoke to him outside the courtroom. He told the police that his comments to T.D. were only meant to be jokes. In court, he insisted during his testimony that his comments to T.D. were not jokes but were part of serious conversation. He did not tell the police about the second incident in the Youth Court office. His reason for being less than forthcoming was that the occasion was the first time that he had been asked about the incident, that he was embarrassed about answering questions from police officers with whom he had worked with for many years and, most importantly, he did not want his wife (a […] employee) to find out about the incident. In any event, Mr. Toupin insists that his actions with T.D. were innocent and consensual. He said that he only wanted to give the police enough information to enable them to speak to T.D. and to confirm the innocence of his contact with her. (d) Credibility [27] As is often the case at the trial level, conflicting versions of an incident necessitates finding on the issue of the credibility of witness. The Supreme Court of Canada, in R. W. (D) 1991 CanLII 93 (SCC), [1991] S.C.R. 742, and the British Columbia Court of Appeal, in R. C.W.H. (1991), 1991 CanLII 3956 (BC CA), 68 C.C.C. (3rd) 146, have suggested that the following set of instructions ought to be put to jury when considering the issue, “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.” The instructions have been favourably referred to by our Court of Appeal in R. McKenzie (1996), 1996 CanLII 4976 (SK CA), 106 C.C.C. (3rd) at 5. [28] Prowse, in Working Manual of Criminal Law, Carswell at 125, concisely sets out factors that the Supreme Court suggests can be considered in determining the credibility of witness. The factors include the following, (a) Whether the witness is honestly endeavouring to tell the truth; (b) Whether the witness is sincere and frank; and (c) Whether the witness is biased, reticent and evasive. (2) Specifically (a) The witness’s general integrity and intelligence; (b) The witness’s powers to observe; (c) The witness’s capacity to remember; (d) The witness’s accuracy in statement; and (e) The relationship that the witness had with the accused. [29] It is necessary to remember that trial is not competition between witnesses who testify for the Crown or for the defence. The ultimate question is not which side ought to be believed but whether, on the evidence that accept, the Crown has proven the elements of the offence beyond reasonable doubt. [30] It is necessary that certain findings of credibility be made in this case. i. The Evidence of T.D. [31] Ms. T.D. is single mother who is caring for young son. She was employed as clerk for about years prior to the date of the charge. It is evident that her job is important to her and that she was intent on doing good job. [32] observed young women who had no airs about her. She spoke bluntly and, believe, she can give as well as she can take when it comes to social discourse. When asked about her attitude to sex in and out of marriage she responded candidly however even she was bothered by some other comments that were particularly crude. [33] She gave her evidence in an honest and straightforward fashion. She was vigorously cross-examined. While her recollection was not perfect and her evidence was not consistent on every point, believe that she did her best to relate her evidence as accurately as she could recall it. She was required to specifically describe number of incidents that took place over period of about year and then year after the last of the incidents had taken place and believe her recollection was accurate. After reviewing her testimony carefully cannot say that she attempted to be evasive or that she, in any other way, provided her evidence in an effort to mislead. [34] The evidence clearly indicates that the accused pursued her to make conversation - much of it sexual in nature. Even the evidence of the accused confirms that she did not encourage the conversation and so it is not surprising that she did not recall every detail of each incident that occurred prior to August 21st. She did not have any interest in him. She did not respond to his persistent requests to become involved in his sales venture. When he wanted to see her at her house or to come to his residence she avoided him. She complained to her supervisor about his conduct. After the August 21st incident, she did not return his call to her nor did she have anything to do with him. Her conduct was entirely consistent with someone who wanted little to do with the accused. [35] watched her carefully as she provided her version of the incidents of August 21st. She readily prepared diagram of the third floor of the building to show the court where the incidents had taken place. She described what had occurred in the courtroom and she then provided detailed evidence as to how the accused approached her and touched her in the Youth Court office. While on the stand, she physically reenacted her response to his touch. Her evidence was punctuated with expressions of disgust as she described the accused’s comments to her and his actions At times she was especially emotional when she testified that she thought that she had little choice but to tolerate his comments and, again, when she described her response to his actions after the incidents. do believe that the emotion that she expressed was genuine. [36] Her evidence was not rehearsed nor do believe that it was concocted. In short, believe her evidence. (ii) The Evidence of the Accused [37] At times the accused gave his evidence in what appeared to be mechanical, matter-of-fact manner that seemed like more of recitation of the facts as he saw them than description of genuine friendship with T.D. that he had reason to believe was developing into something more than friendship. [38] It is of some significance that when he spoke to the police about T.D.’s complaint that he was evasive and that his description then was inconsistent with his evidence in court. [39] At the end of the day was less than impressed with his testimony. (e) Conclusions on the evidence [40] Respecting the first incident on August 21st, the version provided by each of the parties had some similarities. The accused initiated the contact in the courtroom without any prior discussion or contact with T.D. that day and it was he who brought her hand to his crotch. He admitted that he was erect or semi-erect indicating that before the first incident he was likely already aroused. It is note worthy that there was no physical contact between the two in the months leading to August of 2003 and so it is reasonable that she would be shocked when, on this occasion, he grabbed her hand. am satisfied that T.D. accurately described the incident. do not believe that she consented to the physical contact or that she participated in that contact. [41] In so far as the second incident in the office is concerned, once again believe T.D.’s evidence as to what transpired. His aggressive conduct toward her in the Youth Court office (touching her breast and crotch and trying to kiss her) is entirely consistent with the aggressive conduct he displayed in courtroom #10. He was still aroused even after he had conducted court. His testimony that T.D. initiated the contact in the office is inconsistent with the fact that he continually initiated discussions of sexual nature prior to August 21st and that on the 21st he also initiated contact with T.D. in courtroom #10. Issues [42] a. Whether the Crown has proven the actus reus of the offence, andb. Whether the Crown has proven the mens rea of the offence. Criminal Code Provisions [43] The Crown elected to proceed by way of summary conviction. [44] Section 271 reads as follows: Everyone who commits sexual assault is guilty of b) an offence punishable by summary conviction and liable to imprisonment for term not exceeding eighteen months. [45] The pertinent provisions of section that defines an assault (s. 265) read as follows: (1) person commits an assault when (a) without the consent of the other person, he applies force intentionally to that other person, directly or indirectly;... (2) This section applies to all forms of assault, including sexual assault, sexual assault with weapon, threats to third party or causing bodily harm and aggravated sexual assault. (3) For the purposes of this section no consent is obtained where the complainant submits or does not resist by reason of (a) the application of force to the complainant or to person other than the complainant;... (4) Where an accused alleges that he believed that the complainant consented to the conduct that is the subject matter of the charge, judge, if satisfied that there is sufficient evidence and that, if believed by jury, the evidence would constitute defence, shall instruct jury, when reviewing all the evidence relating to the determination of the honesty of the accused’s belief, to consider the presence or absence of reasonable grounds for that belief. [46] Section 273.1 defines “consent” in the following subsections: (1) Subsection (2) and subsection 265(3), “consent” means, for the purposes of section 271, 272 and 273, the voluntary agreement of the complainant to engage in the sexual activity in question. (2) No consent is obtained, for the purposes of section 271, 272 and 273, where (a) the agreement is expressed by the words or conduct of person other than the complainant; (b) the complainant is incapable of consenting to the activity; (c) the accused induces the complainant to engage in the activity by abusing position of trust, power or authority; (d) the complainant expresses, by words or conduct, lack of agreement to engage in the activity; or (e) the complainant, having consented to engage in sexual activity, expresses, by words or conduct, lack of agreement to continue to engage in the activity. (3) Nothing in subsection (2) shall be construed as limiting the circumstance in which no consent is obtained. [47] On the matter of consent, s.273.2 restricts the defences that are available to an accused. The section reads as follows: It is not defence to charge under section 271, 272 or 273 that the accused believed that the complainant consented to the activity that forms the subject-matter of the charge, where (a) the accused’s belief arose from the accused’s (i) self-induced intoxication, or (ii) recklessness or wilful blindness; or (b) the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting. [48] Corroboration is not required in prosecution of an offence under an offence of s. 271. Interpretation of the Law [49] One of the leading cases in the area is the case of R.. Ewanchuk 1999 CanLII 711 (SCC), [1999] S.C.R. 330. [50] The Crown must prove that sexual assault had taken place and that the accused intended to commit the act. Dealing firstly with the requirement that the Crown must prove that the act occurred, Major in Ewanchuk at 347 said this The actus reus of sexual assault is established by the proof of three elements: (i) touching, (ii) the sexual nature of the contact, and (iii) the absence of consent. The first two of these elements are objective. It is sufficient for the Crown to prove that the accused’s actions were voluntary. The sexual nature of the assault is determined objectively; the Crown need not prove that the accused had any mens rea with respect to the sexual nature of his or her behaviour: see R. Litchfield, 1993 CanLII 44 (SCC), [1993] S.C.R. 333, and R. Chase, 1987 CanLII 23 (SCC), [1987] S.C.R. 293 and regarding the 3rd element, at 348, The absence of consent, however, is subjective and determined by reference to the complainant’s subjective internal state of mind towards the touching, at the time it occurred: see R. Jensen. (1996), 1996 CanLII 1237 (ON CA), 106 C.C.C. (3d) 430 (Ont. C.A.), at pp 437-38, aff’d 1997 CanLII 368 (SCC), [1997] S.C.R. 304, R. Park, 1995 CanLII 104 (SCC), [1995] S.C.R. 836, at p. 850, per L’Heureux-Dube J., and D. Stuart, Canadian Criminal Law (3rd ed. 1995), at 513. At 349 the Court went on to say, The Complainant’s statement that she did not consent is matter of credibility to be weighed in light of all the evidence including any ambiguous conduct. The question at this stage is purely one of credibility, and whether the totality of the complainant’s conduct is consistent with her claim of non-consent. The accused’s perception of the complainant’s state of mind is not relevant. That perception only arises when defence of honest but mistaken belief is raised in the mens rea stage of the inquiry. [51] On the issue of consent, can only reach one of two conclusions either the complainant consented or she did not. It cannot be said that her consent could be implied, see Ewanchuk at 349 para. 31. [52] The Crown can establish the accused’s guilty state of mind by showing that he intended to touch the complainant however, for an offence to take place the touching must be culpable and not innocent. Major, at 354 said this on that point, As with the actus reus of the offence, consent is an integral component of the mens rea, only this time it is considered from the perspective of the accused. Speaking of the mens rea of sexual assault in Park supra, at para. 39, L’Heureux-Dube J. (in her concurring reasons) stated that:the mens rea of sexual assault is not only satisfied when it is shown that the accused knew that the complainant was essentially saying “no” but is also satisfied when it is shown that the accused knew that the complainant was essentially not saying “yes”. In order to cloak the accused’s actions in moral innocence, the evidence must show that he believed that the complainant communicated consent to engage in the sexual activity in question. belief by the accused that the complainant, in her own mind wanted him to touch her but did not express that desire, is not defence. The accused’s speculation as to what was going on in the complainant’s mind provides no defence. [Emphasis in the original] [53] It is clear that “silence, passivity or ambiguous conduct” on the part of the complainant cannot provide the accused with defence. At 356 the court said Similarly, an accused cannot rely upon his purported belief that the complainant’s expressed lack of agreement to sexual touching in fact constituted an invitation to more persistent or aggressive contact. An accused cannot say that he thought “no meant yes”. As Fraser C.J. stated at p. 272 of her dissenting reasons below: One “No” will do to put the other person on notice that there is then problem with “consent”. Once woman says “no” during the course of sexual activity, the person intent on continued sexual activity with her must then obtain clear and unequivocal “yes” before he again touches her in sexual manner. [Emphasis in the original] [54] Section 273.2(a)(ii) of the Criminal Code provides that person who is willfully blind or reckless in his belief that person has consented to sexual activity cannot rely on the defence of honest but mistaken belief in consent. [56] The defence can be established upon evidence that can realistically and reasonably be capable of supporting the defence (see v. Park [1985] S.C.R. 836 at 853). Such evidence must point to belief on the part of the accused that the complainant communicated consent to engage in the sexual activity. It is not sufficient for him to believe that the complainant in her own mind desired the activity. He cannot speculate as to what she may have on her mind (Ewanchuk at 354). The court in Park referred favourably to Madam Justice McLaughlin (as she then was). in R. v. Osolin 1993 CanLII 54 (SCC), [1993] S.C.R. 595 who described the belief at 649-50 as follows ...the accused’s mere assertion of his belief is not evidence of its honesty. The requirement that the belief be honestly held is not equivalent to an objective test of what the reasonable person would have believed. But nevertheless it does require some support arising from the circumstances. belief which is totally unsupported is not honestly held belief. person who honestly believes is person who has looked at the circumstances and has drawn an honest inference from them. Therefore, for belief to be honest, there must be some support for it in the circumstances. person who commits sexual assault without some support in the circumstances for inferring the consent of the complainant has, at very least, been wilfully blind as to consent. [Emphasis added in Park at 853] [57] The defence can only be considered by the finder of fact if it has an “air of reality”. In Osolin at 648-49 McLaughlin J. said In order to give an “air of reality” to the defence of honest but mistaken belief, there must be (1) evidence of lack of consent to the sexual acts; and (2) evidence that notwithstanding the actual refusal, the accused honestly but mistakenly believed that the complainant was consenting. It is important that the Judge ought not to assess the credibility of witness or to weigh the evidence when deciding whether the defence has an “air of reality” (Park at 848). Cory J. in Osolin at 682 defined the phrase as follows, The “air of reality” simply means that the trial judge must determine if the evidence put forward is such that, if believed, reasonable jury properly charged could have acquitted. If the evidence meets that test then the defence must be put to the jury. [58] Madam L’Heureux-Dube in Park at 856 put the question to be decided as follows Put another way, is it realistically possible for properly instructed jury, acting judiciously, to splice some of each person’s evidence with respect to the encounter, and settle upon reasonably coherent set of facts, supported by the evidence, that is capable of sustaining the defence of mistaken belief in consent? If the stories cannot realistically be spliced in such manner, then the issue really is purely one of credibility of consent or no consent and the defence of mistaken belief in consent should not be put to the jury. [59] It has often been held that the court must look at the “totality of the circumstances” (Park at 848) to determine if an air of reality to the defence exists. [60] helpful guide to the analysis that court must undertake was provided by Major J. in Ewanchuk at 359-361. Analysis [61] I am satisfied that touching did occur in courtroom #10 and that the accused compelled T.D. to touch him and there can be no doubt that the touching had a sexual nature. The accused’s conduct was spontaneous and carried out without any advance notice to the complainant and without her consent. The actus reus with regards to the first incident has been made out. believe T.D.’s description of the incident in the general office. cannot accept the accused’s version of the events because do not believe his evidence. Touching of a sexual nature took place and the complainant did not consent to the contact. The actus reus has been proven with respect to that incident as well. [62] Insofar as the state of mind of the accused is concerned, the accused has taken the position that T.D. did consent but even if he was mistaken as to her consent his actions were not culpable. In other words, he argues that he had an honest but mistaken belief that she had consented to the contact. Before considering the defence, however, must decide if any evidence exists so as to give that defence an air of reality. The simple suggestion that the accused thought that the complainant consented to the contact is insufficient. am not to compare the accused’s belief with the belief that any reasonable person may have held in the circumstances. Without weighing the evidence, must look at all of the evidence (even the evidence of the complainant) to determine if there is some support for the belief that Mr. Toupin claims to have held at the time. Honest but Mistaken Belief in Consent [63] I have had no difficulty concluding that most of the employees in the building were often subject to or the source of numerous crude jokes and comments that were of a sexual nature. These exchanges had been ongoing for some time and it does not appear that anyone considered the discussions to be serious conversation. The accused, however, believes that his discussions with T.D. about such matters were serious. It must have become readily apparent to him from his participation in these discussions with that T.D. could be blunt, direct and honest about sexual matters. She participated in the exchanges even though at times she responded by calling him pig and saying that he was crazy. [64] At no time did the accused express his desire to get to know her or to see her outside the work place. It is clear that he did not raise the possibility of physical relationship nor did she express any interest in sexual liaison. In fact, when he suggested that he would be available to do so she was less than enthusiastic. He knew that she was sexually active outside her marriage yet she showed no sexual interest in him. The other instances described by the accused are more consistent with normal interaction between persons in that particular work place than with an indication of consent to sexual activity. [65] The accused was the view that since T.D. was willing to participate in conversations that were of sexual nature, she must have consented to touching that was of sexual nature. Since she did not say that she was not consenting then she was consenting. This interpretation of consent is not in accord with the authorities. [66] It must be remembered that the numerous instances upon which Mr. Toupin bases his belief are scattered over period of about one year. The accused himself does not describe relationship that was intensive or that could be taken as developing into sexual relationship between the two. Later, when Toupin’s offer to perform oral sex was greeted by T.D. without enthusiasm and yet later when T.D. refused the accused’s offer to deliver the lawn mower to her house prompting delivery in parking lot, one would expect that the accused would have received message. After looking at all of the evidence, I cannot see anything in the evidence to support an honest belief on the part of the accused that T.D. consented to the sexual contact in question. reach this decision without making determination about the credibility of the witnesses and without weighing the evidence. Therefore the accused’s suggestion that he had an honest but mistaken belief in consent cannot be considered because I cannot cobble together from the totality of the evidence sufficient evidence from which it could be said that the accused could have drawn an honestly held belief or from which he could have honestly inferred that the complainant had consented to his touching her . [67] Even if it could be said that the accused could have held an honest belief in consent on the basis of the instances referred to earlier in this decision, must determine if he did honestly believe that the complainant communicated consent to him. do not accept the accused’s evidence and so do not believe him when he says that he honestly believed that she consented to the contact. He was so aroused and so intent on relieving his sexual energy that he did not care to seek the complainant’s consent to engage in sexual contact. He was oblivious to whether the complainant wished to engage in the conduct and he sought only his own sexual satisfaction. [68] Therefore I am satisfied that the Crown has proven beyond a reasonable doubt that the accused sexually assaulted the complainant in both courtroom #10 and in the Youth Court general office. He is guilty as charged. will now hear from counsel on the matter of sentencing. L.A. Matsalla, P.C.J

The accused is charged with committing a sexual assault contrary to s. 271 of the Criminal Code. The accused was police officer with the Regina Police Service for 25 years until he retired in 1999 with the rank of Deputy Chief of Police. In the fall of 2001, he was appointed Justice of the Peace. The Crown proceeded summarily. The first incident involved the accused bringing the complainant's hand to his crotch. The second incident involved the accused touching the complainant's breast and crotch and trying to kiss her. The issues are whether the Crown proved the actus reus and mens rea of the offence. HELD: The accused is guilty of sexually assaulting the complainant in both courtroom 10 and the Youth Court general office. 1) The alleged touching occurred and it was of a sexual nature. The complainant did not consent to the contact. 2) The parties, along with most of the employees in the building, were often subject to or the source of numerous crude jokes and comments of a sexual nature. The accused believed that his discussions with the complainant about such matters were serious. However, at no time did the accused express his desire to get to know her or to see her outside of the workplace. He did not raise the possibility of physical relationship nor did she express any interest in sexual liaison. When he suggested it, she was not enthusiastic. The interactions described by the accused are more consistent with normal interaction between persons in that particular workplace than with an indication of consent to sexual activity. Looking at all the evidence, there is nothing to support an honest belief on the part of the accused that the complainant consented to the sexual contact. The accused's suggestion that he had an honest but mistaken belief in consent cannot be considered because the Court could not cobble together from the totality of the evidence sufficient evidence from which it could be said that the accused could have drawn an honestly held belief or from which he could have honestly inferred that the complainant had consented to his touching her.

e_2005skpc8.txt

J.C. S. IN THE QUEEN'S BENCH JUDICIAL CENTRE OF SASKATOON IN THE MATTER OF AN APPEAL PURSUANT TO SECTION 49.21 OF THE SASKATCHEWAN MEDICAL CARE INSURANCE ACT, R.S.S. 1978, C.S-29 FROM JULY 21, 1992 ORDER OF THE JOINT MEDICAL PROFESSIONAL REVIEW COMMITTEE BETWEEN: CARLOS D.R. HUERTO and THE MINISTER OF HEALTH, THE DIRECTOR OF PROFESSIONAL REVIEW AND THE JOINT MEDICAL PROFESSIONAL REVIEW COMMITTEE RESPONDENTS B.J. Scherman for the appellant D.S. Tapp for the respondents JUDGMENT HUNTER J. June 29, 1994 This is another appeal in a series of cases wherein amedical doctor has been reassessed and ordered to repay moneyfor billings already received as a result of services providedto patients. The Saskatchewan Medical Care Insurance Act,R.S.S. 1978 c. S-29 ("the Act") provides that a physicianaggrieved by an order of the joint medical professional reviewcommittee ("the Committee") may appeal to a judge of the Courtof Queen\'s Bench. There is no further right of appeal. Theappellant, Dr. Huerto ("Huerto"), has been reassessed andordered to pay $384,635.44. The grounds of appeal can be summarized as follows: [1]The committee did not have jurisdiction to enter into the investigation of Huerto. [2]Huerto had reasonable apprehension of bias in respect of Dr. Orchard as member of the committee. [3]The committee committed an error of law and misinterpreted the empowering legislation and their duty under that legislation. [4]The committee exceeded its jurisdiction by basing its decision on irrelevant considerations and thereby abused its discretion and further acted on inadequate materials. [5]There was no evidence to support the decision of the committee on the merits. Before discussing the factual circumstances, the recent decisions in this court establish the following as the grounds on which this court will interfere with the decision of the committee, namely: [1] (a)It exceeded or failed to exercise its jurisdiction; (b) It failed to observe the rules of natural (c) It made an error of law; (d)Its findings were not reasonably supported by the evidence and the material which it was entitled in law to consider. (see: Ramsahoi v. Saskatchewan (Minister of Health) et al. (1990), 1990 CanLII 7328 (SK QB), 85 Sask. R. 42 (Sask. Q.B.) Wedge J.; Barber v. Saskatchewan (Minister of Health) et al. (1991), 94 Sask. R. 37 (Sask. Q.B.) Baynton J.) [2] With respect to the factual findings of the committee, the court must critically examine the evidence and ask whether, taken as whole, it reasonably supports the findings of fact, i.e. examine the reasons by the committee carefully to see whether its ultimate decision is based on reasonable findings of fact. (see: Malhotra v. The Joint Medical Professional Committee, Sask. Q.B., Q.B. 981/90, J.C. Prince Albert, January 22, 1992, Wimmer J. (unreported) and Minhas v. Saskatchewan (Minister of Health) et al. (1992), 102 Sask. R. 171 (Sask. Q.B.) Noble J.) The relevant sections of the Act are as follows: 49(1) There is to be committee called the joint medical professional review committee the majority of the members of which are physicians not employed by the Government of Saskatchewan. 49.1(1) The minister shall appoint person as the Director of Professional Review for the purposes of sections 49 to 49.2(1) In this section and in sections 49.3 to 49.9, "committee" means the joint medical professional review committee established by section 49. (2) Where, in respect of insured services provided by physician, it appears to the director that physician has received or may receive from the minister or that physician has caused or may cause the minister to pay to any person, or both, either directly or indirectly, any amount of money by reason of any departure from pattern of medical practice acceptable to the committee, he may refer the matter to the (3) Where the committee considers matter referred to it pursuant to subsection (2) to warrant investigation by the committee, it shall serve the physician with written notice of its intention to investigate. (5) Where matter has been referred to the committee pursuant to subsection (2), the committee may order that: (a) in the case of insured services for which payment has not been made by the minister, payment should not be made, or should be made at reduced level, for all or any part of the services; (b) in the case of insured services for which payment has been made by the minister, all or part of the amount paid by the minister should be recovered from the physician. (8) In determining whether an order should be made pursuant to subsection (5) or (7), the committee may take into account anything that it considers relevant, including statistical or other comparison between the provision of insured services by the physician whose insured services are being considered and the provision of insured services by other physicians or groups of physicians, but it is not required to examine the provision of any individual insured service that has been provided by the physician. (10) In making an order pursuant to this section, the committee shall observe the rules of natural justice. 49.21(2) The judge hearing the appeal shall consider only the record of the proceedings of the committee with respect to the order appealed from and the evidence presented at those proceedings and may make an order: (a) affirming or varying the order appealed from; (b) refering[sic] the matter back to the committee with directions to reconsider it; or (c) quashing the order appealed from and substituting any order that the judge considers the committee ought to have made. Now to the facts of this case. By letter of October, 1990, the College of Physicians and Surgeons wrote to the Chair of the Committee and expressed concerns related to Huerto's pattern of practice and pattern of billing, as follows: [1]Excessive utilization of diagnostic tests and procedures, particularly echocardiograms. [2]Billing for continuous personal attendance upon patients in his office for extended periods of time when he proceeded to concurrently attend to and bill for other patients. [3]Excessive frequency of patient review and consequent billing of 9D's and 5D's. By letter dated March 15, 1992, Huerto was advised that the Committee had received his pattern of billing at its meeting and enclosed the complete data package of his billings for the period March 28, 1989, to September 24, 1990, that it had reviewed. This letter constitutes the written notice of intention to investigate required by ss. 49.2(3) of the Act. The Committee described its mandate as follows: The Committee is charged with the responsibility of considering the billing patterns of physicians, where those patterns appear to be aberrant in comparison to the patterns of billing of their peers. The Committee must determine whether such aberrations are consistent with patterns of practice which are reasonable, under the conditions prevalent in the individual practice and in comparison to the peer group. Following its review of his pattern of billing, the Committee remained concerned about certain aspects of Huerto's billing, such as the [1]high rate of contacts per patient; [2]high cost per patient; [3]high rate of partial assessments; [4]high rate of consultations compared to the group mean for specialists in internal medicine. The Committee asked for Huerto's comments and he replied on April 24, 1991. Huerto explained that his cardiology practice was unique in nature because he did not have hospital privileges. This coupled with his philosophy of treatment (i.e. he attempts to have his patients modify their lifestyle) requires that he administer many more tests to monitor his treatment program and he also has more frequent contact with his patients. This in his view accounted for the high rate of contacts and consultations with his patients relative to his peers. The Committee responded by advising that hearing was scheduled for September, 1991, and further stated that Dr. R.C. Orchard was appointed temporary member of the committee. Counsel for Huerto protested the appointment of Dr. Orchard on the basis of reasonable apprehension of bias for the following reasons: [1]Dr. Orchard testified against Huerto in disciplinary proceedings before the College of Physicians and Surgeons; [2]Dr. Orchard rendered opinions to St. Paul's Hospital which were critical of the care and management given to patient by Huerto and impacted on Huerto's application for permanent privileges at St. Paul's Hospital; [3]Dr. Orchard had rendered opinions to the College of Physicians and Surgeons wherein he was critical of Huerto's care and management of patients; [4]Dr. Orchard was cardiologist in private practice in Saskatoon and was in competition with Huerto. The Committee reaffirmed Dr. Orchard's appointment as temporary member. On April 10, 1992, the hearing proceeded before the Committee and was some seven hours in length. The hearing format consisted of the Committee questioning Huerto and the focus of the questions related to the frequency with which Huerto saw his patients and performed tests compared to the rate at which other cardiologists or internists carried out such procedures. On May 11, 1992, the Committee provided report of the meeting and draft of proposed order and requested Huerto to comment, following which it would finalize its decision. This report contained summary of the methods practised by Huerto and the explanation for the billing category for the services rendered by Huerto. The Committee noted the following with respect to Huerto's practice and made the following recommendations: [1]The rate of electrocardiogram services is nine times the next highest provider. Even allowing that other doctors use hospital services and the cost is absorbed by the hospital, it does not find justification for the discrepancy in the rate of payment. Accordingly reduction of 25 percent for the period March 28, 1989, and September 24, 1990, is proposed. [2]The rate of consultation services is more than three times the next highest provider. Since there was no justifiable reason for this difference from the group of cardiologists, reduction of 50 percent in the rate of payment for the same time period is proposed. [3]The rate of subsequent visit services is seven times the next highest provider. The Committee recognized some cost benefit in the out-patient rather than the in-patient style of practice. Accordingly, even though there is large discrepancy, reduction to 85 percent of the payment schedule is proposed. [4]The rate of electrocardiogram monitoring, technical and scanning services is five times the next highest provider. The Committee recognized that the out-patient style of practice would account for reasonable increase and accept rate of two and one-half times the average. Therefore, reduction of 50 percent in the rate of payment for the same time period is proposed. [5]The rate of Doppler services is three times the next highest provider. The Committee did not accept Huerto's practice for use of this procedure as being different from that recommended in the literature. Because of the nature of the out-patient practice, the Committee accepts an increased rate of two times the average. Accordingly, reduction of 50 percent in the rate of payment for the same time period is proposed. [6]The rate of exercise tolerance testing services is three times the next highest provider. Because of the out-patient style of practice, the Committee accepts rate of two times the average. Therefore, reduction to 50 percent in the rate of payment is proposed. The Committee recommended that no action be taken with respect to the continuous personal attendance billings or complete assessment billings. The Committee acknowledged there are some benefits to preventive medicine and to out- patient care but concluded that Huerto was not providing preventive or outpatient care as practised by primary care physicians. Accordingly, Huerto's "care is expensive without proven cost-effectiveness". The calculation of the proposed reassessment totals $384,635.44. Huerto responded to the Committee proposal by letter dated June 1, 1992. Huerto did not accept that he should be compared to cardiologists who have hospital privileges but rather submitted that he should be compared to other cardiologists who have an out-patient practice only such as he did. There is little doubt that Huerto believes in management of cardiovascular patients outside the hospital environment and believes that such patient management should be done by specialists and not family physicians. In addition, Huerto provided the Committee with an economic analysis done at his request by an accounting firm comparing Huerto's billings to those of ten other cardiologists in the province. In this report, there is an attempt to adjust the costs for before and after hospital days and the report concludes as follows: Based upon the information provided to us, the representations made by yourself and the assumptions noted herein It would appear that the services selected by the Committee for review do exceed the average per cardiologist in Saskatoon. However, comparison of each cardiologist's total costs per 100 patients before and after hospital days reveals that services provided by yourself are significantly lower than the average provided by cardiologists in Saskatchewan. The costs of services provided before taking into consideration the cost of hospital days does exceed the norm but this could be explained by the fact that your hospital days are significantly lower than the average for all cardiologists and you have made significant investment in medical equipment ($453,345) to provide additional services to your patients. The Committee responded to these further submissions by Huerto, including the economic analysis presented by the accounting firm. In particular, it was noted that Huerto's per patient cost was in excess of $1,000.00 while the average per patient cost of the other cardiologists used for comparison was $203.00. Following detailed review of Huerto's further submissions, the Committee did not vary its proposed orders. As noted above, the question is whether the Committeeexceeded or failed to exercise its jurisdiction, failed toobserve the rules of natural justice, made an error of law orwhether its findings were not reasonably supported by theevidence and the material which it was entitled in law toconsider. Counsel for Huerto requests that deal first with the decision on the merits as to whether the decision is reasonably justifiable on the evidence before the Committee. If am persuaded that there was insufficient evidence to support the conclusion of the Committee it would necessitate rehearing. The issue of whether the evidence taken as whole reasonably supports the findings of fact of the Committee is inextricably bound with the issue of whether the Committee committed an error of law in interpreting the Act and therefore, will deal with the two issues together. Huerto says the decision of the Committee should be set aside on the merits. In other words, there was insufficient evidence before the Committee to constitute proof that Huerto's delivery of medical services was unacceptable from medical perspective. He submits that since the Committee and Director led no evidence of "acceptable medical practice" then the Committee only had before it the evidence of Huerto that his approach was medically acceptable. Huerto contends that while statistical comparisons are provided for in the legislation, the Committee does not have an unfettered discretion with respect to the matters it considers to be relevant to the issue of what is an acceptable medical practice. He argues that what is acceptable must be defined in the context of what is acceptable within the context of medical knowledge and thought and not by reference to irrelevant considerations. He suggests such irrelevant considerations are economics, ease of administration, politics or other such criteria. Huerto contends the Committee erred in law and on the evidence when it placed significant emphasis on statistical comparisons when he says that such statistical comparisons are of little value when his approach to practice involves more extensive patient visits and testing procedures and no hospital care. Huerto says that the Committee must investigate his approach to practice to determine if it is within the range of legitimate schools of medical thought and his approach is an acceptable one. In other words, Huerto believes that the issue of competency and professional judgment are matters on which the Committee must adjudicate in order to determine what is an "acceptable medical practice". Huerto says this leads to the conclusion in this case that the committee misinterpreted the Act. The evidence, all of which was provided by Huerto, should lead the Committee to the inevitable conclusion that he is competent cardiologist and that his practice follows more closely that of American cardiologists rather than that of other Saskatchewan cardiologists. He followed the guidelines of The American College of Cardiology/American Heart Association and since there was no conflicting evidence advanced before the Committee, the Committee must conclude that his pattern of practice was acceptable. The Committee stated that competency was not in issue. Therefore, for the Committee to find that Huerto's practice was not acceptable means the Committee's sole criteria was statistical comparison. The question is whether the evidence before the Committee reasonably supports the Committee's findings. Huerto argues that the standard of review is not the judicial review standard, i.e. was the decision patently unreasonable, but that the standard is equated to the appellate review standard i.e. whether the Committee committed palpable or over-riding error that affects the validity of its decision. The Committee did consider the statistical variation shown in Huerto's practice as compared to the group of cardiologists. For example, that comparison showed that in his practice he conducted tests far more frequently than did like physicians, ranging from three times more often to nine times more often. Huerto's patient load was lighter in the number of different patients seen by other cardiologists and his patient load varied 37% of the mean for the group. As well, the number of contacts per patient was 425% higher that the group mean and the cost per patient was 556% higher than the group mean. These are extreme departures from the group mean. Huerto explained that these differences related to the fact that he had no hospital privileges and consequently he served his patients on an out-patient clinic basis and his purpose was to cause patients to change their lifestyle so as to prevent cardiology related problems. Huerto attempted to show that his overall cost was cheaper to the government when one considers the cost of hospital care and facilities as compared to an out-patient facility. He provided much of the testing equipment himself and the government was charged for his services to patients only and did not incur any cost to supply this testing equipment to him. Carried to its logical conclusion, this argument would result in physicians equipping their clinics like private hospital and in effect charging for the use of this equipment based on insured services under the Act for which physician may claim payment. Surely, the legislature did not intend this. The Committee pointed out the significant difference in cost per patients experience by Huerto as compared to other physicians in the group and did account for some of the difference with respect to the hospital care issue. As well, the Committee did take into account the fact that Huerto ran an out-patient facility and his style of practice and did not require that he be paid at the group mean. The Committee was selective with respect to each category of charges submitted by Huerto and gave reasons for its determination with respect to each category and the rational for its reassessment. There was evidence based on the comparison to the group from which the Committee could conclude that Huerto over-serviced his patients both with respect to frequency of contact and frequency of testing and it was open to the Committee to find that the extent of the deviations from the statistical data of the comparable group of physicians was not justified by Huerto. Huerto's deviations from the mean and the average and the top and low end of comparable providers of insured services were in some instances extreme deviations. Accordingly, there was evidence on which the Committee could fairly conclude that Huerto was paid by the Minister by reason of departure from pattern of medical practice acceptable to the Committee. The next basis for setting aside the Committee's decision is that Huerto contends the Committee committed jurisdictional error by undertaking the review at the request of the College of Physicians and Surgeons and not the Director, as required by s. 49.2 of the Act. This allegation overlooks the fact that while the letter from the College of Physicians and Surgeons may have alerted the Director to inquire into the pattern of billing of Huerto, the Director under his authority compiled statistical information (as shown in Exhibit "B" to the affidavit of the Director). This statistical data was then referred to the Committee, who considered the same at its March, 1991, meeting. Huerto was then advised by the Committee that it was reviewing his pattern of billing (see the letter of March 15, 1991). Huerto was provided with the complete data package which was presented to the Committee at its meeting in March, 1991. Therefore the letter from the College of Physician and Surgeons was in the nature of "complaint". This "complaint" was investigated by the Director who within his authority compiled the statistical information which was then reviewed by the Committee at its meeting in March, 1991. Accordingly, there is no factual foundation to support this allegation and the Committee did not exceed its jurisdiction in undertaking the review of Huerto's billing pattern. Huerto next contends that the presence of Dr. Orchard on the Committee gave rise to reasonable apprehension of bias. As such the decision of the Committee should be quashed for breach of the rules of natural justice. The applicable law in respect of bias in the context of this Act is stated in Milne v. Joint Chiropractic Professional Review Committee, 1992 CanLII 8304 (SK CA), [1992] W.W.R. 354 (Sask. C.A.) at p. 360 as follows: An administrative tribunal such as the committee is subject to the rules of natural justice and the rule against bias is one of the most fundamental elements of natural justice. person is entitled to have his cause determined by an impartial tribunal untainted by the knowledge of facts or by predetermined position to particular point of view which might affect the result. The underlying policy for such principle is that justice must not only be done but must manifestly and undoubtedly be seen to be done. and at p. 361: The test is whether reasonable person would believe that there is reasonable danger of bias or whether there would be reasonable suspicion of bias. Huerto acknowledges that there is logic in appointing an internist or cardiologist to committee investigating the pattern of billing of the medical practice of cardiologist. However, he says it should not have been Dr. Orchard because Dr. Orchard had on previous occasion testified as witness at disciplinary hearing conducted by the College of Physician and Surgeons involving Huerto. As well, Dr. Orchard gave evidence at hearing before the hospital board when Huerto's application for privileges at St. Paul's Hospital was being considered. Therefore, in two instances, Dr. Orchard testified as witness in two different proceedings involving Huerto. As well, Huerto objected to Dr. Orchard because he is in private practice in Saskatoon and Huerto considered him to be in competition with him. In the other proceedings, Dr. Orchard was witness and there is no evidence he participated in the decision making process. Therefore, Dr. Orchard had knowledge that two proceedings had been held but there is no evidence before me that he functioned in an adversarial or adjudicative function. The fact that in one instance he was critical of Huerto's care of one patient does not mean that he is biased against Huerto. It would appear that only ten cardiologists exist in Saskatchewan and with such small group it is probable that they have some information about each other and may be required to testify as witnesses in any other proceedings involving cardiologists. There is no indication that Dr. Orchard had access to confidential information concerning Huerto. It is clear from the correspondence from Huerto to the Committee that he had been subject to discipline proceedings before the College of Physicians and Surgeons and this would have been known to all Committee members. Huerto made it known that he did not have hospital privileges and again this would have been known by all Committee members. This does not mean that in the review of billing pattern that there is an apprehension of bias. There is nothing to suggest that Dr. Orchard had knowledge of facts that the other members of the Committee did not have or that he had predetermined position to particular point of view that would affect the outcome on review of Huerto's billing pattern under the Act. Huerto, in his argument before the Court, suggested that he is suspicious that Dr. Orchard is behind the complaints to the College of Physicians and Surgeons about him. This is speculation and is not based on any facts put before this Court. Accordingly, do not accept that there was reasonable apprehension of bias with respect to Dr. Orchard. There was not breach of natural justice and Huerto is not entitled to have the decision set aside on this basis. Further, Huerto contends the Committee violated the "presumption against retroactivity". Huerto says that under the Act, he is entitled to bill for and be paid for insured services he carried out. Only after payment has Huerto been informed the Committee views the frequency of his patient contact and testing as an unacceptable medical practice. Huerto argues that if the Commission establishes criteria that only specified number of procedures on patient within given time period will be paid for, it is entitled to do so, but not subsequent to the rendering of services by doctor. He argues that after the fact his medical practice is being questioned. Huerto says that he was only exercising his best professional judgment, which the legislation specifically states he is entitled to do. It is true that the purpose of the Act is not to diminish the exercise of professional judgment by physician. But the Act specifically provides that regulations may be made prescribing the rates of payments to be made to physicians and methods of assessing accounts submitted by physicians. As well, the Act clearly provides that the Director may refer to the Committee any matter where he believes that physician has been paid money by reason of any departure from pattern of medical practice acceptable to the Committee. The Committee is given the power to order any part of the amount so paid by the Minister to be recovered from the physician. Therefore, the Committee is given the power to examine, in specific instance, the pattern of billing and the medical practice of physician who has received payment for insured services under the Act and to determine whether it is acceptable to the Committee. The legislation has given this power to the Committee and accordingly, there is no basis for setting aside the decision on this basis. Next, Huerto contends, the Committee exceeded its jurisdiction by abusing its discretion. In particular, Huerto claims the Committee interpreted the legislation such that economic considerations prevailed over the professional judgment of the physician and it was the economic considerations that dictated what was the "acceptable medical practice". In this respect, Huerto says the Committee emphasized the statistical variation with other cardiologists. Further, it gave undue consideration to the economic criteria, which is not directly related to the issue of medical care, and concluded that Huerto's pattern of medical practice was not acceptable to the Committee. The Act provides that the Committee may take into account statistical or other comparisons between the services of the physician with respect to whom they are conducting review and the services of other physicians or groups of physicians. As well, the Director refers matters to the Committee on the basis of money paid or about to be paid to physician for insured services which he believes may represent departure from pattern of medical practice which is acceptable. In other words, the tenor of those sections of the Act is to govern the payment to physicians for insured services. This necessarily emphasizes the economic considerations. Furthermore, Huerto provided the Committee with lengthy and detailed economic analysis in an attempt to show the Committee that his method of frequency of patient contacts and testing was more economical than cardiologists who had hospital privileges. There is no question but that it is acceptable for the Committee to examine billing patterns and to review how the pattern of one physician differs from another physician or group of physicians. The Committee had hearing to give Huerto the opportunity to explain the deviations it observed in his billing pattern as compared to group of physicians. Again, the legislation puts the emphasis on the payment for insured services and the Committee did not abuse the discretion vested in it by the legislation in conducting the review and hearing with respect to this matter and did not exceed its jurisdiction. The Committee did not commit any palpable and over-riding error and there was evidence to support its conclusionon the merits. The Committee did not decline or exceed itsjurisdiction and did not commit an error of law. Accordingly,there is no basis for interfering with the decision of theCommittee and the appeal is dismissed.

Dr. Huerto appealed a decision of a Joint Medical Professional Review Committee, pursuant to which he was ordered to repay approximately $384,000.00 to Saskatchewan Health. HELD: Appeal dismissed. 1)The legislation provides for an appeal to the Court of Queen's Bench and for no further appeal. Such an appeal can be taken on the following grounds: (a)the committee exceeded its jurisdiction; (b)it failed to observe the rules of natural justice; (c)it made an error of law; (d)its findings can not be reasonably supported by the evidence which it was entitled to consider. 2) The Court found no error of jurisdiction or failure to observe the rules of natural justice. 3)The Court found no palpable or overriding error in the facts as determined by the Committee based on the evidence.

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