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J. 1995 S.H. 114546 114547 114548 IN THE SUPREME COURT OF NOVA SCOTIA BETWEEN: HER MAJESTY THE QUEEN, on the information of Don Williams (represented by the City of Halifax) -and- A. N. KOSKOLOS REALTY LIMITED DECISION Heard: At Halifax, Nova Scotia, before Justice J. Michael MacDonald on October 10, 1995 Oral Decision: November 1, 1995 Written Release of Decision: November 14, 1995 Counsel: Barry Mien for the Appellant Wayne Harvey for Respondent The respondent owns several buildings on Robie Street in the City of Halifax. These one time family homes have been converted into apartment units. In the spring of 1994 the respondent's proposal to replace these buildings with high density apartment complex was rejected by Halifax City Council. In response the respondent repainted the buildings in haphazard and multi‑coloured fashion. They are an eye‑sore. Following complaints from nearby property owners, the respondent was charged with "owning unsightly properties" contrary to the provisions of the Halifax City Charter. On the 2nd of February, 1995, Judge Sandra Oxner, following trial of the matter, acquitted the respondent of all charges. The Crown now appeals to this Court. The Crown raises two grounds on appeal. 1. That the Learned Trial Judge erred in law in her interpretation of Section 363 of the Halifax City Charter, S.N.S. 1963, c.52. (as amended). 2. That the Learned Trial Judge erred in law in her application of Section 2(b) of the Canadian Charter of Rights and Freedoms. Did the Learned Trial Judge err in law in her interpretation of Section 363 of the Halifax City Charter? The appellant sought conviction under Subsection 363(3) which provides: 363 (3) No person shall permit property owned or occupied by that person to be unsightly or in state of disrepair, or shall permit to remain on any part of the property ashes, junk, rubbish, refuse, derelict vehicle, or bodies or parts of, vehicle, machine or equipment or dilapidated boat, or any thing of any nature whatsoever that by reason of being on the property causes the property to be unsightly or offensive. 1993, c.53, s.9. In considering this subsection, the Learned Trial Judge made the following findings at page of her decision: The facts of the colouration and uneven application of the paint are not in dispute. accept the evidence of the Crown witnesses that they found the buildings, as repainted by the Defendant, to be in their opinion "unsightly". accept they were of the honest opinion that the attention getting style of painting of the Koskolos Realty Limited properties detracted from their pride in their neighbourhood and their enjoyment of the view of their neighbourhood from their homes. The Learned Trial Judge then considered the more difficult question of whether or not Subsection 263(3) applied to the circumstances of the case at bar. After reviewing the relevant authorities at page of her decision the learned trial judge concluded: In my view, the use of the value judgement word "unsightly" in the context of Subsection where it is found without any expressed standards to define or limit it causes an ambiguity in the meaning of the word that calls for the statutory interpretation aids referred to above. agree with the Defence submission that the meaning of "unsightly" in Subsection must be ascertained by reference to the words associated with it, "a state of disrepair or the accumulation of physical debris". In my opinion, this would exclude the manner in which the properties are painted from the operation of the Statute. would, therefore, enter an acquittal." Section 363 must be interpreted in manner prescribed by section 9(5) of the Interpretation Act, R.S.N.S.1989, as amended: "9 (5) Every enactment shall be deemed remedial and interpreted to insure the attainment of its objects by considering among other matters (a) the occasion and necessity for the enactment; (b) the circumstances existing at the time it was passed; (c) the mischief to be remedied; (d) the object to be attained; (e) the former law, including other enactments upon the same or similar subjects;" Driedger on the Construction of Statutes (3rd edition) at page 131 discusses "The modern rule" of interpretation: "There is only one rule in modern interpretation, namely, courts are obliged to determine the meaning of legislation in its total context, having regard to the purpose of the legislation, the consequences of proposed interpretations, the presumptions and special rules of interpretation, as well as admissible external aids. In other words, the courts must consider and take into account all relevant and admissible indicators of legislative 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 the legislative purpose; and (c) its acceptability, that is, the outcome is reasonable and just." Furthermore, certain portions of subsection 363(3) should not be considered in isolation. In fact, the entire section should be considered as whole. Driedger at page 245 explains: "In A.G. v. Prince Ernest Augustus of Hanover, Viscount Simonds wrote: ...the elementary rule must be observed that no one should profess to understand any part of statute or of any other document before he has read the whole of it. Until he has done so he is not entitled to say that it or any part of it is clear and unambiguous. The importance of looking to the Act as whole was also emphasized by Lord Herschell in Colquhoun v. Brooks: It is beyond dispute...that we are entitled and indeed bound when constructing the terms of any provision found in statute to consider any other parts of the Act which throw light upon the intention of the legislature and which may serve to shew that the particular provision ought not to be construed as it would be if considered alone and apart from the rest of the Act. In Greenshields v. The Queen Locke J. wrote: The broad general rule for the construction of statutes is that section or enactment must be construed as whole each portion throwing light, if need be, on the rest. Each provision or part of provision must be read both in its immediate context and in the context of the Act as whole. When words are read in their immediate context, the reader forms an impression of their meaning. This meaning may be vague or precise, clear or ambiguous. Any impressions based on immediate context must be supplemented by considering the rest of the Act, including both other provisions of the Act and its various structural components." Section 363 in its entirety provides: "363 (1) The owner or occupier of property shall keep the property free from any accumulation of wood shavings, paper, sawdust, dry and inflammable grass or weeds or other combustible material. (2) No person shall permit any grass, bush or hedge located on property owned by that person to become unsightly in relation to neighbouring properties. (3) No person shall permit property owned or occupied by that person to be unsightly or in state of disrepair, or shall permit to remain on any part of the property ashes, junk, rubbish, refuse, derelict vehicle, or bodies or parts of, vehicle, machine or equipment or dilapidated boat, or any thing of any nature whatsoever that by reason of being on the property causes the property to be unsightly or offense. 1993, c.53, s.9. (4) No person shall permit property owned by that person to be unsightly in relation to neighbouring properties by reason of the failure to maintain walkway, driveway or parking area to the standard common to the neighbourhood. (5) No person shall permit property owned by that person to be unsightly in relation to the neighbouring properties by reason of lack of ground covering or other surfacing. (6) No person shall permit building owned by that person to become unsightly in relation to neighbouring properties by reason of the failure to maintain the exterior finish of the building. (7) Every person who fails to remove from property owned or occupied by that person combustible material or to correct any unsightly condition within forty‑eight hours after receipt of request to do so from the City is guilty of an offence and liable, on summary conviction, to penalty not exceeding two thousand dollars and in default of payment to imprisonment for period not exceeding thirty days." Section 363 when read as whole appears to be dealing with unsightliness in the context of dilapidation. Furthermore this section appears to make distinction between property that is unsightly (subsections to 5) and buildings that are unsightly (subsection 6). When considered in isolation "property" would normally include "buildings". Yet, in the context of section 363, property is described in context that is exclusive of buildings. For example: Subsection deals with the accumulation of wood shavings, paper, sawdust, and grass or weeds. This reference to property obviously applies to the land as opposed to buildings. Subsection deals with grass, bushes and hedges, which applies to land as opposed to buildings. Subsection 3 applies to the accumulation of ashes, junk, rubbish, refuse, derelict vehicles et cetera. This is a reference to land as opposed to buildings. Subsection deals with driveways and parking areas. Again this deals with land as opposed to buildings. Subsection refers "ground covering or other surfaces" and again this deals with land. It is only subsection 6 that refers exclusively to the unsightliness of buildings. The appellant quite properly concedes that subsection has no application to the case at bar. Although dealing with the exterior finishes of buildings, it is confined to unsightliness caused by failure to maintain. It requires an element of dilapidation or neglect. In the case at bar the appellant alleges that the unsightliness was caused by the owner\'s overt actions. I conclude that when the legislators turned their minds to the unsightliness of buildings, they drafted subsection 6. They restricted this offence to unsightliness caused only by neglect. It is interesting to note that subsection 363(3) is recent amendment to the Halifax City Charter. The references to unsightly in that subsection cannot be considered in isolation. When one considers the references to unsightly in the context of the entire section one must conclude that unsightly refers to the types of things mentioned in subsection including the accumulation of ashes, junk, rubbish et cetera. Unsightly in that subsection cannot be interpreted to include the exterior finishes of buildings because this category is already dealt with in subsection 6. If the legislators wish to have the actions of the respondent considered an offence an appropriate amendment to subsection would be necessary. I therefore find that the learned trial judge, when interpreting s. 363(3) made no error in law. In light of my finding on this first issue it is unnecessary for me to consider the constitutional issue raised by the respondent. It is suffice to say that any proposed amendment must be drafted in way that does not invoke Section 24 of the Charter of Rights and Freedoms. The Crown\'s appeal is dismissed. invite, within two weeks, written submissions on costs.

The respondent landowner haphazardly painted his buildings in order to protest a decision of Halifax city council. The city charged the respondent under the unsightly premises provisions of the Halifax City Charter. At trial, the court held the wording of the City Charter could not support the charge, and that a conviction would violate the respondent's s.2(b) Charter rights to freedom of expression. The city appealed. Dismissing the appeal, that the trial judge did not commit an error in law. S.363(3) of the Halifax City Charter, under which the respondent was charged, refers to land as opposed to buildings, and cannot be interpreted to include the exterior finishes of buildings, a category already dealt with in s.363(6), which covers the unsightliness of buildings caused by neglect, not overt actions.

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nan 2003 SKQB 69 Q.B.G. A.D. 2003 No. 317 J.C. R. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF REGINA BETWEEN: DELOITTE TOUCHE INC., in its capacity as Receiver Manager and Trustee in the Bankruptcy of 597383 Saskatchewan Ltd. dba Peter’s Sewer Service and 614630 SASKATCHEWAN LTD. and 597383 SASKATCHEWAN LTD. dba PETER’S SEWER SERVICE RESPONDENTS R.M. Van Beselaere for the applicants No one else appearing. FIAT ZARZECZNY J. February 14, 2003 [1] Deloitte & Touche Inc. as Receiver Manager of 597383 Saskatchewan Ltd. (the “Registered Owner”) under the Bankruptcy Act, R.S.C 1985, c. B-3, as am. by the Bankruptcy and Insolvency Act, S.C. 1992, c. 27, s. 2 and instrument appointed receiver of the Registered Owner on behalf of the HSBC Bank, a secured creditor and mortgagee of certain real property of the Registered Owner applies for a vesting order with respect to a sale of the real property. The vesting order applied for would register title in favour of the proposed purchaser of the property obtained as result of year long effort by the applicant trustee to sell it. [2] The material satisfies me that the mortgagee, HSBC Bank’s indebtedness secured by its mortgage far exceeds the purchase price of the property. Notice of this application was served upon counsel for the Registered Owner and no opposition on its part has been taken to this application. Additionally, the materials filed, including the affidavit of the representative of the applicant trustee in bankruptcy, represents and satisfies me that there are no other interests that will be adversely affected if the vesting order applied for is granted. No subsequent encumbrancers, competing creditors nor the Registered Owner’s rights respecting redemption or preservation of equity (there is none) are adversely affected if the order is granted. [3] The court raised with counsel for the applicant the court’s jurisdiction to issue the vesting order applied for in these circumstances. Neither HSBC nor the applicant trustee proceeded with foreclosure proceedings against the property in question. Counsel requested the opportunity to address the concerns raised and to make supplementary submission in support of its application which has now been done. [4] Based upon the submissions now received from counsel, the court is satisfied that the jurisdiction formerly granted to the court by s. 87 of The Land Titles Act, R.S.S. 1978, c. L-5 not brought forward in the new Land Titles Act, 2000, S.S. 2000, c. L-5.1 is nevertheless reintroduced by the Land Titles Conversion Facilitation Regulations, R.R.S., c. L-5.1, Reg. 2, and in particular Regulation 6.5 dealing with vesting orders. It provides as follows: 6.5(1) On application to the court, if the judge hearing the application considers it appropriate to do so, the judge may make an order: (a) directing that title be vested in any person; and (b) either: (i) directing the Registrar to transfer title or to make changes to title; or (ii) authorizing any person to apply to the Registrar to transfer title or to make changes to title. (2) An order may be made pursuant to subsection (1): (a) on any notice that the judge considers appropriate; or (b) without notice if in judge’s opinion the circumstances warrant it. [5] Although the court tentatively concluded that s. 109 of the new Land Titles Act, 2000 combined with ss. 12 and 65 of The Queen’s Bench Act, 1998, S.S. 1998, c. Q-1.01 are not sufficient authority to support the granting of a vesting order in the circumstances before the court, nevertheless the court is now satisfied that Regulation 6.5 of The Land Titles Conversion Facilitation Regulation to the new Land Titles Act, 2000 does so. In substance, the Regulation parallels the nature, extent, purpose and intent served by the vesting order provisions contained in the former s. 87. [6] The only question remaining is whether or not the discretion to grant vesting orders should appropriately be applied in the circumstances of this case. [7] Because of the conclusions that I have reached based upon the materials filed as previously referred to respecting the absence of adverse interests nor any interest in the registered owner or any subsequent encumbrancer or other creditor with respect to the equity of redemption I conclude that this is an appropriate case to grant the relief requested (see Clarkson Co. Ltd. v. Credit Foncier Franco Canadien (1984), 1984 CanLII 2444 (SK QB), 37 Sask. R. 295 (Sask. Q.B.), Clarkson Co. Ltd. v. Credit Foncier Franco Canadien (1985), 1985 CanLII 2651 (SK CA), 44 Sask. R. 151 (Sask. C.A.). [8] have been satisfied by the material presented upon this application that the reservations expressed by Matheson J., endorsed in the Court of Appeal decision reviewing the judgment in the Clarkson case do not exist or apply to the circumstances respecting the application presently before the court. [9] The applicant, and others having similar interests or circumstances in the future, are nevertheless cautioned to consider the direction of the court of appeal given at para. of its judgment concluding, as it did, as follows: [3] During the presentation of the appeal, discussion arose as to the proper procedure to be followed by receiver-manager who has arranged sale of the real property. The court suggested that the first step was to make application to have the sale approved by the court. The notice of application should be served upon the registered owner and all other interested parties. The onus is on the applicant to prove to the court that all such parties have been served. At para. of the judgment the court goes on to observe: [6] If the order for sale is approved, the applicant might then or on later occasion apply for vesting order. However, under no circumstances should vesting order be made unless or until the rights of all interested parties have either been relinquished or have been extinguished by due process. [11] The application for the vesting order applied for is granted. The form of the draft order filed with the applicant solicitor’s subsequent submissions dated February 13, 2003, may issue.

FIAT. The receiver manager of the registered owner (the numbered company) under the Bankruptcy Act and the instrument appointed receiver on behalf of the secured creditor and mortgagee (HSBC Bank) applied for a vesting order. The trustee had tried to sell the real property for year. HELD: The vesting order was granted. 1)Although the Court tentatively concluded that s.109 of the new Land Tittles Act, 2000 combined with Queen's Bench Act ss.12 and 65 are not sufficient authority to support the granting of a vesting order in the circumstances, the Court was now satisfied that Regulation 6.5 of the Land Titles Conversion Facilitation Regulation to the new Act does so. In substance the regulation parallels the nature, extent, purpose and intent served by the vesting order provisions contained in the former s.87. 2)This was an appropriate case to grant a vesting order in the absence of adverse interests or any interest in the registered owner or any subsequent encumbrancer or other creditor. The bank's indebtedness secured by its mortgage far exceeded the purchase price. The registered owner had taken no opposition. No other interests will be adversely affected. 3)The reservations expressed in the Clarkson case did not exist or apply to the circumstances here but others having similar interests in future were cautioned to consider the direction of the Court of Appeal at para of its Clarkson judgment.

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J. 2003 SKQB 46 Q.B.G. A.D. 2000 No. 336 J.C. R. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF REGINA BETWEEN: ALBERT KAISWATUM RESPONDENT (PLAINTIFF) and ATTORNEY GENERAL OF CANADA APPLICANT (DEFENDANT) and LES OBLATS DE MARIE IMMACULEE DU MANITOBA THIRD PARTY E. F. Anthony Merchant, Q.C. for the respondent (plaintiff) Norma J. Gunningham-Kapphahn for the applicant (defendant) JUDGMENT BALL J. January 29, 2003 [1] The plaintiff claims that he was physically assaulted and that he lost his traditional aboriginal language and culture approximately 50 years ago, when he was student at Residential School. [2] The Attorney General of Canada (the “Attorney General”) applies to strike out the plaintiff’s claims on the grounds that they are barred by certain statutes, or alternatively that the Court has no jurisdiction over any cause of action relating to an alleged intentional tort committed by a Crown servant or employee prior to May 14, 1953. [3] The plaintiff claims that he was physically assaulted and that he suffered the loss of his traditional language and culture from 1944 until 1952, when he was attending the Qu’Appelle Residential School near Lebret, Saskatchewan (the “Residential School”). The Attorney General acknowledges that the plaintiff attended the Residential School from February of 1946 until June of 1949. [4] The plaintiff claims that the physical assaults were perpetrated by employees and staff at the Residential School. The alleged assaults included being beaten with leather strap and having his ears pulled “by Sister Elle”. The Attorney General acknowledges that Sister Ann Elle was employed at the Residential School from 1943 to 1946. The parties agree that Sister Ann Elle died on May 4, 1993. [5] Although the statement of claim makes no mention of Sister Greyeyes, the parties agree that she was one of the employees alleged to have abused the plaintiff at the Residential School. The Attorney General acknowledges that Helen Greyeyes was employed at the Residential School from 1927 to 1969. The parties agree that Helen Greyeyes died on May 19, 1988. [6] The plaintiff claims that his damages were caused by the negligence, breach of trust and breach of fiduciary duty of the Attorney General. The relevant paragraph of the statement of claim reads as follows: 19. The physical assaults and resulting injuries and lifestyle changes to the Plaintiff were caused by the negligence, breach of trust, and breach of fiduciary duty to the Defendant, the servants, agents, and employees of the Defendant, the particulars of which include but are not limited to the following: (a) the hiring of unqualified servants, agents, and teachers to administer and operate the Residential School; (b) failure to have policy or guidelines in place with respect to hiring adequate persons to serve as administrators of the Residential School; (c) failure to protect the Plaintiff from physical abuse by the agents, servants, and employees of the Defendant when they should have been alerted by the conduct and foreseeable risks within the Residential School; (d) failure in general to take proper and reasonable steps to prevent injury to the Plaintiff’s physical health and mental well-being and moral safety while the Plaintiff was student at the Residential School; and (e) having occupied position analogous to that of parent, failing to establish and maintain systems to protect the Plaintiff as good parent should. [7] On October 3, 2002, Wimmer J. granted leave to the Attorney General to amend its statement of defence and third party claim, pursuant to which the Attorney General pleads and relies upon the Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50, as am., s. 31(d), (h) and (j) of The Limitation of Actions Act, R.S.S. 1978, c. L-15, as am. (“LAA”), The Public Officers’ Protection Act, R.S.S. 1978, c. P-40, as am. or its predecessor legislation (“POPA”), s. 59 of The Trustee Act, R.S.S. 1978, c. T-23, as am., or its predecessor legislation, s. 10 of The Survival of Actions Act, S.S. 1990-91, c. S-66.1, as am., s. 3(1)(a) of the Crown Liability Act, S.C. 1952-53, c. 30 and s. 19 of the Exchequer Court Act, R.S.C. 1927, c. 34, as am. S.C. 1938, c. 28. [8] The Attorney General served notice of third party claim against Les Oblats de Marie Immaculee du Manitoba (the “Oblats”) alleging that the Oblats controlled and operated the Residential School at all material times. The third party claim is not relevant to this application by the Attorney General to strike out the plaintiff’s statement of claim. [9] The Attorney General seeks an order striking out the plaintiff’s claims on five alternative grounds which will be dealt with in the following sequence: (a) The plaintiff’s claims against the Attorney General [including the claim framed in trespass] are statute-barred pursuant to s. of The Limitation of Actions Act, R.S.S. 1973, c. 76, 1965, c. 84, 1978, c. L-15; (b) All of the plaintiff’s claims against the Attorney General, except the claim framed in trespass, are statute barred because they are not exempted by subsection 3(3.1) of The Limitation of Actions Act; (c) The plaintiff’s claims against the Attorney General are statute-barred pursuant to s, of The Public Officer’s Protection Act, R.S.S. 1953, c. 17, 1965, c. 21, 1978, c. P-40; (d) The plaintiff’s claim against the Attorney General based on vicarious liability for assault must be struck because the Court has no jurisdiction to adjudicate upon any cause of action relating to any alleged intentional tort committed by any Crown servant or employee that is said to have occurred prior to May 14, 1953; (e) All of the plaintiff’s claims against the Attorney General arising from the conduct of two deceased employees of the Residential School, namely, Sister Elle and Sister Greyeyes are barred by The Trustee Act, R.S.S. 1978, c. T-23 and The Survival of Actions Act, S.S. 1990-91, c. S-66.1, as amended. [10] For the reasons which follow, reject the Attorney General’s submissions on grounds (a), (b), (c) and (e) and accept its submission on ground (d). (a) Action Based on Trespass [11] The provisions of the LAA relevant to grounds (a) and (b) above are: 3(1) The following actions shall be commenced within and not after the times respectively hereinafter mentioned: ... (d) actions for: (i) subject to subsection (3.1), trespass to the person, assault, battery, wounding or other injury to the person, whether arising from an unlawful act or from negligence ... within two years after the cause of action arose. ... (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. 3(2) Nothing in this section extends to an action where the time for bringing the action is by statute specially limited. 3(3.1) person is not governed by limitation period and may at any time bring an action for trespass to the person, assault or battery where: (a) the cause of action is based on misconduct of sexual nature; or (b) at the time of the injury: (i) one of the parties who caused the injury was living with the person in an intimate and personal relationship; or (ii) the person was in relationship of financial, emotional, physical or other dependency with one of the parties who caused the injury. (3.2) Subsection (3.1) applies whether or not the person’s right to bring the action was at any time governed by limitation period pursuant to this Act or any other Act. [12] The plaintiff claims that he was physically assaulted while he was in relationship of dependency with the perpetrators of the assaults. That claim is exempted from limitation period by s. 3(3.1)(b)(ii) of the LAA. The Attorney General argues however, that s. 3(3.1)(b)(ii) only exempts claims against person who actually perpetrates an alleged trespass, assault or battery, and that it does not exempt claims against persons who may be vicariously liable for that conduct. In companion judgment to this one rejected the Attorney General’s submission on that point (see [P.G.] v. Attorney General of Canada and William Brittain and Douglas Ross, 2003 SKQB 41 (CanLII) at paras. to 11). Even though the plaintiff’s claim in trespass is based on acts that are alleged to have occurred over 50 years ago, it clearly falls within the class of claims contemplated by s. 3(3.1)(b)(ii) of the LAA. As such it is exempted from any limitation period—not only insofar as the alleged perpetrators are concerned, but also as against others liable for their conduct. (b) Actions Based on Grounds other than Trespass: Statutory Limitation Periods and the Discoverability Principle [13] The Attorney General submits that all of the plaintiff’s claims not exempted from limitation period by s. 3(3.1) of the LAA, including those in negligence, breach of trust and breach of fiduciary duty are barred by ss. 3(1)(d)(i) and 3(1)(h) of the LAA. [14] A claim of negligence is subject to the two year time limitation period in s. 3(1)(d)(i) of the LAA. Even though the claim is based on events said to have occurred over 50 years ago, the two year limitation period must be calculated having regard to the principles of discoverability. It may well be impossible from practical standpoint for the plaintiff to establish, by balance of probabilities, that he did not discover, or should not with reasonable diligence have discovered, the wrongful nature of the Federal Crown’s acts and the nexus between those acts and his injuries. Nevertheless, unless there is agreement on the relevant facts (as required by Rule 188 of The Queen’s Bench Rules) or the plaintiff’s own pleadings can be relied upon to establish that the claim is barred (a proposition that was not advanced by the Attorney General), facts relevant to discoverability are best determined at trial. (See [P.G.] v. Attorney General of Canada et al., supra, at paras. 12 to 31). [15] The plaintiff’s claims of breach of trust or breach of fiduciary duty are equitable claims subject to the six year time limitation period prescribed by s. 3(1)(h) of the LAA. That limitation period explicitly begins to run “... from the discovery of the cause of action”. Again, there is no agreement on the facts and the Attorney General does not argue that the claims should be struck on the basis of the plaintiff’s own pleadings. It should therefore be left to the trial judge to determine whether the plaintiff can satisfy the requirements of discoverability. (See [P.G.] v. Attorney General of Canada et al., supra, at paras. (c) The Public Officers’ Protection Act (“POPA”) [16] The Attorney General submits that even if the LAA does not bar some or all of the plaintiff’s claims, all of them are barred by s. 2(1) of the POPA which provides: 2.—(1) No action, prosecution or other proceedings shall lie or be instituted against any person for an act done in pursuance or execution or intended execution of statute, or of public duty or authority, or in respect of an alleged neglect or default in the execution of statute, public duty or authority, unless it is commenced: (a) within twelve months next after the act, neglect or default complained of or, in case of continuance of injury or damage, within twelve months after it ceases; or (b) within such further time as the court or judge may allow. [17] Counsel for the Attorney General argues that the twelve month limitation period in s. 2(1)(a) of the POPA should be applied in priority to the more general provisions of the LAA. The same argument was rejected in [R.J.G.] v. Attorney General of Canada and Missionary Oblates-Grandin Province, 2002 SKQB 405 (CanLII), [2002] S.J. No. 602 (QL) (Q.B.), leave to appeal granted on December 3, 2002 in 2002 SKCA 132 (CanLII), on the basis that the POPA does not apply to persons carrying out duties and responsibilities on behalf of the Government of Canada. Although the court did not explain why it came to that conclusion in [R.J.G.], supra, it could have done so for two reasons. [18] First, the decision in [R.J.G.] is consistent with various decisions dealing with Ontario legislation very similar to the POPA (namely s. of the Ontario Public Authorities Protection Act, R.S.O. 1990, c. P.38 which contains six month limitation period). In Berardinelli v. Ontario Housing Corp., 1978 CanLII 42 (SCC), [1979] S.C.R. 275, Estey J. stated at para. 21 that the Ontario legislation should be read restrictively, and that it does not apply to activities of an internal or operational nature having predominately private aspect. In Des Champs v. Conseil des Écoles Séparées Catholiques de Langue Française de Prescott-Russell, 1999 CanLII 660 (SCC), [1999] S.C.R. 281 and the companion case of Abouchar v. Ottawa-Carleton French-Language School Board-Public Sector, 1999 CanLII 661 (SCC), [1999] S.C.R. 343, the Supreme Court of Canada confirmed that approach. In Des Champs, the majority of the Supreme Court held that the legislation could not be invoked to protect actions of public authority “of an internal or operational character” or that are “distinct, separate, subordinate and incidental” to the execution of the public mandate (per Binnie J. at paras. 56 and 58). In Abouchar, Binnie J. held at paras. and that the time limitation period did not apply because the plaintiff’s claim related to duties of the respondent school board that were “... incidental or subordinate to the direct performance by the respondent Board of its public mandate and are predominately of private character”. In Jadwani v. Canada (Attorney General) (2000), 2000 CanLII 22333 (ON SC), 47 O.R. (3d) 276 at para. 26 (S.C.J.), Lalonde J. came to the same conclusion. [19] Applying the reasoning in all of the above decisions to the circumstances in both [R.J.G.] and this case, it can appropriately be said that the claims relate to internal management of the Residential Schools and acts that were “distinct and separate” from any public mandate. As such, the 12 month time limitation period under s. of the POPA does not apply. [20] second reason supporting the court’s conclusion in [R.J.G.] is that the limitation period in the POPA is set aside by s. 3(3.2) of the LAA for actions which fall within the scope of s. 3(3.1) of the LAA. This is evident from the clear language of s. 3(3.2) of the LAA. For ease of reference, s. 3(3.2) reads: 3(3.2) Subsection (3.1) applies whether or not the person’s right to bring the action was at any time governed by limitation period pursuant to this Act or any other Act. [Emphasis added] [21] Even if the time limitation period in the POPA applies to claims other than those described in s. 3(3.1) of the LAA (i.e., even if the [R.J.G.] decision was wrong), time begins to run under s. 2(1)(a) of the POPA only when the alleged injury or damage ceases. The plaintiff alleges continuing injury and damage. There is no agreement as to when that alleged injury or damage ceased. That is factual matter to be dealt with at trial. [22] For the above reasons adopt the [R.J.G.] decision and in any event conclude that the POPA does not bar the plaintiff’s claim from proceeding to trial. (d) Intentional Torts Occurring Before May 14, 1953: Proclamation of the Crown Liability Act [23] The Attorney General submits that this Court has no jurisdiction to hear or adjudicate upon any cause of action relating to an alleged intentional tort occurring before the proclamation of the Crown Liability Act on May 14, 1953. The reasoning is straightforward: Before the enactment of the Crown Liability Act on May 14, 1953, no action could be taken against the Crown for the intentional torts of its officers or servants; After May 14, 1953, claims against the Crown based upon the torts of its officers and servants, both negligent and intentional, were permitted by the Crown Liability Act and its successor legislation; The Crown Liability Act did not operate retrospectively to permit claims against the Crown for intentional torts committed prior to May 14, 1953; Section 3(3.1) of the LAA does not create causes of action, but simply removes statutory time limitation periods barring otherwise existing actions; Therefore, the Crown remains immune from claims for trespass, assault and battery committed by its servants and officers before May 14, 1953. That immunity applies to the claim in this case, which is based on alleged assaults at the Residential School between approximately 1944 and 1952. [24] agree with the Crown’s submission as it relates to the intentional torts of trespass, assault and battery. [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 a 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. ). (e) Claims Against Deceased Perpetrators: The Trustee Act and The Survival of Actions Act [35] The Attorney General submits that the plaintiff’s claims against the Federal Crown are barred by virtue of the combined effect of ss. 10 and 24 of the Crown Liability and Proceedings Act and s. 59 of The Trustee Act (as the claims relate to Sister Greyeyes) or s. 10 of The Survival of Actions Act (as the claims relate to Sister Elle). [36] understand the Attorney General’s argument to be that s. 10 of the Crown Liability and Proceedings Act prevents any action from being taken against the Crown in respect of an act or omission of servant of the Crown unless an action could also be brought against that servant or the servant’s personal representative. Next, counsel argues, no action could be brought against Sister Greyeyes or her estate because when she died on May 19, 1988, s. 59 of The Trustee Act was in force and required actions to be commenced within one year of her death. When Sister Elle died on May 4, 1993, s. 59 of The Trustee Act had effectively been replaced by the one year time limitation period now found in s. 10 of The Survival of Actions Act-a limitation which bars any action against Sister Elle or her estate. Finally, the Crown argues, s. 24 of the Crown Liability and Proceedings Act entitles the Federal Crown to take the benefit of any defence that would be available to Sister Greyeyes if the plaintiff’s claim had been made against her. [37] Dealing firstly with the Attorney General’s submission with respect to Sister Greyeyes, s. 10 of the Crown Liability and Proceedings Act and s. 59 of The Trustee Act provide as follows: The Crown Liability and Proceedings Act 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 this Act, have given rise to cause of action for liability against that servant or the servant’s personal representative or succession. The Trustee Act 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. [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. [40] Whether or not the plaintiff’s claims against the Federal Crown based on negligence, breach of trust and/or breach of fiduciary duty are barred by the combination of legislation relied on by the Attorney General turns on whether those claims are based on vicarious liability or direct liability. The difference between the two is neatly summarized in Hogg and Monahan, Liability of the Crown (3d) ed., as follows at c. 6.2(b), p. 115: ... Direct liability involves the breach of duty owed to the injured plaintiff by the master, whereas vicarious liability involves the breach of duty owed to the plaintiff by the servant. In the case of direct liability, it is immaterial whether servant owed duty to the plaintiff, and in the case of vicarious liability it is immaterial whether the master owed duty to the plaintiff. [41] The plaintiff’s claims of negligence, breach of trust and breach of fiduciary duty are claims of direct liability alleging the breach of a 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. [42] Finally, counsel for the Attorney General submits that the plaintiff’s claim against Sister Elle, who died on May 4, 1993, is barred by virtue of s. 10 of The Survival of Actions Act. Section 5 and s. 10(1), (3) and (4) of The Survival of Actions Act, provide: If cause of action for damages suffered by reason of an act or omission would have existed against person had that person not died at or before the time the damage was suffered, the cause of action is deemed to have existed against the person before that person’s death. 10(1) Notwithstanding The Limitation of Actions Act or any other Act limiting the time within which an action may be brought, cause of action that survives pursuant to this Act is not barred until the expiry of the period provided by this section. (3) Proceedings on cause of action that is deemed to continue pursuant to section may be brought: (a) within the time otherwise limited for the bringing of the action, which is to be calculated from the date the damage was suffered; or (b) within one year from the date the damage was suffered; whichever is the longer period. (4) Subject to subsection (5), this Act does not operate to revive any cause of action in or against person that was barred at the date of that person’s death. [43] In my view, the above legislation does not bar the plaintiff’s claims. With respect to the trespass claim within s. 3(3.1) of the LAA, s. 3(3.2) of the LAA abrogates the time limitation period in s. 10(3)(b) of The Survival of Actions Act. The other claims are made directly against the Federal Crown and are not affected by time limitation periods applicable to Sister Elle or her estate. SUMMARY [44] The plaintiff’s claim based on the intentional tort of assault committed by a servant of the Crown before May 14, 1953, is struck. The plaintiff’s claim based on negligence is subject to the two year time limitation period prescribed by s. 3(1)(d) of the LAA and his claims alleging breach of trust and breach of fiduciary duty are subject to the six year time limitation period in s. 3(1)(h) of the LAA. Both time limitation periods are to be calculated having regard to principles of discoverability with relevant factual issues to be dealt with at trial. [45] will receive written submissions from both parties with respect to costs, to be filed within 30 days.

The Attorney General applied to strike out the plaintiff's claims on the grounds they are statute-barred by virtue of the LAA s.3 and that all the claims except for trespass to person are not exempted by s.3(3.1); by POPA s.2; alternatively, the Court has no jurisdiction over any cause of action relating to intentional torts committed by a Crown servant or employee prior to May 14, 1953; all claims arising from the conduct of two deceased Sisters who died in 1988 and 1993 are barred by the TA and SAA. The plaintiff claimed he was physically assaulted by employees and staff and suffered the loss of his traditional language and culture between 1944 and 1952 while attending the Qu'Appelle Residential School. The AG acknowledged the plaintiff attended the school from 1946 until 1949. The AG in a previous application was granted leave to amend its statement of defence and third party claim to plead and rely upon the Crown Liability and Proceedings Act; Limitations of Actions Act ss.31(d),(h) and (j); Public Officers' Protection Act; Trustee Act s.59, or its predecessor legislation Survival of Actions Act s.10; Crown Liability Act s.3(1)(a) and the Exchequer Court Act s.19. A third party claim against the Oblats alleging they controlled and operated the residential school at all material times, was not relevant on this application. HELD: 1)The claim based on physical assault by the Sisters was struck. The Court has no jurisdiction over any cause of action relating to intentional torts committed by a Crown servant or employee prior to May 14, 1953. The Crown remains immune from claims for trespass, assault and battery committed by servants and officers before the enactment of the Crown Liability Act in 1953 (renamed the Crown Liability and Proceedings Act in 1990), which did not operate retroactively. The LAA s.3(3.1) does not create a cause of action but simply removes statutory time limitation periods barring otherwise existing actions. Before May 14, 1953 the Crown was subject to claims for negligence pursuant to the Exchequer Court Act s.19(c). The Dyson procedure is available in Canada in every jurisdiction except New Brunswick and Nova Scotia. 2)The claim based on negligence is subject to the two year time limitation prescribed by LAA s.3(1)(d) which must calculated having regard to the principles of discoverability. 3)The claims of breach of trust and breach of fiduciary duty are equitable claims subject to the six year time limitation in LAA ss.3(1)(h) which explicitly begins to run from the discovery of the cause of action (PG v. AG Canada). Relevant factual issues are to be dealt with at trial. 4)Even though the claim in trespass is based on acts alleged to have occurred over 50 years ago, it clearly falls within the class of actions contemplated by LAA s.3(3.1)(b)(ii). As such it is also exempted from any limitation period against others liable for the conduct. 5)The argument that the 12 month limitation period in POPA s.2(1)(a) should be applied in priority to the more general provisions of the LAAA was rejected in RJG v. AG Canada. 6)Claims based on direct liability of the Crown for negligence, breach of trust and fiduciary duty are not affected by time limitation periods applicable to the deceased Sister Greyeyes and her estate. The time limitation periods are abrogated by LAA s.3(3.2). Since there is no limitation period barring an action against the Sister or her estate, there can be no provincial limitation period available to the Federal Crown under CLPA s.24. 7)The other claims made directly against the Federal Crown are not affected by limitation periods applicable to Sister Elle or her estate. SAA ss.5 and 10(1),(3) and (4) do not bar the claims against her. LAA s.3(3.2) abrogates the time limitation in SAA s.10(3)(b).

c_2003skqb46.txt

nan Date: 20010725 Docket: S.H. 171330 IN THE SUPREME COURT OF NOVA SCOTIA [Cite as Potter v. Halifax Regional School Board, 2001 NSSC 106 Between: Jack Potter, Mark Piper, Chris Lavergne, David Paul, Debbie Jennex, David Michels and Brenda Shaw and Halifax Regional School Board nan HEARD BEFORE: The Honourable Justice John M. Davison PLACE HEARD: Halifax, Nova Scotia DATE HEARD: July 12, 2001 DECISION DATE: July 23, 2001 REASONS RELEASED: July 25, 2001 COUNSEL: Brian Casey and Michael Wood, Q.C. for the Applicant John C. MacPherson, Q.C. for the Respondent DAVISON, J.: [1] At meeting held on April 17, 2001 the Halifax Regional School Board (the Board) voted to close Northbrook Elementary School (Northbrook) and Notting Park Elementary School (Notting Park). [2] This is an application advanced by seven applicants for an order pursuant to Civil Procedure Rule 56 in the nature of certiorari to quash the decision of the Board to close the two schools. All seven applicants are parents of children attending Northbrook, and none of the applicants have children attending Notting Park. [3] The Board is responsible for the education of students within the geographic boundaries of the Halifax Regional Municipality and operates 144 schools from Sheet Harbour in the east to Hubbards in the west and to Middle Musquodoboit in the north. There are 14 elected members of the Board who set the policies of the Board and the Chief Executive Officer is the Superintendent of Schools, Mr. David Reid. The senior staff of the Board comprise the Executive Council, which is the strategic and policy formulation body for the Board. There are procedures whereby members of the Executive Council prepare reports which are vetted by the Executive Council prior to being forwarded, on behalf of the Superintendent, to the elected members of the Board for consideration. [4] The delivery of educational services is done on an “area” basis and there is an Assistant Superintendent responsible for each of three areas in Halifax Regional Municipality. [5] Each area is divided into “families of schools” which are grouped on the basis of the sixteen high schools for which the Board is responsible. Elementary and junior high schools which supply students to particular high school are the “feeder” schools, and they form that high school’s “family”. The family of schools relevant to this application is the Dartmouth High School “family” of schools, which includes Notting Park and Northbrook. [6] The facts of this proceeding were advanced by affidavits and at the beginning of the hearing, there was cross examination by counsel for the respondent with respect to some of these affidavits. [7] The affidavit of David Reid states there has been declining enrollment in schools in the area of the former cities of Halifax and Dartmouth and that the declining use of classroom space is costly with respect to the maintenance expense of schools. For these concerns the Board developed strategy known as “A Strategy for Facilities Renewal” which is set out in report referred to as No. 00–09-272. This report is said to have eleven elements, one of which is entitled “Building Assessment”. The Board received building assessment of the schools in the Dartmouth High School family element which partially reads: 11. Review of Schools for Possible Permanent Closure There is significant amount of space throughout the Board (sic)that is essentially vacant. The cost to maintain this space, estimated to be more than $4 million, is direct charge to the classroom. Because of this cost the Board in September 2000, undertook review of schools for the purpose of possible closure pursuant to s. 89(1) of the Education Act S.N.S. 1995-96 c. (the Act). [8] The affiant Jack Potter is the Chair of the Northbrook Advisory Council which was established pursuant to the terms of s. 20 of the Act and is father of child attending Northbrook. He states the Board, in June 1998, developed “Review of Facilities for Permanent Closure Policy” (Closure Policy) and in July 1998 developed “Review of Facilities for Permanent Closure Procedures (Closure Procedures). It was said these policies and procedures were effected pursuant to Ministerial Education Act and Regulations made under s. 145 of the Education Act. major portion of the application relates to alleged breaches of the terms of these policies and procedures. [9] One of the articles in the Closure Policy provided for review in these terms: 4.0 The School Board may approve review of individual schools or review of schools within designated area. 4.1 An area review will address the accommodation of the student population in neighboring schools within the designated area or the redistribution of the area student population into fewer buildings within the designated area. It was stated by Mr. Reid in his affidavit review of the facilities for possible permanent closure should be undertaken on an “area” or “families of schools” basis and that the Dartmouth High School family should be one of the families under review. The schools in that family had “lower occupancy rate and higher incidence of unutilized classrooms than most other families of schools.” [10] Following the review report was prepared and presented to the Board on September 5, 2000. This could be termed the Superintendent’s School Closure Report and its purpose was said to be “to request approval by the Board of the list of areas of schools for possible permanent closure.” One of the areas included was the Dartmouth High School family of schools. At meeting held on September 26, 2000 the Board approved review during the 2000-2001 school year of families of schools including the Dartmouth High School family. [11] Copies of the Closure Policy and Closure Procedures were forwarded to the Minister of Education on October 13, 2000. [12] At meeting of the Board on November 14, 1999 process to review, develop and implement policy was approved in accordance with the terms outlined in report entitled Board Report 99-11, #129 which was dated November 8, 1999 and which contained number of guiding principles for policy development including: The responsibility of staff, through the Superintendent, is to provide the Board with reasonable advice respecting the establishment of policy. Subsequent to policy decisions of the Board, it is the responsibility of staff, under the direction of the Superintendent, to develop procedures in support of the policy and to implement the Board’s decisions with faithful adherence to both the spirit and letter of the policies as they are approved [13] Staff of the Board prepared Report 00-10-278 which was entitled Reduction Targets for Schools Within Designated Areas Identified for Permanent Closure and the report was dated October 4, 2000. It identified reduction target for the Dartmouth High School and Prince Arthur families of schools of 76 classrooms. The Board approved of this reduction by passing motion to that effect at the meeting of the Board on November 14, 2001. [14] Concerns were expressed at the meeting with respect to the schedule of public meetings, and they were set for January 10, 2001 and January 24, 2001. [15] The Board considered all of the schools in the area were under review to determine if any were subject to closure and steps were taken to create School Review Committees in accordance with the Closure Policies and Closure Procedures. Closure Policy 6.1 reads: 6.1 The Board will consider all information pertaining to the possible permanent closure or consolidation of schools, including the report of the School Review Committee, staff reports, and information received at public meetings in reaching its final decision. [16] Under s. 20 of the Act there is provision for the school boards to establish school advisory council for public schools. Closure Procedure Article 3.4 reads: Where the Board has identified designated area of schools for possible permanent closure, the Superintendent will invite the School Advisory Councils from each of the schools within the designated area to appoint one (1) parent representative to the Committee, who is not an employee of the Board, to act on behalf of the School Advisory Council or will otherwise appoint members to the Committee. [17] Mr. Reid, the superintendent, wrote to the chairperson of each School Advisory Council requesting them to appoint member to the School Review Committee. The first meeting of the School Review Committee was held on October 30, 2000, and Jack Potter, one of the applicants herein, was appointed. At the meeting members of the School Review Committee were provided with an information package which included the Superintendent’s School Closure Report which stated on p. 2: The Review Committee would base their recommendations on review of all schools within the designated area. [18] The School Review Committee for the Dartmouth High School family of schools held eleven meetings when various options were considered to achieve the appropriate classroom reduction target. number of the proposals considered closure of Notting Park and Northbrook. [19] On January 10, 2001 the School Review Committee held public meeting and there were number of recommendations including the closing of Notting Park with its students to be transferred to Harbor View School and to Northbrook. As part of this recommendation, there was the suggestion to transfer students from Northbrook to two other schools. [20] second public meeting was held on January 24, 2001, and at that meeting the same recommendation as that which occurred at the January 10, 2001 meeting was advanced. [21] The recommendation was included in the final report of the School Review Committee to the Board. The report emanated from the final meeting of the School Review Committee on February 5, 2001. The report read in part as follows: Notting Park is surrounded by two elementary schools which are in better structural condition: Specifically Harbour View and Northbrook. Notting Park students are within walking distance of both of these schools. The committee has recommended that approximately 87 students be transferred from Notting Park to Harbour View, 30 students be transferred from Notting Park to Bicentennial, and the remaining 79 students be transferred from Notting Park to Northbrook. In order to create space at Northbrook the boundaries will be changed to move 33 students from Northbrook to Crichton Park. The Committee also recommends that the 32 out-of-boundary students at Northbrook return to their home schools (excluding out-of-boundary students from Notting Park). [22] On February 27, 2001 the Board received report from the staff as well as reports from the School Review Committee. It was determined that there be arranged public meetings at number of schools including Notting Park and Northbrook. [23] Before the meeting on February 27, 2001 all schools within the Dartmouth High family of schools were being considered for possible permanent closure. The Board, at this meeting, provided “short list” of schools more directly affected by the decisions of school closure, and persons associated with these schools were given additional opportunities to provide input to the Board with respect to closure. public meeting was held at Notting Park on March 27, 2001 and at Northbrook on March 29, 2001. [24] The Board held special meeting on April 17, 2001 to consider closure. Monday, April 16, 2001 was Easter Monday. At that meeting the Board voted in to ratio to close Notting Park and in to ratio to close Northbrook. [25] The issues raised by counsel for the parties are: (1) The respondent raises the issue whether the applicants have standing to seek certiorari to quash the decision of the Board to close Notting Park. (2) The applicants raise the issue the duty of fairness has been breached when member of the Board, who failed to attend relevant meetings, voted for closure of the two schools. (3) Did the Board commit breaches of procedure of such nature as to cause their decisions to be invalid? RELEVANT LEGISLATION [26] Sections of the Education Act S.N.S. 1995-96 c. to which counsel referred read as follows: Permanent closure of schools Establishment of councils 20 (1) school board shall establish school advisory council for public school where (a) eight or more parents of students attending the public school; (b) home and school association, parent-teacher association or similar organization for the public school; or (c) the principal of the public school, requests, by petition in writing to the school board, that school advisory council be established for the school. 89 (1) school board may, with the approval of the Minister, make by‑law governing the permanent closure of public school within its jurisdiction. Consistency of by‑law with regulations (2) by‑law made pursuant to subsection (1) shall be consistent with the regulations made by the Minister pursuant to this Act respecting the permanent closure of public schools. Manner of closure (3) Upon identification, in accordance with the regulations made by the Minister, of public school to be considered for permanent closing, the school board may permanently close the school within the school district in accordance with by‑law made pursuant to subsection (1) or, where there is no such by‑law, in accordance with the regulations made by the Minister pursuant to this Act respecting the permanent closure of public schools. 1995‑96, c. 1, s. 89. Certain by‑law making powers 67 With the approval of the Minister, school board may make by‑laws for the conduct and operation of public school and the exercise of the powers of the school board. 1995‑96, c. 1, s. 67. Regulations by Minister 145 (1) The Minister may make regulations nan (m) prescribing the manner in which school board is to identify public schools to be considered for permanent closing; (n) governing the permanent closing of public school by school board where the school board does not have by‑law governing such closing; [27] The relevant regulations made under s. 145 read as follows: 15 (1) Every school board shall prepare and adhere to written statement of the policies and procedures to be used by the school board and its staff in identifying schools that will be considered for permanent closing, and shall file the written statement with the Minister. (2) The procedures established pursuant to subsection (1) shall provide for consideration of (a) enrollment patterns and projections; (b) general population patterns and projections; (c) any information available to the school board regarding future developments in the community that would influence the need to consider the closing of school; and (d) the effects that closing school would have on the educational and social opportunities available to the students in that school and in other schools operated by the school board. 16 (1) With respect to the permanent closing of schools, every school board shall either follow the procedures described in Sections 17 to 23 or prepare and adhere to written statement of policies and procedures that provides for (a) public notification of the board's intention to consider closing school; (b) public participation in the process of reaching decision on permanent closing of school; (c) public access to all information that the school board uses to make its decision on the permanent closing of school and to the report described in clause (f); (d) consideration of all foreseeable educational and financial consequences and the effects on the community of the permanent closing of the school; (e) sufficient time for the actions required under clauses (a) to (d) to be satisfactorily completed; and (f) report that (i) shall be presented to the school board no later than December 31 in the calendar year in which school has been permanently closed, (ii) shall be provided by the principal or principals responsible for the school or schools to which the students from the permanently closed school have been transferred, and (iii) describes the educational and social progress of the transferred students and their adjustment to their new school or schools. (2) Any statement of policies and procedures prepared by school board pursuant to sub section (1) shall be filed with the Minister and shall at least meet the requirements described in Sections 17 to 23 with respect to provision of information to the public, participation by the public in decisions on school closings, the time allowed for public participation and study, and consideration of factors related to the closing of school. 17 (1) When school board determines through the procedures established pursuant to Section 15 that one or more schools should be considered for permanent closing, public notification of its intention to consider closing school shall be published in newspaper having general circulation in the area served by the school no later than October 31 in the year immediately preceding the calendar year in which the school may be closed, and the advertisement conveying the public notice shall also give notice of the time, location, and purpose of public meeting at which representatives of the community served by the school will be elected to the study committee pursuant to subsection (4). (2) school board shall establish study committee to be comprised as outlined in subsection (3) or (4). (3) school board that wishes to establish separate study committee for each school being considered for closing may, if (a) school advisory council has been established for the school being considered for closing; and (b) the school advisory council agrees to be appointed as part of the study committee, establish study committee for such purpose comprised of the following members: (i) the school advisory council; (ii) school board representatives, other than the teachers and support staff of the school proposed to be closed, the total number of members appointed pursuant to this clause to be no greater than the total number of members of the school advisory council; (iii) chair chosen in the manner set out in subsection (7) (4) Where school board wishes to establish separate study committee for each school being considered for closing, but the conditions in clauses (3)(a) or (b) are not met, or the school board wishes to establish study committee with responsibility for the study of two or more school closings, the school board may establish study committee for such purposes with the following members: (a) representatives of the communities served by the schools being considered for closing, elected pursuant to subsection (5), with at least one representative of the area served by each of the schools and total of not fewer than three community representatives, whatever the number of schools being considered; (b) one representative of the students enrolled in each school that is being considered for closing, if the school teaches any or all of grades to 12; (c) persons appointed by the school board, who may be members of the school board or of its professional staff and any other persons the school board wishes to appoint, with the total number of members appointed pursuant to this clause being no greater than the total number of representatives appointed pursuant to clauses (a) and (b); and (d) chair chosen in the manner set out in subsection (7). (5) The community representatives of each school being considered for closing, described in clause (4)(a), shall be elected by residents of the areas served by that school at public meeting announced through the advertisement described in subsection (1) and chaired by the principal of the school or another person, as determined by the school board. 18 (1) study committee shall hold its first meeting no later than November 30 immediately preceding the calendar year in which the proposed school closings would occur. (2) study committee shall examine and report to the school board on all matters the study committee considers relevant to the possible closing of the schools, including (a) the effects the school closings would have on the educational progress of students, school board finances, the transportation, maintenance and facility requirements of the school board, the social development of the students in both the schools which may be closed and the receiving schools, student co‑curricular activities, student government finances, lunchroom facilities, and traffic at the schools to which students may be transferred; and (b) the educational and financial consequences for the school district of keeping the school or schools open. (3) Prior to preparing its report, study committee shall invite the public to submit written comments on the possible closings and shall also conduct at least one public meeting at which comments can be presented orally by any person, pursuant to procedures established by the study committee. (4) Notice of the invitation for comments and the holding of the public meeting pursuant to subsection (3) shall be given through an advertisement which appears in newspaper having general circulation in the areas served by the schools being considered for closing, and shall be published at least three times, with the first notice appearing at least three weeks before the date of the public meeting. (5) study committee shall submit its report and recommendations to the school board no later than February 15 of the calendar year in which the proposed school closings would occur. (6) The source of all statistics or other information in the report of the study committee shall be clearly identified. 19 Upon receipt of the report of study committee, school board shall ensure public access to the report by providing copies for examination at school board offices or other locations convenient for the public and by providing reasonable number of copies that can be obtained by residents of the school district either without charge or at price no greater than the cost of printing the report. 20 (1) Following the public release of study committee report pursuant to Section 19, school board shall invite residents of the school district to submit written comments on the report and shall also conduct public meeting on the report at which comments may be presented orally to the school board by any person, pursuant to procedures established by the school board. (2) Notice of the invitation for comments and the holding of the public meeting pursuant to subsection (1) shall be given through an advertisement which appears in newspaper having general circulation in the areas served by the schools being considered for closing and shall be published at least three times, with the first notice appearing at least three weeks before the date of the public meeting. 21 (1) school board shall make its final decisions regarding any permanent closings of schools no later than April 15 immediately preceding the school year in which the permanent closings will take place. [28] Counsel also referred to and relied upon certain delegated legislation in the form of the policy and the procedure developed by the Board in June 1998 and July 1998. There were amendments to these documents in October 2000. [29] The respondent has raised an issue of standing with respect to the application to quash the decision of the Board to close Notting Park. [30] In Finlay v. Canada (Minister of Finance), 1986 CanLII (SCC), [1986] S.C.R. 607 the Supreme Court, on the facts before it, found the party did not have sufficiently direct personal interest in the issue before the court to bring him within the general requirement for standing to sue on an injunction to challenge the exercise of statutory power. On the evidence before me make the same finding in this case. It might be inferred from the documents the enrollment of students in Northbrook would increase, but there is no evidence of the extent of any adverse effect on the students in view of the existing vacancies at Northbrook. [31] would add that the applicant in the Finlay case obtained standing for different reason the judicial discretion to find he had public interest standing. There is no basis in this proceeding to exercise such discretion. [32] In the Finlay case LeDain J. set out the concerns about expanding the public interest standing of an individual in proceeding. He said at p. 631: ... The traditional judicial concerns about the expansion of public interest standing may be summarized as follows: the concern about the allocation of scarce judicial resources and the need to screen out the mere busybody; the concern that in the determination of issues the courts should have the benefit of the contending points of view of those most directly affected by them; and the concern about the proper role of the courts and their constitutional relationship to the other branches of government. [33] The seven applicants have children at Northbrook and no parent of child attending Notting Park is an applicant to this proceeding. It is the position of the Board that none of the applicants are directly affected by the closure of Notting Park. [34] Mr. Casey for the applicants says that the test for standing is whether person is especially affected by the complaint of closure and is different from member of the general public. [35] Mr. Casey refers to report of the Review Committee which is exhibit two of the affidavit of Jack Potter. The report is dated December 12, 2000 and includes document entitled “Distribution Scenario Examined by the Committee”. This document speaks of closing Notting Park and states in part: Northbrook P-6 actual enrollment 206, enrollment guideline 243 Send 32 out-to-boundary students back to their home schools Transfer 33 students from Northbrook to Crichton Park Transfer in 79 students from Notting Park New total for Northbrook 220 This transfer of students, say the applicants, renders them directly affected by the closure of Notting Park. [36] The issue of standing is dealt with at length in Brown and Evans Judicial Review of Administrative Action in Canada where at pp. 4-16 it is stated: At common law person will have standing to seek remedy in proceedings for judicial review if he or she is an “aggrieved person,” an “affected person,” or someone who is “exceptionally prejudiced” by the impugned administrative action. The requirements of any of these expressions of the common law test are twofold: first, an identification of the interest and, second, an assessment of its remoteness. [37] The authors go on to set out various other requirements for success in an application for standing some of which are, in my view, relevant to the issue before me. [38] There is the requirement of “a serious issue”. At p. 4-43 it is stated: Because of the limits to judicial and other public resources, where private rights are not at stake, courts have required that the issue in dispute not only be justiciable, but also be “serious.” This concept has two aspects to it as well. First, the judicial review proceeding must have some prospect of succeeding on the merits, requirement that is normally readily met, and it must not be premature. Second, the issue must also be “serious” in the sense that it must be of some public importance. There is also the requirement of “no other route” and there appears at p. 4-44: This requirement relates to the unavailability of effective alternative remedies and to lack of other potential applicants who could qualify under the general rule rather than pursuant to the public interest exception. ... The second aspect attempts to contain judicial power to its proper domain, namely the adjudication of the legal rights of disputing parties. Furthermore, since public interest litigants often ask courts to rule on question in the abstract, deferring any adjudication until there is someone who has been adversely affected tends to ensure that the issue is determined in the context of specific facts. Accordingly, public interest standing will not normally be granted if it is realistic to expect that the issue in dispute will be determined in another forum or in different proceeding, at the instance of person who would have standing. where there was no practical possibility that the issue of legality would be raised in other proceedings, public interest standing has been granted. (Emphasis added.) [39] With respect to this requirement, the parents of the children attending Notting Park would be what is described as “better plaintiffs” with reasonable prospect they could emerge. There was no evidence why those persons have not joined in this application. They are certainly directly affected by closure of Notting Park and, in the absence of good reason, do not consider it appropriate to proceed in what is less effective way to bring this issue before the court. [40] In these circumstances I am of the view that there has not been established the applicants have been directly affected by the closure of Notting Park. They say the recommendation from the School Review Committee, that 79 students would be transferred from Notting Park to Northbrook, permits it to be said the applicants are aggrieved persons. It seems to me an assessment that the applicants are “persons aggrieved” is remote when there is nothing before me but the evidence of only recommendation that closure of Notting Park would induce the introduction of more students into school which is in the family of schools which according to the report setting out “A Strategy for Facilities Renewal” have “a significant amount of space ... that is essentially vacant.” It could be inferred Northbrook meets this description when the respondent seeks to close it. [41] agree with Mr. MacPherson’s submission that to grant standing to the applicants in relation to the closure of Notting Park could elicit submissions other schools were effected and elicit possible “chain reaction” with the parents of children in other schools advancing claims they were affected and that they have “special interest” in the closure of Notting Park which would be result adverse to efficient use of judicial resources. [42] For all of these reasons it is my view the applicants should not have standing and an order should issue dismissing the application for an order in the nature of certiorari to quash the decision to close Notting Park. THE ABSENCE OF BOARD MEMBER FROM HEARING [43] Counsel for the applicants advances, as his primary submission, the significance of Board member (I will refer to this person in these reasons as “the Board member”) missing several meetings and then voting on April 17, 2000 in favour of the closure of Northbrook and Notting Park. As stated, the vote for closure of Northbrook was seven for closure and six against closure. The Board member’s vote was telling in that it determined the school was to be closed. [44] It is counsel’s submission that the failure of the Board member to disqualify himself during the vote invalidates the result of the vote. This circumstance by itself, it is argued, is sufficient for an order to be issued quashing the decision of the Board as it relates to both Northbrook and Notting Park. In view of my finding on standing there is no need to deal with the argument with respect to Notting Park. [45] In March 2000 the Board held seven hearings at different schools with respect to closure of schools. These meetings generally lasted two and half to three hours. Parents made submissions orally on the issue and the meetings were tape recorded. The transcript of the hearings contains 691 pages. The Board member did not attend any of these meetings. [46] After the last meeting, which was held at Northbrook, the Board held debate of the Committee of the Whole Board on April 10, 2000. There was no transcript of that debate. One could infer from the close vote at the meeting on April 17, 2001 that this debate would be informative. The Board member did not attend. [47] An affidavit of the Board member was filed, and he was not cross examined with respect to that which was said in the affidavit. [48] The Board member worked with the Engineering and Maintenance Department of the Halifax City School Board for over 24 years. He is long standing member of school boards. He states he attended the meeting of the Board on September 26, 2000 and refers to Report No. 00-09-272 which is entitled Strategy for Facilities Renewal dated April 26, 2000 and Report No. 00-09-266 Report to the Board on Schools for Possible Permanent Closure. He states in his affidavit that “as is my custom, had read and reviewed those reports prior to the Board Meeting of September 26, 2000" and says he was “aware of the activities” of the School Review Committee. He was present at meeting of the Committee of the Whole on February 13, 2001 and mentions reviewing reports and having input from staff. He was present at Board Meeting on February 27, 2001. [49] The Board member was on holidays between March 21, 2001 and April 11, 2001 and missed meetings during this time including the one on March 27, 2001 at Notting Park and on November 29, 2001 at Northbrook. He was given transcripts of the discussions during these meetings which he “reviewed” prior to the April 17, 2001 meeting. He specifically said he “reviewed” these transcripts which would consist of substantial number of pages. He did not say he “read and reviewed” the transcripts which was the term used when he referred in his affidavit to reports prior to the meeting of September 26, 2000 or “review and consider” as he stated he did with report of the School Review Committee in February 2000. [50] am unable to determine what the affiant did when he said he “reviewed” the transcripts of the two meetings in March 2001. He did not say he read them. Counsel for the respondent takes the position there was burden on the applicants to cross examine the Board member on the affidavit if they had concern as to the meaning of the word. With respect, it would seem to me that when there were important meetings missed by the Board member and where oral hearings were considered important by the legislators and the Board, the onus should rest with the respondent to show the Board member had appropriate first hand knowledge of the evidence and submissions of the applicants. This is particularly true when the decision to close Northbrook did not occur until February 27, 2001. [51] In Regina v. Committee on Works of Halifax City Council, Ex Parte Johnston (1962), 1962 CanLII 488 (NS CA), 34 D.L.R. (2d) 45 where the applicant was the owner of real property said to be in state of disrepair to the extent it was not suitable for human habitation, the Commissioner of Works for the City of Halifax reported to the Committee on Works that the dwelling be demolished. The Committee held five succeeding hearings and authorized destruction and the applicant applied for writ of certiorari which was granted. The complaint was that at the final hearing eight councillors voted, but only four of them were present for all of the previous hearings. [52] All five of the judges sitting en banco voted in favour of an order for certiorari. Chief Justice Ilsley stated at p. 47: ... am satisfied that the action of the Committee in considering whether they should make an order for the removal or destruction of the building and in deciding that question was one in which it was the duty of the Committee to act judicially and is reviewable by this court in certiorari proceedings. “The power of obtaining writ of certiorari is not limited to judicial acts or orders in strict sense, that is to say, acts or orders of Court of law sitting in judicial capacity. It extends to the acts and orders of competent authority which has power to impose liability or to give decision which determines the rights or property of the affected parties” ... [53] There was no reference to duty of fairness, recent term which, like the notion of the rule of natural justice, has been enhanced by s. of the Charter of Rights and Freedoms particularly as they relate to fair hearings. Brown and Evans in Judicial Review of Administrative Action in Canada, at p. 7-1 states: Administrative action is subject to judicial review on the ground of procedural impropriety. In particular, many public decision-makers are under legal duty to afford to interested persons fair opportunity to participate in the decision-making process before any action is taken that is detrimental to their interests. These participatory rights may be found under different legal labels. At common law, the notions of “the rules of natural justice” and, more recently, “the duty of fairness,” are frequently used to denote the several rules and principles that provide those participatory rights. As well, of course, statutes may require an opportunity for “hearing” or impose duty to “consult” before particular statutory power is exercised. And at the constitutional level, the principles of fundamental justice referred to in section of the Canadian Charter of Rights and Freedoms include the procedural protection of fair hearing before governmental body exercises power to deprive person of “the right to life, liberty and security of the person.” The right to fair opportunity to participate arises in number of diverse decision-making contexts. For example, the duty of fairness applies to decision-making powers in such different contexts as: school board’s dismissal of person holding public office at the pleasure of the employer; ... (Emphasis added) [54] Justice Bissett, in the Johnston case, said at p. 67: am therefore of the opinion that ground of the applicant's submission is well taken and there was denial of natural justice in that four members of the Committee voted for demolition who had not heard all the material facts and arguments which had been advanced for and against such course and this left the Committee with an equality of votes on each side of qualified members, and the circulation of the minutes did not give those members of the Committee who had been absent from some of the important meetings the necessary first‑hand knowledge of all the evidence and the conduct of the proceedings to allow them to consider and discuss that evidence with the others in the way they should have been able to do. See Verchere, J., in Hughes v. Seafarers' International Union, 1961 CanLII 390 (BC SC), 31 D.L.R. (2d) 441. Justice MacDonald stated at p. 57: In my view there is an alternative ground for holding that the resolution and order herein should be set aside. That ground is that where one or more members of an adjudicatory body (such as City Council) has failed to attend meetings at which important aspects of matter involved in the adjudication have been presented or discussed, he thereupon becomes disqualified from participating in the final deliberations of that body or in the decision of that body upon that matter; and that if he does so participate therein, the decision of that body is vitiated thereby and must be set aside. [55] In Mehr v. Law Society of Upper Canada, 1955 CanLII (SCC), [1955] S.C.R. 344 there was an application for an order to restore the name of solicitor to the roll after he was disbarred. There was reference to the words of Cartwright, J., at pp. 294-295: The other matter to which wish to refer is as follows. At the hearing before the Discipline Committee on Sept. 18, six members were present. At the hearing on Oct. the same six members and two additional members were present. At the hearing on Nov. 19 the eight members who had been present on Oct. were present and one additional member was present. There is nothing to indicate that all nine of these members did not take part in deciding as to the report which the Committee should make to Convocation. While it is not necessary to express any final opinion as to whether such course would render the report invalid am much impressed by the reasoning of Lord Hanworth and Romer J. in Rex v. Huntingdon Confirming Authority [1929] K.B. 698.]. At page 714 Lord Hanworth said:‑‑ One more point must deal with, and that is the question of the justices who had not sat when evidence was taken on April 25, but who appeared at the meeting of May 16. We think that the confirming authority ought to be composed in the same way on both occasions: that new justices who have not heard the evidence given ought not to attend. It is quite possible that all the justices who heard the case and the evidence on April 25 may not be able to attend on any further hearing, but however that may be, those justices who did hear the case must not be joined by other justices who had not heard the case for the purpose of reaching decision, on this question of confirmation. And at page 717 Romer J. who agreed with Lord Hanworth added:‑‑ Further, would merely like to point this out: that at that meeting of May 16 there were present three justices who had never heard the evidence that had been given on oath on April 25. There was division of opinion. The resolution in favour of confirmation was carried by eight to two, and it is at least possible that that majority was induced to vote in the way it did by the eloquence of those members who had not been present on April 25, to whom the facts were entirely unknown. [56] Mr. MacPherson, for the respondent, argues the Board was not an adjudicative body and does not make quasi judicial decisions such as that done in the Johnston case. He submits that cases note that school boards are managers of the education system and involved in policy functions when they make decisions to close schools. [57] Such characterization has become less important especially since Nicholson v. Haldimand-Norfolk (Regional) Police Commissioners, 1978 CanLII 24 (SCC), [1979] S.C.R. 311. [58] In Principles of Administrative Law (Third edition) by Jones deVillars, there is stated at p. 81: ... For long time, the principles of natural justice were thought to be applicable only to the exercise of judicial (or quasi-judicial) power, and not to the enactment of delegated legislation or to the exercise of merely administrative action. Similarly, the availability of prerogative remedies of certiorari and prohibition was long restricted to correct procedural errors involved in the exercise of judicial (or quasi-judicial) powers, but not legislative or merely administrative ones. So the functional characterization of delegated powers has been extremely important in Administrative Law. In recent years, the necessity to characterize the nature of delegated functions has become considerably less important. In particular, the development of the general duty to be fair whether comprised within the principles of natural justice, or in addition to them has removed the distinction between judicial (or quasi-judicial) functions and merely administrative ones for the purpose of applying rules of fair procedure, as well as for determining the availability of certiorari and prohibition. This is welcome advance ... Again at p. 85: The phrase “quasi-judicial” refers to discretionary powers which are essentially judicial in nature, but which are exercised by officials other than judges in their courtrooms. Historically, quasi-judicial powers have been subject to procedures which more or less resemble the formal ones used in litigation. As one moves further away from the judicial paradigm, it becomes difficult to determine when the discretionary power can more properly be described as “merely administrative” or “ministerial”. Nevertheless, the distinction was formerly very important, because the procedural principles of natural justice were thought not to apply to the exercise of “merely administrative” discretionary powers. In recent years, however, the development of the “duty to be fair” when exercising merely administrative powers has largely obliterated the importance of the distinction between them and quasi-judicial powers. (emphasis added) [59] The authors discuss the development of the duty to be fair in administrative matters with references to cases such as McCarthy v. Calgary Roman Catholic Separate School District No. (1979), 1979 ABCA 301 (CanLII), 145 D.L.R. (3d) 765, where the Alberta Court of Appeal referring to the Nicholson case recognized this right of citizen to fairness in administrative procedure and that certiorari could establish that right. Several cases establish the right which was described by Justice LeDain in Cardinal v. Kent Institution, 1985 CanLII 23 (SCC), [1985] S.C.R. 643, as: This court has affirmed that there is, as general common law principle, duty of procedural fairness lying on every public authority making an administrative decision which is not of legislative nature and which affects the rights, privileges or interests of an individual. [60] The authors conclude at p. 215: Instead of characterizing functions as judicial or executive, the courts must now concentrate squarely on the real question which has always been before them: Was the procedure used in this case fair in all the circumstances? The circumstances which determine whether the procedure was fair include: (i) the nature of the decision; (ii) the relationship existing between that body and the individual; (iii) the effect of that decision on the individual’s rights. [61] The Board and the legislature recognized the need and the appropriateness of having input from the public on any decision for closure of schools. Examination of regulations advanced by the Minister and the Closure Policy and Closure Procedures determined by the Board set out detailed requirements to protect the rights of the public to be informed and to be able to discuss and advance submissions on the merits and demerits of closure. [62] Reviewing the regulations set out in these reasons it is noted as follows: (1) Regulation 16(1) requires public notification of board’s intention to close, together with public participation in the process and public access to information. There is requirement that there be timely process involving the public; (2) Regulation 17 (1) requires public notification of the intention to close by advertisement in newspaper; (3) Regulation 18 sets out procedures for the study committee and 18 (3) requires, before report, an invitation to the public to submit written comments and to permit oral presentation at public meeting; (4) Section 19 ensures public access to any report of the subcommittee; (5) Section 20 calls for another public meeting, after report, with the invitation to the public to submit oral presentations. [63] It is clear that great care was effected to involve the public which includes parents in every step of the process. It is also clear the public meetings were considered an important feature, and with matters in this proceeding, there were several meetings where the public had the opportunity to address the issues. [64] By reason of his absence from significant meetings, the Board member did not have the advantage of being exposed to the oral submissions and comments of those assembled at the meetings. It is not known the extent to which he read or studied the transcripts of some of those meetings, but even the written word is no substitute for oral submissions, and this difference is recognized in the terms of Regulation 18 (3) and 20 1). [65] The importance of oral hearings was recognized in some cases by Lord Denning, in Patt v. Greyhound Racing Association Limited, [1969] Q.B. 125, with respect to “matters affecting reputation or livelihood or serious import ... fairness demands an oral hearing.” [66] The question of whether an oral hearing was required under the Canadian Bill of Rights and under the Charter of Rights and Freedoms was examined by the Supreme Court of Canada in Singh v. Canada (Minister of Employment Immigration, 1985 CanLII 65 (SCC), [1985] S.C.R. 177. Justice Beetz quoted Inuit Tapirisat of Canada v. Canada (Attorney General), 1980 CanLII 21 (SCC), [1980] S.C.R. 735 at 747: ... The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject‑matter that is being dealt with, and so forth. Justice Wilson pointed out written submissions will not be satisfactory when there is serious issue of credibility. [67] The circumstances of this case involve legislation emphasizing public access to information and public hearings involving what is stipulated as written submissions and oral presentation. We have issues of credibility. Persons in the position of the applicants may have genuine concerns about the decisions of the Board with respect to their influence on the education of their children and the desire to maintain community standards. On the other hand, persons in the position of the applicants may only be involved in the decisions of the Board because those decisions affect their personal convenience, or their involvement may be based on emotional considerations irrelevant to the problems facing the Board. How does Board member determine these motives short of listening to the public’s representations? [68] Furthermore, in the light of the terms of the regulations, what did the Board member do to adequately inform himself of the concerns of the public? [69] Finally it is important to note the Board member’s vote on April 17, 2001 carried the motion to close Northbrook. He should not have voted. [70] By permitting the Board member to vote, the Board breached its general duty to act fairly. The application to quash the decision to close Northbrook is allowed. BREACH OF REGULATIONS [71] The applicants submit that the Board breached regulations enacted pursuant to the terms of the Act. The respondent takes issue with most of the allegations of breach. It is said the applicants are advancing “technical breaches”. [72] Initially, in his oral submissions, counsel for the applicant states that there not only was breach of the common law duty of fairness, but the court need not concern itself with such breach and the applicants do not have the burden of showing that breach in view of the “serious breaches” of the terms of the regulations, and the court is being asked to “enforce the law of Nova Scotia in the form of regulations”. Counsel for the applicant took the position that the court should invalidate the decision of the Board if it did not comply fully with the regulations. [73] The respondent says the issue is whether the applicants have been treated fairly. If there were breaches of regulations, clearance policy or clearance procedure, there was substantial compliance with the process. It is said there was evidence of ample disclosure of information to the applicants and substantial opportunity for submission by the applicants on the matters in issue. [74] In view of my findings on the issue of standing and the breach of the duty of fairness in the vote of the Board member, there is no need to consider the merits of the submissions on this issue, but to avoid misunderstanding, believe it appropriate to advance some general comments. [75] Reference was made to Blore et al. v. Board of Education of Halifax District (1991), 1991 CanLII 4323 (NS SC), 105 N.S.R. (2d) 414, and refer to the words of Justice Nunn of the Supreme Court of Nova Scotia at p. 419: Counsel for the applicants raised issues of inadequacy of notice and opportunity to be heard, failure to disclose some facts, and the delegation of decision making. In my view, each is without merit. While undoubtedly there are cases which have discussed or decided on issues such as these, one has to consider the whole context of administrative functioning and judicial review. It is not the function or intention of the courts to put administrative functioning into straight jacket. Administrative bodies must be as free to function as they possibly can within, of course, the bounds of statutory provisions applicable to them, and within the bounds of any duty of fairness that might exist. Nunn J. also states: It is not perfect world and perhaps it never will be but administrative boards such as the Board here must be permitted to manage the affairs assigned to them with as little intrusion of the courts as possible and only where necessary to protect or assure other rights which must be considered. agree with these comments. [76] similar approach was expressed by Justice Woolridge in Wall v. Corner Brook/Deer Lake/St. Barbe School District No. 3, [1998] N.J. No. 224 (Nfld. Supreme Court) when he stated at para. 73: The governance of the Education system by the school boards is intended to be unimpeded except where there is requirement for compliance with express requirements of the statute. [77] The Board has duty to act fairly, and that is the issue in this proceeding. The court should not be asked, as the applicants ask, to police the Board to determine if they breached regulation, closure policy or closure procedure. Such breaches would be relevant in this proceeding only if they impaired the duty of the Board to act in fair manner. [78] As have determined, there was breach of the duty of fairness when the Board member voted on April 17, 2001 and as have determined, the applicants are not of good standing on the issue involving the closure of Notting Park. There is no need to decide on the argument there was breach of the duty of fairness because of breaches of the regulations. [79] An order will issue in the nature of certiorari quashing the decision of the Board to close Northbrook. seek written submissions on the question of costs.

The applicants applied for an order in the nature of certiorari to quash the decision of the school board to close two schools. The applicants were parents of children who attended one of the two closed schools., application allowed in part; certiorari granted in respect of the decision to close the school which the applicants' children attended; the applicants had no standing to challenge the closure of the second school as they were not directly affected by its closure. The School Board breached its general duty to act fairly in allowing a Board member to vote when he had not attended the public meetings on the issue. The Board did not meet the onus on it to show that the member had appropriate firsthand knowledge of the evidence and submission of the applicants.

e_2001nssc106.txt

J. 2002 SKQB 378 F.L.D. A.D. 1998 No. 148 J.C.S. IN THE QUEEN’S BENCH (FAMILY LAW DIVISION) JUDICIAL CENTRE OF SASKATOON BETWEEN: [O.E.L.A.B.] and [D.G.B.] CO-PETITIONERS RESPONDENT D. Heffernan for the co-petitioners [J.C.M.] on his own behalf JUDGMENT RYAN-FROSLIE J. September 23, 2002 [1] [N.G.K.B.] was born on January 13, 1998 and is currently four and one-half years of age. Her mother, [O.E.L.A.B.], and her father, [J.C.M.], lived together for period of time separating in April of 1998, shortly after [N.G.K.B.]’s birth. [N.G.K.B.] has resided with her maternal grandmother, [D.G.B.], since January of 1999. [D.G.B.] and [O.E.L.A.B.] are joint petitioners in this court action. On February 4, 2002, all of the parties agreed to judgment granting [D.G.B.] and [O.E.L.A.B.] joint custody of [N.G.K.B.] with reasonable access on reasonable notice to [J.C.M.]. The issue of child support was adjourned sine die with an order that [J.C.M.] provide to the petitioners copies of his tax returns for 1999, 2000 and 2001 and his notices of assessment for 1999 and 2000. That documentation was provided as ordered. The parties have been unable to reach an agreement with respect to child support and accordingly have proceeded to trial. [2] The issues before the Court are:1. Child support including s. 7 expenses.2. Whether the child support order should be made retroactive.3. Costs. [3] [N.G.K.B.] lives alone with her maternal grandmother. Her mother, [O.E.L.A.B.], and her father, [J.C.M.], retain separate residences. [4] [N.G.K.B.] is described by her grandmother as an “exuberant child” who is good with words and likes to play and sing. It is obvious [D.G.B.] loves [N.G.K.B.] great deal and is very proud of her granddaughter. [5] [N.G.K.B.] has large birthmark on her left cheek which is very noticeable. [D.G.B.] has displayed great deal of sensitivity to [N.G.K.B.]’s need to meet and deal with people’s reactions to that mark. [D.G.B.] recognized [N.G.K.B.] needed to become involved at an early age with other children and to deal with the questions that children and adults alike would pose to her about the mark. Beginning in the year 2000 [D.G.B.] enrolled [N.G.K.B.] in, among other things, pre-school, music program through the University of Saskatchewan, gymnastics, and as of the fall, 2002, kindergarten. [D.G.B.] testified that these activities have involved [N.G.K.B.] with other children. They have helped [N.G.K.B.] deal with people’s response to her birthmark, have improved her self-image and have helped her to develop self-confidence. [N.G.K.B.]’s answer to questions about her mark exemplifies the extraordinary job [D.G.B.] has done in this regard “Creator gave me that because am special.” [6] [D.G.B.] takes in boarders to earn an income. In addition she receives Canada Pension, small amount of interest, and some social assistance. Her 2001 tax return shows her gross annual income as $9,517.08. find this to be her income for child support purposes. [7] [O.E.L.A.B.] lives on her own and is currently employed as waitress at Peter D’s restaurant. She has held this employment since January 14, 2002, according to her record of employment filed as Exhibit P-6 in these proceedings. She works an average of 35 hours per week and earns minimum wage plus tips. [O.E.L.A.B.] testified she estimates her current income at $14,970.99 as set out in her financial statement dated September 26, 2001. Her 2001 tax return shows gross income of $10,129.89 but this figure does not include tips. find [O.E.L.A.B.]’s income for child support purposes to be $14,971. [O.E.L.A.B.] has provided financially for [N.G.K.B.], paying to her mother, [D.G.B.], $1,570 in 2001 and $875 so far in 2002. [8] [J.C.M.] works as rigger and is currently employed with Lockwell Servicing Limited. He has worked for number of different companies in 2002 replacing workers who were off work due to illness or other causes. The amount of time he works varies depending on the weather and fluctuations in the industry itself. All parties agreed [J.C.M.]’s income for child support purposes should be based on his 2001 income as reflected on his tax return. That income was $35,269.44. [9] On February 23, 1999, an interim order for child support was granted. [J.C.M.]’s income at that time was found to be $24,000 per annum and he was ordered to pay child support of $202 per month commencing March 1, 1999. [J.C.M.] has paid this support and he voluntarily increased it to $300 per month effective April, 2002. No claim for s. expenses was made in the 1999 interim application. 1. Child support including s. expenses [10] Based on a gross annual income of $35,269.44, [J.C.M.], who resides in Saskatchewan, should pay ongoing support for [N.G.K.B.] of $293 per month. [11] In addition to this monthly payment, an add-on is claimed pursuant to s. of the Federal Child Support Guidelines [Divorce Act Regulations, SOR/97-175] for expenses relating to [N.G.K.B.]’s child care, education and extracurricular activities. [12] Section 7(1) of the Guidelines provides that court may allow an amount to cover all or any portion of certain expenses enumerated in that section. In determining whether to allow such expenses the court must take 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 parties and the child, and to the spending pattern prior to separation. [N.G.K.B.] has no independent needs and as she was only three months of age when [O.E.L.A.B.] and [J.C.M.] separated, there was no prior spending pattern for this Court to consider. Child Care Expenses [13] Section 7(1)(a) of the Guidelines provides that the court may consider child care expenses in support order. Those child care expenses are limited however to those “...incurred as result of the custodial parent’s employment, illness, disability ... education or training for employment.” [14] [D.G.B.] testified she has incurred child care expenses for [N.G.K.B.] only when she or [D.G.B.]’s parents have medical appointment or when [D.G.B.] has had to meet with her lawyer. While illness can qualify as legitimate reason for requiring child care, the illness must relate to the child’s custodian, not to third party. Based on the evidence before me, find that the child care expenses incurred in this case do not meet the requirements set out in s. 7(1)(a) and accordingly are not allowable. [15] Section 7(1)(d) of the Guidelines enables court to include in support order “extraordinary expenses for primary or secondary school education or for any other educational program that meet the child’s particular needs.” [D.G.B.] testified that she enrolled [N.G.K.B.] in pre-school in 2000 and in kindergarten in 2001. The pre-school expenses for 2001 are set out in Exhibit P-9 and total $380. The kindergarten expenses for 2002 are set out in Exhibit P-16 and total $20. [16] The Saskatchewan Court of Appeal in Kofoed v. Fichter, 169 Sask. R. 149 (C.A.) has indicated that in determining whether an expense is extraordinary the court must look at the joint income of the parties. This is so because the Table amount for child support takes into consideration ordinary expenses relating to school and extracurricular activities. In this case it is clear that [N.G.K.B.]’s enrollment in pre-school and kindergarten were in her best interest. It is also clear that the expense was reasonable in relation to the means of the parties which totals $59,757.52 calculated as follows:[D.G.B.]’s income $ 9,517.08[O.E.L.A.B.]’s income 14,971.00[J.C.M.]’s income 35,269.44Total: $ 59,757.52 The question is whether these expenses qualify as extraordinary. I find that a $20 expense for kindergarten cannot meet such a qualification. The expense relating to the pre-school would qualify as extraordinary given [D.G.B.]’s limited income of $9,517.08 per year ($793.09 per month). The problem with this claim is that in order to succeed, the court must find that retroactive order is warranted. For reasons set out further in this judgment, retroactive s. 7 expenses are not warranted. Extracurricular activities [17] Section 7(1)(f) of the Guidelines relates to extraordinary expenses for extracurricular activities. [D.G.B.] testified that [N.G.K.B.] is involved in gymnastics, music program through the University of Saskatchewan, swimming classes and craft camp. The expenses relating to these items are as follows: Gymnastics 218.00 Craft camp 100.00 Music program (Sept. 4/01 to April 9/02) 307.00 Music program 2002/03 512.00 Swimming classes 80.50 Total: 1,217.50 There is no issue that [N.G.K.B.]’s participation in these activities is in her best interest. also find them reasonable given the means of the parties. The issue is whether they qualify as “extraordinary” expenses. Given [D.G.B.]’s limited resources, find that they do. [18] Sections 7(2) and (3) of the Guidelines sets out the guiding principle in determining how such expenses should be shared. They are to be shared in proportion to the parties’ respective incomes taking into account any subsidies, benefits, income tax deductions or credits relating to the expense. In this case there are no such subsidies, benefits, tax deductions or credits. find [J.C.M.]’s contribution to [N.G.K.B.]’s s. 7(f) expenses should be 59% being his proportionate share. am not prepared to allow any retroactive s. expenses. [J.C.M.] should however pay his 59% of the costs of [N.G.K.B.]’s music program commencing in September, 2002 as well as 59% of any future costs relating to that program, [N.G.K.B.]’s gymnastics, swimming and craft camp. [D.G.B.] shall provide [J.C.M.] the receipts for these expenses as they are incurred and [J.C.M.] shall pay his 59% share of those expenses within 10 days of receiving such receipts. 2. Should the support order be made retroactive? [19] [D.G.B.] asks that the support order, including the s. expenses, be made retroactive to August 2000. She argues that financial disclosure was requested from [J.C.M.] as early as June, 2000 but he failed to provide that information until March, 2002. [J.C.M.] argues he was unaware of the request for financial disclosure. [20] [O.E.L.A.B.] testified that she instructed her lawyer to write to [J.C.M.]’s lawyer to obtain financial disclosure in 2000. Exhibit P-17 is letter from [O.E.L.A.B.]’s legal counsel to [J.C.M.]’s legal counsel. That letter requests [J.C.M.] to provide copy of his 1999 income tax return. No return was provided in response to that letter. [21] Exhibit P-18 is further letter from [O.E.L.A.B.] and [D.G.B.]’s lawyer to [J.C.M.]’s legal counsel. It refers to telephone conversation between legal counsel on February 1, 2001 where they agreed “...updated financial information from the parties would be necessary.” [J.C.M.] did not provide any financial disclosure as result of that conversation. [22] Neither Exhibit P-17 nor Exhibit P-18 mentions s. expenses. Section expenses were not specifically mentioned in the petition or the amended petition nor was there any reference to them in the interim application in 1999. [D.G.B.] testified that no request was made of [J.C.M.] for s. expenses until the day of this hearing and no information verifying s. expenses was provided to him before this date. [23] [J.C.M.] testified he kept folder of all correspondence from his legal counsel and that he could find no letter to him requesting financial information nor does he recall receiving such request. [J.C.M.] stated he was unaware financial information was required of him until February, 2002 when he appeared for the first trial date. At that time he agreed to an order for financial disclosure and complied with that order. As result of that disclosure he also unilaterally increased his support payments to $300 per month effective April, 2002. [24] Section 9(1)(c) of The Family Maintenance Act, 1997, S.S. 1997, c. F-6.2 clearly gives this Court power to make retroactive support orders. The jurisprudence however is clear that retroactive support orders should not be given as matter of course. There must be some justification for such orders. [25] The issue of retroactive child support has been canvassed by number of courts of varying levels in Canada. This Court has followed the approach taken by the British Columbia Court of Appeal in L.S. v. E.P. (1999), 1999 BCCA 393 (CanLII), 50 R.F.L. (4th) 302 (B.C. C.A.). In that case the British Columbia Court of Appeal set out the policy considerations and factors Court should consider in granting retroactive child support. The factors militating in favour of and against retroactive child support are set out in paras. 66 and 67 of that decision which read as follows: review of the case law reveals that there are number of factors which have been regarded as significant in determining whether to order or not to order retroactive child maintenance. Factors militating in favour of ordering retroactive maintenance include: (1) the need on the part of the child and corresponding ability to pay on the part of the non-custodial parent; (2) some blameworthy conduct on the part of the non-custodial parent such as incomplete or misleading financial disclosure at the time of the original order; (3) necessity on the part of the custodial parent to encroach on his or her capital or incur debt to meet child rearing expenses; (4) an excuse for delay in bringing the application where the delay is significant; and (5) notice to the non-custodial parent of an intention to pursue maintenance followed by negotiations to that end. Factors which have militated against ordering retroactive maintenance include: (1) the order would cause an unreasonable or unfair burden to the non-custodial parent, especially to the extent that such burden would interfere with ongoing support obligations; (2) the only purpose of the award would be to redistribute capital or award spousal support in the guise of child support; and (3) significant, unexplained delay in bringing the application. [26] The evidence indicates [J.C.M.]’s 1999, 2000 and 2001 income as set out in his tax returns was as follows: 1999 $41,024.00 2000 $39,520.00 2001 $35,269.44 If [J.C.M.] had provided his tax returns each year and paid child support in accordance with his income as disclosed thereon, he would have paid child support as follows:May, 2000: $335 per month based on 1999 income of $41,024;May, 2001: $324 per month based on 2000 income of $39,520; andMay, 2002 - $293 per month based on 2001 income of $35,269.44. The petitioner asks that maintenance be awarded retroactive to August, 2000 as request for financial disclosure had gone to [J.C.M.]’s lawyer in June, 2000. If the petitioner’s request is granted, this would mean retroactive maintenance of $2,497 calculated as follows: August, 2000 to April, 2002 ($335 $202 $133 months) $1,197; May, 2001 to March, 2002 ($324 $202 $122 11 months) $1,342; April, 2002 to September, 2002 ($293 $300 $7 6) $42 (credit). [27] There is no question [N.G.K.B.] needed the child support and that [J.C.M.] clearly had the ability to pay. It is also clear request for financial disclosure was made to [J.C.M.]’s legal counsel as early as June, 2000. [J.C.M.] testified that request was not forwarded to him. [J.C.M.] could not locate such request in his records. When he became aware what financial disclosure was needed he provided the same immediately. It is also notable that [J.C.M.] voluntarily increased his maintenance payment in April, 2002. accept that [J.C.M.] did not intentionally fail to provide the financial information. There was no evidence that [D.G.B.] has had to encroach on capital or incur debt to meet [N.G.K.B.]’s expenses though am satisfied that given her level of income it has been difficult to provide adequately for all of [N.G.K.B.]’s needs. It is clear that [J.C.M.] was aware of his obligation to provide support for [N.G.K.B.] and that negotiations have been ongoing for some time as to what level his obligation should be assessed at. It is noteworthy that the s. expenses were not raised with [J.C.M.] prior to the day of trial. There is no evidence before me as to [J.C.M.]’s ability to pay retroactive support or whether such an order would interfere with his ability to meet his ongoing support obligations. There is no suggestion that retroactive support is way of obtaining assets or spousal support in the guise of child support. It is also clear that the application for child support was made in timely fashion. It is not clear why the petitioners did not seek financial disclosure through the court. [28] Weighing all of the factors, find that there is no basis upon which s. payments should be made retroactive. do however find that some retroactive child support is warranted based on the Tables. As can find no blameworthy conduct on the part of [J.C.M.], am not prepared to award maintenance retroactive to August of 2000. I find that retroactive child support should be fixed at $1,500. This amount is to be paid by [J.C.M.] in equal monthly instalments of $100 commencing October 15, 2002 and continuing on the 15th day of each and every month thereafter to and including December 15, 2003 at which time the arrears should be paid in full. [29] Rule 608 of The Queen’s Bench Rules of Court provides that costs are in the discretion of the court. Rule 608(2) raises the presumption that successful party is entitled to costs in family law proceeding. [30] In this case ongoing support was not an issue. The main issues related to the s. expenses and the retroactivity of the support order. The result has been mixed and as such there shall be no order as to costs. 1. find that [J.C.M.]’s income for child support purposes is $35,269.44, that [D.G.B.]’s income for child support purposes is $9,517.08 and that [O.E.L.A.B.]’s income for child support purposes is $14,970.99. 2. I order [J.C.M.] to pay to [D.G.B.] as support for his daughter, [N.G.K.B.], born January 13, 1998, the sum of $293 per month commencing October 1, 2002 and continuing on the first day of each and every month thereafter so long as [N.G.K.B.] remains a child within the meaning of The Family Maintenance Act, 1997, supra. 3. [J.C.M.] shall pay to [D.G.B.] $302, being 59% of [N.G.K.B.]’s 2002 music program expense. This shall be paid by [J.C.M.] in three monthly instalments, $100 on October 15, 2002, $100 on November 15, 2002 and $102 on December 15, 2002. 4. [J.C.M.] shall pay to [D.G.B.] 59% being his proportionate share of the ongoing costs of [N.G.K.B.]’s participation in the music program, gymnastics, swimming lessons and craft camp. [D.G.B.] shall provide to [J.C.M.] the receipts for these expenses as they are incurred and [J.C.M.] shall pay his 59% share of those expenses within ten days of receiving such receipts. 5. There shall be no order for retroactive payment of s. 7 expenses. 6. [J.C.M.] shall pay $1,500 as retroactive child support. This amount shall be paid in equal monthly instalments of $100 per month commencing October 15, 2002 and continuing on the 15th day of each and every month thereafter up to and including December 15, 2003. 7. [J.C.M.] shall provide to [D.G.B.] and [O.E.L.A.B.] copy of his tax return by May 15 in each year commencing May 15, 2003. 8. There shall be no order as to costs.

All of the parties agreed on February 4, 2002 that the mother and grandmother would have joint custody of the 4 year old. The father was granted reasonable access on reasonable notice. The issue of child support was adjourned sine die with an order that the father provide copies of his income tax returns for the past 3 years. Issues were whether child support should be retroactive; s.7 expenses; costs. HELD: 1)The father was to pay ongoing monthly child support of $293 for so long as the child remains a child within the meaning of the Family Maintenance Act. 2)He was to pay retroactive child support of $1,500 in monthly installments of $100. There must be some justification for retroactive support orders. This Court followed the approach taken by BC Court of Appeal in L.S. v. E.P., which set out the factors a court should consider in granting retroactive child support. He should have paid $335 in 2000; $324 in 2001; $293 in 2002. It was not clear why the petitioner did not seek financial disclosure through the Court. 3)The father was to pay his 59% share of the costs of the music program, gymnastics, swimming and craft camp within 10 days of receiving receipts. There was no prior spending pattern for the court to consider, as the child had no independent needs and was only 3 months old when the parents separated. While illness can qualify as a legitimate reason for requiring child care, the illness must relate to the child's custodian, not to a third party. The preschool expense was reasonable in relation to the total means of the three parties. The $20 kindergarten enrollment expense did not qualify as extraordinary. Retroactive s.7 expenses were not warranted. 4)There was no order for costs as results were mixed.

5_2002skqb378.txt

J. 2001 SKQB 347 Q.B. A.D. 2001 No. 376 J.C.P.A. IN THE QUEEN'S BENCH JUDICIAL CENTRE OF PRINCE ALBERT and HIS HONOUR JUDGE T.W. FERRIS RESPONDENT G.A. Chovin for the applicant J.E. Syrnick for the Crown JUDGMENT WILKINSON J. July 6, 2001 [1] This is an application for orders of certiorari and mandamus concerning a decision of a Youth Court judge not to appoint counsel to represent a young person. [2] The issue is whether the Court has discretion to refuse, having regard to the provisions of s. 11(4) of the Young Offenders Act, R.S.C. 1985, c. Y-1, which states: 11(4) Where young person at his trial or at hearing or review referred to in subsection (3) wishes to obtain counsel but is unable to do so, the youth court before which the hearing, trial or review is held or the review board before which the review is held (a) shall, where there is legal aid or assistance program available in the province where the hearing, trial or review is held, refer the young person to that program for the appointment of counsel; or (b) where no legal aid or assistance program is available or the young person is unable to obtain counsel through such program, may, and on the request of the young person shall, direct that the young person be represented by counsel. [3] It has been held that once young person makes request of the Youth Court for representation by counsel the language of s. 11(4)(b) on plain reading makes it abundantly clear that the exercise of discretion is no longer an option and the making of an order becomes mandatory (see R. v. T.W.P., [1996] O.J. No. 2668 (Prov.Div.)). [4] In the context of s. 11(4)(b) as it applies to the circumstances before me, the issue involves the meaning of the word "unable". On April 4, 2001 the young person appeared before the Youth Court judge and requested that the Court appoint him counsel after his Legal Aid lawyer withdrew. The young person was facing variety of charges including failure to comply with conditions of an undertaking, failure to attend court, possession of property obtained by crime and obstructing peace officer. The Youth Court judge was told that the young person's parents were both on social assistance and would likely be unable to provide financial assistance to him. The young person indicated he had no resources. The matter was adjourned to investigate the possibility that an aunt might be able to provide financial assistance in the matter of obtaining counsel. [5] When the matter resumed on April 11, 2001, the young person advised the Court that his aunt was unable to assist him financially. The Youth Court judge then asked why the young person did not stick with his Legal Aid lawyer. The response was "I don't know. Because was messing up in court and not coming to court" and "not phoning them and stuff". As the court records indicate the young person failed to appear on the trial date and bench warrant issued. [6] Counsel for the young person suggests the judge relied simply on the Crown's contention that the matters the young person was facing were uncomplicated and fact-driven in deciding not to appoint counsel. If that was the case, there would be grounds for complaint. However, the judge goes on to state at p. 23 of the transcript: In my view, relying on my decision in R. v. DJB which was another young offender who wanted the Judge to appoint lawyer for him at the taxpayers' expense it appears to me that it's not case where you were unable to obtain counsel through Legal Aid initially, which is what section 11(4)(b) of the Act refers to. You had counsel and they quit on you because you didn't bother to go see them, you didn't come and attend at your trials. You now want me to appoint private counsel. There's no reason for me to believe that you would be any more cooperative with him. decline to appoint lawyer for you. [7] That excerpt sets out the basis on which the learned judge declined to appoint counsel. was not favoured with copy of the decision in R. v. DJB and it does not appear to be reported. Nonetheless, it would appear to be premised upon the ordinary and natural meaning of the words in s. 11(4)(b), supra. Here, it is not case where the young person was unable to obtain counsel through the Legal Aid program. He had Legal Aid representation but disentitled himself to continued representation by his own misconduct. [8] Counsel for the young person cited two concurrent decisions of the Ontario Court of Appeal, R. v. J.H., [1999] O.J. 3894 and R. v. M.(B.) (1999), 1999 CanLII 3795 (ON CA), 139 C.C.C. (3d) 480, where, at p. and p. 8, respectively, the court stated: In the final analysis, this case is about the simple matter of the proper administrative process to be followed before youth court judge is required to order state-funded counsel for young offender. Before the state pays for counsel, the inability of the young person to obtain counsel must be established. This question cannot completely be answered without reference to the finances of the young person's parents. That is all that has been decided in this case. Nothing in this decision should be read as in any way denigrating or casting doubt on the proposition that young people in this province have the right to counsel. [9] Counsel for the young person argues that the Court's discretion in s. 11(4)(b) is limited to inquiries regarding the ability of parent or family member to provide financial assistance. If the result of the inquiry is that the young person has no financial resources whatsoever available to him, as is the case here, then counsel must be appointed. The use of the word "shall" in s. 11(4)(b) means the court has no jurisdiction to decline the request. [10] Prior to the decisions of the Ontario Court of Appeal, the cases had predominantly held that the youth court had no jurisdiction to inquire into the means of the parents. note that an application for leave to appeal the decision in R. v. J.H. was dismissed by the Supreme Court of Canada on May 25, 2000 at [1999] S.C.C.A. No. 611 (Q.L.). [11] It is noteworthy that in R. v. M.(B.), at para. 15, the Court of Appeal said that because the Act makes inability to obtain counsel the touchstone for the analysis, the youth court judge has every right to determine inability and has discretion to determine on case by case basis whether such inability exists. [12] In my view, the Youth Court\'s discretion to determine inability is not limited solely to considerations of financial inability. Inability may be asserted for other reasons and the court is entitled to inquire into the foundation. In R. v. B.W., [1997] B.C.J. No. 3056 (Q.L.) (B.C. Youth Courts), the young person refused to be represented by legal aid counsel and applied for court appointed counsel of his own choice. He argued he ought to be able to discharge his counsel without disclosing reasons. The court held that such broad reading of s. 11(4)(b) of the Act was not warranted and that in the absence of substantive reason for the discharge of his legal aid counsel the court would not appoint counsel at public expense. The court noted such broad interpretation begs the question as to what would occur if counsel of choice refused to act for whatever reason. [13] Here, if counsel for the young person is correct and the inquiry as to inability to obtain counsel is limited solely to financial inability some manifestly absurd results could follow. young person without financial assistance could, ad infinitum, disqualify himself from legal representation by his own misconduct or discharge his counsel for whatever reason and repeatedly insist on the appointment of substitute counsel. [14] Accordingly, I am of the view the learned Youth Court judge did not err in refusing to direct that the applicant have counsel appointed to him. The application is accordingly dismissed.

An application for certiorari and mandamus. In issue is whether the Youth Court judge has the discretion to refuse to appoint counsel to represent a young person having regard to the provisions of s.11(4) of the Young Offenders Act. The meaning of the word 'unable' in s.11(4)(b) was in issue. The youth was facing a variety of charges including failure to comply with conditions of an undertaking; failure to attend court; possession of property obtained by crime; obstructing a police officer. He requested the Youth Court appoint counsel after his Legal Aid lawyer withdrew. Both parents were on social assistance. The matter was adjourned to investigate the possibility of an aunt providing financial assistance but the youth advised in April that she was unable to do so. HELD: The application was dismissed. The Youth Court judge did not err in refusing to direct counsel be appointed. The Youth Court judge's discretion is not limited solely to considerations of financial inability. The youth disentitled himself to continued Legal Aid representation by his own misconduct.

3_2001skqb347.txt

D.I.V. No. 023311 J.C.Y. IN THE QUEEN'S BENCH JUDICIAL CENTRE OF YORKTON BETWEEN: MARGARET MERRIMAN and RONALD WILLIAM CHARLES MERRIMAN RESPONDENT Richard Yaholnitsky for the petitioner Ronald J. Balacko for the respondent JUDGMENT MacLEOD J. October 27, 1997 In this trial the wife/petitioner ("Margaret") seeksmaintenance for herself from her husband/respondent ("Ron"). Margaret was born June 17, 1941, and at the trial was 56 years old. Ron was born November 22, 1935, and at the trial was 61 years old. The parties were married November 11, 1961. The parties separated June 27, 1994, but the husband actually left the residence some time later. Margaret had grade education and part of grade 9. She was then employed briefly in Yorkton, but at the time of the marriage she was helping her parents on the farm and had no outside employment. Ron was employed at the Theodore Credit Union as an assistant manager or the equivalent. Throughout the marriage Ron has been employed by the Theodore Credit Union, and has been the manager for many years. For short time during the marriage, Margaret was employed in sales position in Yorkton, but was dismissed. She blames Ron's interference for her dismissal. Ron says he is unaware of the reasons for her dismissal. The parties started with virtually nothing and built respectable estate and raised children, all of whom are now adults. It was agreed that Margaret would stay home and raise the children and Ron would earn the living. This marital arrangement had the practical effect of having each of them do what each did best. This was to the benefit of the parties and their family. am satisfied that each contributed to the marriage and its goals. The separation occurred after time of deteriorating relations. The terminal event occurred when the parties visited their daughter, Leanne. Ron offered to help, but Margaret said, "Get out of the way". The daughter said something like, "None of that, mother". Margaret sulked and nothing more was said then or on the way home between Ron and Margaret. He found his pillow in the corridor and he went down stairs and never came back to the marital bed. Both parties testified. formed the impression that Margaret was given to exaggeration. Her testimony seemed to produce suspicion of hysteria, although accept that she believes the facts to which she has testified. Her testimony about her searches for employment carried overtones of blame to Ron. Ron suggests that her personality was problem. can believe that. On the question of credibility accept Ron's version on all important matters and his general narrative as to the course of the marriage. The parties have divided the matrimonial property evenly. It is doubtful that Margaret would have done so well had she not been attached to Ron. That does not, however, dispose of her claim. good deal of testimony was directed to her expenses and the money she needed from him to meet her chosen expenditures. This claim misses the point. In the short term, that is, immediately after separation, the expenses of party may be governed by the conditions existing at the separation. Long term arrangements, however, are not the same. Each party must limit his or her lifestyle and expenses to suit the income of that party. spouse's claim is not to be measured by the amount of money that spouse chooses to spend. The claim is to be determined in accordance with the Divorce Act, R.S.C. 1985, c. (2nd Supp.). Margaret said there is no work for her in Theodore and, in any event, that her health would not permit it. On discovery Margaret dealt with these questions as follows: 281 Have you looked for work in Theodore? What work in Theodore? There is no jobs in Theodore. 285 And there's been nothing physically or mentally preventing you from doing that, is there? don't think that was ever problem. But where am going to get those jobs from? She mentioned trouble with her wrist and that by the time she finished her yard work she did not golf much. The discovery was April 1, 1997, but at the trial her health was emphasized much more as disabling factor. Ron says she is capable babysitter and that there is demand for this service in Theodore. He gave specific examples. I am satisfied that Margaret could become employedbut at a rate at or not greatly over the minimum wage. Shecould earn something in the vicinity of $1,000.00 per month,but has no motivation at the present to do so. She hasconvinced herself that there is no work available and that herhealth does not permit it. Ron plans to retire from his position as manager of the Credit Union in 1998. He also has small income tax accounting business and is presently an elected member of the East Central District Health Board. This last is subject to the decision to run again and subject to being re-elected. accept that his gross income should exceed $60,000.00 for all of 1997 and $5,000.00 per month for eight months of 1998. In addition, take into account that despite his age he will retain certain income earning potential which, at the least, constitutes form of income insurance. Margaret claims support order under s. 15.2(1) of the Divorce Act, the objectives of which are set out in s. 15.2(6) as follows: (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. Margaret\'s half of the matrimonial property includesher share of a superannuation program which will be enhancedby delay in the actual divorce. She will therefore benefit byhaving bridge income until she attains age 60 on June 17,2001, a total of 42 months from and including January 1, 1998. In this respect consider Ron's prospective earning time remaining as compared to her longer earning years at much lower income, having in mind the factors noted above. The objectives of s. 15.2(6) will be satisfied by the following order: 1. There will be judgment for a divorce in the usualform, but it will not be issued until after January 1, 1998; 2. The interim maintenance order will terminate with thepayment for December, 1997; 3.(a) Subject to subparagraph (b) hereof, Ron shall payMargaret by way of maintenance, the lump sum of $18,000.00which shall be made on or before June 30, 1998. (b) The said lump sum shall be free from any income tax. (M. W. Rashkis, M. L. Benotto, Income Tax and Family Law Handbook (Toronto: Butterworths, 1988, updated 1997, Issue 19) at 1-9(8)-1-9(9). 4. Ron will pay $1,000.00 as costs, payable immediately, to Margaret.

The petitioner sought spousal maintenance. The parties, now 56 and 61, were married in 1961 and separated in 1994. The wife had part of Grade 9 and the parties had agreed she would stay home and raise the four children. HELD: 1)Judgment for divorce was to be issued in the usual form after January 1/98. 2)The respondent was to pay as maintenance a lump sum of $18,000 free from any income tax. The interim maintenance order was to terminate with payment for December 1997. The wife could find employment but at a rate at or near minimum wage. She had no motivation to work, having convinced herself that there was no work available and that her health did not permit it. The wife would benefit from having bridge income until she attained age 60 in 2001. Her half of the matrimonial property included a share of a superannuation program. 3)The respondent was to pay $1,000 as costs to the petitioner.

3_1997canlii11208.txt

QUEEN’S BENCH FOR SASKATCHEWAN Date: 2009 09 29 Citation: 2009 SKQB 517 Docket: QBG 153/05 Judicial Centre: Regina BETWEEN: ROSA ALVES, MARIE BONNER, DALE BONNER, ROBERT BRANDT, KELLY BREZINSKI, DARREN MCLELLAND, CORRADO PAINA, DENIS SANCHE, INEZ SANCHE, BARTON SMITH, MICHELLE SMITH, JANUSZ SPRAWNY, PETER TATHAM, LAURIE WILSON, CINDY WRIGHT,JOE WURM, and REBECCA WURM and MYTRAVEL CANADA HOLIDAYS INC., carrying on business as SUNQUEST, FIRST CHOICE CANADA INC., carrying on business as SIGNATURE VACATIONS, TRANSAT A.T. INC., carrying on business as WORLD OF VACATIONS and AIR TRANSAT HOLIDAYS, RED SEAL VACATIONS INC., carrying on business as SUNWING Counsel: E.F.Anthony Merchant, Q.C. for the plaintiffs Mirilyn R. Sharp for the defendant, Red Seal Vacations Inc. Sally Gomery for the defendant, MyTravel Canada Holidays Inc. Brad D. Hunter for the defendant, Transat A.T. Inc. Timothy J. Law For the defendant, First Choice Canada Inc. JUDGMENT KEENE J. September 29, 2009 1) Mr. Merchant brings two separate notices of motion. The first request is that Sarah Moore be examined on her affidavit. Ms. Moore swore this affidavit on June 24, 2009. 2) The second motion requested the following relief: (a) Red Seal Vacations Inc. (“Red Seal”) deliver notice to class members who booked vacation through Red Seal to stay at resort in Holguin, Cuba between November 1st, 2004 and February 1st, 2005 in the following terms: On behalf of those who purchased vacation package from one or more of the Defendants to stay at resort in Holguin, Cuba between November 1st, 2004 and February 1st, 2005, the Plaintiffs, through their counsel, Merchant Law Group LLP, filed class action lawsuit in the Court of Queen’s Bench for Saskatchewan. The lawsuit asserts that the Defendants failed to provide basic water services at various Holguin resorts including the (1) Playa Costa Verda/Playa Pesquero; (2) Club Amigo Altantico Guardalavarca; (3) Club Covarrubias; (4) Maritim Costa Verde Beach; (5) Playa Pesquero; (6) Grand Playa Pesquero; (7) Brisas Guardalavaca; and (8) Sol Rio de Luna Mares, and that class members suffered loss and are entitled to aggravated, compensatory, and punitive damages as result. In order to be advanced as class action, the lawsuit must be certified by the Court of Queen’s Bench. On November 24th, 2008, the Plaintiffs applied for certification. The application is currently scheduled to be heard during the week of January 25th, 2010 before the Honourable Mr. Justice Keene. You are receiving this notice now because on March 12th, 2009, Defendant, Red Seal Vacations Inc. (“Red Seal”) moved to dismiss the claim against it on the basis that there is no plaintiff named in the statement of claim who purchased Holguin vacation package from Red Seal. The Plaintiffs have opposed the motion. If the motion succeeds, the action will be dismissed against Red Seal only. If you purchased Holguin vacation package through Red Seal, you may then be barred from filing an individual action due to the expiry of an application limitation period. If you are willing to be representative plaintiff, seek to participate in or be separately represented at the certification hearing, or want additional information concerning this class action or the above notice and its consequences on you, please contact Merchant Law Group LLP at (888) 567-7777 forthwith, failing which your right to bring court proceedings arising from this matter may be forever extinguished without further notice. (b) or, alternatively, that Red Seal provide list of the names and addressess of potential class members who booked through Red Seal to this Honourable Court or to Merchant Law Group LLP so that the said notice may be effected. 3) This judgment will deal with both motions in addition to the other issues raised during argument. These motions were heard on September 17, 2009. Mr. Merchant participated on behalf of the plaintiffs and Ms. Sharp participated on behalf of the defendant Red Seal Vacations Inc. Counsel for the other defendants took no role in the application although Mr. Law, Counsel on behalf of the defendant First Choice Canada Inc. listened to the argument via telephone. 4) This is essentially matter between the plaintiffs and Red Seal Vacations Inc. (Red Seal). The issues can be described as follows: a) whether plaintiffs’ counsel, Merchant Law Group, (MLG) should be granted leave pursuit to Rule 317 to cross examine Sarah Moore on her affidavit sworn June 24, 2009; b) whether MLG should be granted an order requiring Red Seal to serve pre-certification notices to all persons who travelled with Red Seal during the purposed class; c) whether MLG is entitled to demand, prior to the hearing of the certification motion, that Red Seal provide MLG with list of names and addresses of all persons who travelled with Red Seal during the proposed class; d) should there be compliance with Rule 82(6) and Rule 82(7) of the Saskatchewan Queen’s Bench Rules of Court; e) costs of these two applications ANALYSIS OF ISSUES 5) a) whether plaintiffs’ counsel, Merchant Law Group, (MLG) should be granted leave pursuit to Rule 317 to cross examine Sarah Moore on her affidavit sworn June 24, 2009; 6) It is important to review how the Moore affidavit came to be. Red Seal earlier sought to conduct examination of seven persons alleged by the plaintiffs to be viable class members in the proceeding against it (the Roussys and boyfriends ). Red Seal alleges that these seven people had all ready entered into full and final settlements with it and are not therefore entitled to be part of the action against Red Seal. 7) Mr. Justice Ottenbreit was the designated Justice of this action at that time. Ottenbreit J. delivered judgment on the above issue on June 16, 2009. The judgment held that counsel for Red Seal could not examine the Roussys. However, the court directed that: [11] am, therefore, not prepared to make the order requested by counsel for Red Seal. However, am prepared to allow Red Seal to file an affidavit with respect to this issue within seven days on the basis that Red Seal may argue that should consider it as part of the certification. Likewise, the plaintiffs have leave to file response affidavit within three days thereafter which they may, as well, want me to consider at certification.” 8) In accordance with Ottenbreit J.’s direction; Sarah Moore sworn an affidavit on June 24, 2009 on behalf of Red Seal. 9) It is important to appreciate the context by which the Moore affidavit was filed in these proceedings. The affidavit was filed for the sole purpose of providing the evidence that the Roussys had settled with Red Seal and therefore could not be viable parties to this action. This type of evidence and the arguments that apparently flow from this evidence are not to be heard now, but will be heard on January 25, 2010 in conjunction with Red Seals request to dismiss this action against it. 10) The Moore affidavit contains several paragraphs (para. 9, 10, 11, 12 and 13) that are of limited probative value and appear to be more argument than anything else. However, the balance of the affidavit alleges “settlement” entered into by the Roussys with Red Seal. 11) Therefore the Moore affidavit has followed the direction of Ottenbreit J. (i.e. providing an affidavit on the issue of the viability the Roussys as plaintiffs). 12) Ottenbreit J. went on to direct that the plaintiffs could file reply affidavit within days of the filing of the Moore affidavit. The purpose of the reply affidavit was to give the Roussys or others an opportunity to provide evidence on the issue of the settlement with Red Seal. 13) Ottenbreit J. was careful not to enter into any sort of discussion as to the merits of any defences. The court merely wanted to give Red Seal an opportunity to put forth evidence regarding the alleged settlement and give the plaintiffs an opportunity to reply. 14) In light of the above contextual understanding of the Moore affidavit and how it came to be; it is not necessary in my view to discuss the complexities of pre-certification examination of witnesses. 15) am merely following Ottenbreit J.’s judgment by noting that Red Seal could (and did) provide an affidavit specifically dealing with the issue that arose out of the request by Red Seal to examine the Roussys. 16) There is nothing in the judgment of Ottenbreit J. that could be interpreted as saying the plaintiffs could cross examine Ms. Moore on her affidavit in due course. Indeed Ottenbreit J. directed that the only thing the plaintiffs could do was to file a reply affidavit within three days. The plaintiffs chose not to do this. 17) In my view it is not reasonable for the MLG several weeks after the deadline for filing the reply affidavit to embark on a totally different approach (i.e. examining the affidavit as opposed to providing their own evidence). 18) It appears to me that the actual purpose of examining Ms. Moore is not to challenge her version of the circumstances leading up to the signing of the alleged settlement agreements by the Roussys, but rather a more general and broad ranging interrogation of Ms. Moore about other customers who may have booked through her office with Red Seal at the relevant time of this case. The examination may even end up being more broad ranging than that and could be an attempt via Ms. Moore to get information from Red Seal itself as to its customer data base that Red Seal may have regarding customers that may have booked with Red Seal to go to Holguin during the relevant time. It is clear that Ms. Moore is not director or officer of Red Seal and that in itself might lead to multitude of issues such as production of documents and undertakings and so forth. From practical point of view that could result in further motions arising out of this examination. 19) Accordingly, based on the plain wording of Justice Ottenbreit J.’s judgment and the context of the preparation of the Moore affidavit; I must dismiss the application for examination on the Moore affidavit. 20) appreciate that both counsel spent considerable amount of time discussing whether or not examinations of affidavits can take place at the pre-certification stage. 21) Counsel for Red Seal took the position that there have not be any previous cases in which plaintiff was allowed to cross examine defendant on an affidavit. 22) Counsel for the plaintiff stated that may be correct but that is of no consequence. 23) However, as indicated it is not necessary for me to get into the whole issue of examination of witnesses prior to certification. am not prepared to broaden the scope of Ottenbreit J.’s decision to allow for examination of Ms. Moore. b) whether MLG should be granted an order requiring Red Seal to serve pre-certification notices to all persons who travelled with Red Seal during the purposed class; c) whether MLG is entitled to demand, prior to the hearing of the certification motion, that Red Seal provide MLG with list of names and addresses of all persons who travelled with Red Seal during the proposed class; 24) The second motion is more complex and requires more thorough analysis of the legislation and case law. 25) Essentially Mr. Merchant wants the defendant Red Seal to produce list of names, addresses, etc. so that his office can provide notice to such individuals as follows: “If you are willing to be representative plaintiff, seek to participate in or be separately represented at the certificate hearing, or want additional information concerning this class action or the above notice and its consequences on you, please contact Merchant Law Group LLP at (888-567-7777) forthwith, failing which your right to bring court proceedings arising from this matter may be forever extinguished without further notice.” 26) In the alternative Mr. Merchant proposes that presumably because of confidentially issues that Red Seal send out the above notice and provide proof that the notice was sent out in compliance with anticipated order. 27) It is important to remember that we are in the pre-certification stage of this proceeding. This is still an “action” and not a “class action”. An action is defined under s. of The Class Actions Act as meaning “an action that defined The Queen’s Bench Act, 1998" and Class Action is defined under s. as meaning “an action certified as class action pursuant to Part II”. 28) Mr. Merchant’s request for this pre-certification notice is novel. In its barest terms it is request that defendant provide plaintiff. There is much more complexity to this but as stated in its barest sense that is what this amounts to. 29) This is still an “action” only. The usual practices and application of the common law regarding civil litigation apply. The practices and the implementation of The Rules of Court do not get suspended merely because this matter has been brought under The Class Actions Act. 30) have taken into consideration Mr. Merchant’s comments about his interpretation of Hoffman vs. Monsanto Canada Inc., 2003 SKQB 564 (CanLII) and Smith J. comment’s as follows: [18] finally, it is appropriate to consider that class actions legislation as relatively new in Canada, in general, and in Saskatchewan, in particular, jurisprudence interpreting the criteria for certification still in its infancy. This provides additional reason why the court should be slow to duly restrict the evidential record that either party wishes to place before the court, which might be necessary for advancing novel arguments on still unresolved issues. 31) agree that some latitude has been given to the pre-certification portion of an action. However, in my view the uniqueness of class action cases do not completely bend the conventional rules and practice regarding civil litigation. It would essentially not make sense for defendant to have to produce plaintiff. 32) am aware of Lewis Shell (2000) 2000 CanLII 22379 (ON SC), 48 O.R. (3d) 612 in which the Ontario court ordered notice to potential class members. However, that case is not similar to this case. In the Lewis case the court was faced with concern over the defendant contacting individuals who might be potentially class members for the purpose of obtaining early settlements. That is not the situation here. 33) note the following sections in our Class Action Act: s. 14 The court may, at any time, make any order it considers appropriate respecting the conduct of class action to ensure fair and expeditious determination and, for that purpose, may impose on one or more of the parties any terms it considers appropriate. (Emphasis added) s. 24(1) At any time in class action, the court may order any party to give notice to the persons mentioned in the order to protect the interrests of any class member or party or to ensure the fair conduct of the action.(Emphasis added) 34) The two sections refer to “class action” and not “action”. Accordingly the plain wording of the two actions is that either section can only be referenced by party after the action has been approved as class action. According it is not in my view open to the plaintiffs make use of either section at this time. 35) It is important to keep in mind in reading cases from Ontario that neither the section dealing with the service of notice (section 19 of the Ontario Class Proceedings Act) nor the general provision allowing the Court to make any order considers appropriate (section 12 of the Ontario Class Proceedings Act) are limited to actions that have already been certified (unlike s. 14 and s. 24(1) our Class Action Act). 36) In Pearson vs Inco 2001 CanLII 28084 (ON SC), 2001 57 OR (3d) 278, the plaintiff brought motion pursuant to s. 12 of The Class Proceedings Act of Ontario for an order compelling the defendant to produce list of proposed class members who had been provided with letter and related package by the defendant (relating to test of their premises for contamination). In dismissing the motion, Mr. Justice Nordheimer first considered whether he had authority under The Class Proceedings Act to make the requested order prior to the certification and then concluded that even if he did not have authority under the Ontario Class Proceedings Act, it was his view that “any intervention by the court prior to certification should be narrowly directed and sparingly employed”. 37) quote from Mr. Justice Nordheimer in the noted case as follows: [8] “It should be noted at this juncture that, notwithstanding the plaintiff’s concerns that the materials are misleading, the plaintiff does not seek through this motion to restrain Inco from distributing the package nor does it seek to have this court direct Inco to change any portion of the material. Rather, the plaintiff seeks only to have the court order Inco to reveal the names of the nine property owners who have, to date, received the package. While not expressly requested, assume that the plaintiff wishes to have not only those names, but also the names of any property owners to whom the package may be sent in the future. It is acknowledged by counsel for the plaintiff that they want this information to that they may, in turn, send out their communications in effort, presume, to “correct” the record. [9] Section 12 of the Class Proceedings Act, 1992 states: 12. The court, on the motion of party or class member, may make any order it considers appropriate respecting the conduct of class proceeding to ensure its fair and expeditious determination and, for the purpose, may impose such terms on the parties as it considers appropriate. [10] confess that the wording of s. 12 does not make it clear to me how it confers jurisdiction on the court to make orders prior to the certification of the proceedings as class action since the section expressly refers to “class members”. Arguably, one cannot be class member until class is certified which would, in turn, suggest that the section was not intended to operate until class existed. However, other decisions of this court have relied on s. 12 to grant such orders see, for example Vitelli v. Villa Giardino Homes Ltd., (2001), 2001 CanLII 28067 (ON SC), 54 O.R. (3d) 334 (S.C.J.) And Lewis v. Shell Canada Ltd. (2000), 2000 CanLII 22379 (ON SC), 48 O.R. (3d) 612, 46 C.P.C. (4th) 378 (S.C.J.). While am not bound by those decisions, would be loathe to disagree with their conclusion unless compelled to do so. am also cognizant of the fact that, even if the section does not grant the required authority, presumably party could still have resort to the inherent jurisdiction of the court to control its own process to obtain such relief. The issue is one that, in the end result, therefore, appears unnecessary to address. That being said, though, the jurisdictional concern only reinforces in my mind that any intervention by the court in such circumstances should be narrowly directed and sparingly employed since it serves to interfere with what otherwise would be the normal rights of parties, and others, to conduct their affairs as they see fit.” 38) Thus, even in situation where the Ontario Class Proceedings Act arguably allowed the Ontario Court to make pre-certification orders to produce list of proposed class members, Justice Nordheimer refused to do so because he did not consider that the circumstances warranted the exceptional intervention of the court under s. 12 The Class Proceedings Act, 1992. 39) In Saskatchewan the case of Sparvier vs Canada 2006 SKQB 533 (CanLII), Mr. Justice Ball dealt with pre-certification request by defendants counsel to order MLG to produce documents substantiating its entitlement to legal fees of $40,000,000.00 in the residential schools class proceedings. Justice Ball dealt specifically with the authority of the Saskatchewan Court to make pre-certification orders. 40) In that case the defendant argued that s. 14 of The Class Actions Act gave Justice Ball authority to make the pre-certification disclosure order. However, Justice Ball reviewed the words of s. 14 and the definition of “class action” and concluded at paragraph 36 that “until [the action] is certified, s. 14 does not apply.” In other words, it was Justice Ball’s view that the defendant could not rely on s. 14 prior to certification of the action as class action. 41) Justice Ball then went on to deal with the defendant’s assertion that despite the working of s. 14, the Court had an inherent jurisdiction to make the requested order for disclosure of documents. He held at paragraph 30 that: “...a superior court’s inherent jurisdiction to control its own process has been defined as the exercise of it residual power to ensure due process of lase, to present improper vexation or oppression, to do justice between the parties and to secure fair trial between them...” 42) Justice Ball went on to caution, however, that the Court’s inherent jurisdiction “is to be exercised judicially and only when the relief sought cannot reasonable and realistically be obtained by the applications in some other lawful manner”. He also noted that the Court’s inherent jurisdiction “will not be exercised in manner that effectively renders remedial legislation redundant.” In the end, Justice Ball refused to grant the pre-certification documentary production. 43) Here it seems that MLG has had over the last or so years ample opportunity to acquaint itself with prospective plaintiffs through “some...lawful manner”. 44) Counsel for the plaintiffs refer to Wallace CPR 2009 SKQB 178 (CanLII) as authority for obtaining pre-certification motions. However that case can be distinguished on the grounds that it dealt with unique set of circumstances in that the defendant was arguing that the counsel for the plaintiff had conflict of interest and should not be allowed to handle the case. In that case there was no reference by the court to s. 14 or 24 of The Class Actions Act. It would appear that the court was concentrating more on common law regarding that preliminary conflict objection. 45) Counsel for Red Seal referred to the Johnston State Farm (2003) 38 CPC (5th) 181, as further authority that this type of pre-certification notice (i.e. the defendant to give notice to the perspective plaintiffs) should fail. It is important to note that the Johnston case deals with the different legislation in Ontario (that is not as restrictive as the Saskatchewan legislation when it comes to pre-certification notice). 46) Counsel for Red Seal advises that the Johnston case dealt with the Ontario equivalent of the very section Mr. Merchant now relies on as support for the requested order for pre-certification notice and/or list of names and addresses of person who travelled to Holguin through Red Seal. 47) Justice Haines rejected out of hand the notion that s. 19 could be used to recruit representative plaintiffs when it turned out the original proposed representative plaintiff had no cause of action. In paragraph of his decision, Justice Haines held as follows: “.. do not see that the purpose of section 19 (1) is to provide mechanism for the recruitment of alternative representatives plaintiffs when it turns out the proposed represented plaintiff has no cause of action.” 48) am trying to be careful not to determine the merits of application to strike the action against Red Seal. However the Johnston case is illustrative of situation in which superior court did not allow for the notice to be circulated to perspective plaintiffs. 49) Justice Haines went on to state at paragraph 7: “It is my view that there is nothing in the conduct of the proceedings to date that could be characterized as unfair. Counsel for the plaintiff was made aware, very early in the proceedings, that the defendant was taking the position the plaintiff had no claim and would be moving for summary judgment. Counsel, therefore, had ample time and opportunity to find suitable substitute representative plaintiff and did not.” 50) Counsel for Red Seal has been quite open about its approach to these matters It wishes to have the action against itself struck for failure to produce proper representative plaintiff. 51) am not determining that contention at this time. The Johnston case is merely instructive to provide an example of where an Ontario Court faced with less restrictive wording declined to allow pre-certification notices to be sent to perspective plaintiffs. 52) In summary it is my view that usual approach to civil litigation does not allow for plaintiff to demand defendant produce plaintiff. Secondary the wording of s.14 and s. 24 of our Act in my view precludes this type of pre-certification notice. Finally the Sparvier case appears to be authority that success of such pre-certification motions would be rare in this jurisdiction. 53) However the matter does not end itself there. Mr. Merchant submits that the wording found in section 43(1) and 43(2) of the Act create concern about the suspension of time limitations. In other words if follow his argument it appears that he is saying that if he can not find viable plaintiffs in time for the certification hearing and rule that the Ragoonanan motion succeeds then that would fatal to large number of unsuspecting plaintiffs. 54) Mr. Merchant cited no Saskatchewan authority for the proposition that the limitation is suspended only if the action is eventually certified. 55) must emphasis that this discussion is not determinative for the purposes of the present motion. However, it is in my view that on proper reading of section 43(1) and 43(2) of The Class Actions Act, the limitation period is suspended both in the case of actions that are certified [s. 43 (2)] and in certain limited circumstances, in the case of actions that are not certified [s. 43(1)]. 56) Section 43(2) of The Class Actions Act deals with the suspension of limitations periods where the action is “certified as class action” and section 43(1) of The Class Action Act deals with the suspension of limitation periods even when the action is not certified not as class action. 57) Subsection 43(2) already codifies completely the concept of suspending the limitation period for actions that are eventually certified. What would be the purpose of subsection 43(1) if not to also include suspension of the limitation period (in certain circumstances) for actions that are not certified? 58) The reason Mr. Merchant raised this “limitation” concern is provide further initiative to this court to employ its inherent jurisdiction to look past the clear wording of s. 14 and s. 24(1) to “save the day”. am not satisfied that Mr. Merchant’s interpretation of the tolling of the limitations period is correct. 59) d) should there be compliance with Rule 82(6) and Rule 82 (7) of The Saskatchewan Queen’s Bench Rules of Court; 60) In the course of argument on September 17, 2009, Mr. Merchant raised concern about the noncompliance by counsel for Red Seal regarding Rule 82(6)(7). 61) Counsel for Red Seal complained that they had been taken off guard by this new issue and they did not anticipate having to argue the matter. 62) do not think that this is particularly complicated matter. Counsel for Red Seal was given ample opportunity to explain her position on this matter. Mr. Sharp advises that during case management conducted by Ottenbriet J. meeting she stated that she was not going to provided an affidavit. It appears that other counsel have filed the required affidavits as required by Rule 82(6)(7). It also appears clear that Red Seal opposes the certification application (i.e. therefore triggering the need to comply with Rule 82(6)(7). 63) Counsel for Red Seal advised it is part of her strategy to not provide the affidavit under Rule 82(6)(7) and that there has been no previous complaint or motion to compel her to do this. 64) Mr. Merchant has now raised this concern. 65) am satisfied that it is important that counsel follow the Rules of Court in actions commenced pursuant to The Class Actions Act. do not wish in any way that my comments be considered critical of the professional conduct of the counsel for Red Seal. That is not my intention. Counsel for Red Seal advises that she made mention of her strategic decision not to file the affidavit considerable time ago. accept that this took place. In addition counsel for Red Seal was candid during her oral argument on September 17, 2009. do not believe that her conduct was in any way unprofessional or unethical. 66) However, am going to order that counsel for Red Seal (and any other defendant who may not have complied) to comply with Rule 82(6)(7) and serve and file the required affidavit no later October 15, 2009. 67) The arguments raised were novel and certainly thought provoking. Even though dismissed both motions brought by MLG wish to exercise my discretion and not award costs. 68) I therefore dismiss both motions brought by MLG without costs. 69) In my previous fiat indicated that depending on the outcome of this particular matter would be putting forth schedule to help get this file moving ahead. know that counsel has not been given an opportunity to discuss scheduling but note that Justice Ottenbreit has already done this and had these matters proceeded when they were scheduled to do so the certification hearing would have actually been completed. Accordingly am going to presume that counsel would have been able to proceed earlier. Therefore do not feel that am in any way inhibiting the ability to present argument on January 25, 2010 by setting down some deadlines to get materials filed. 70) Therefore taking into consideration that this matter has been adjourned and would have been done by now; it seems reasonable that there has to be deadline to file amendments, briefs, or any other material. Accordingly order that the deadline to serve and file any amendments to the pleadings, motions, further briefs of law or any other material shall be December 2, 2009 at 4:00 p.m. Regina time. further give to until December 11, 2009 at 4:00 p.m. Regina time to reply to any such orders. Reply means service and filing of all such reply documents by December 11, 2009, at 4:00 p.m. Regina time. J. T. J. Keene

Counsel for the plaintiffs brings two notices of motion seeking 1) the opportunity to cross-examine a deponent on her affidavit and 2) an order to compel one of defendants to supply pre-certification notices to all persons who may be eligible to participate in the class action that is contemplated. HELD: The motions are dismissed with no order as to costs. 1) One of defendants contends that 7 people alleged by the plaintiffs to be viable class members have already entered into a full and final settlement with the defendant. This defendant earlier sought to examine these individuals. The Justice of this action at that time did not allow the examination but instead made an order permitting the defendant to file affidavits on the issue. This is the source of the affidavit the plaintiff seeks cross-examination on. The order also allowed the plaintiffs to file reply affidavits, which they chose not to do. There is nothing in the original order that could be interpreted as saying that the plaintiffs could cross-examine on the affidavit. In the view of the Court, having chosen not to file reply affidavits pursuant to the original order, it is not reasonable for plaintiff's counsel to embark on a totally different approach several weeks after the deadline has passed. There is also some concern that the actual purpose of the proposed cross-examination would be more general and broad-ranging than a mere challenge to the defendant's assertion that the individuals at issue have already entered into full and final settlements with the defendant. 2) In its barest sense, plaintiffs' counsel requests that the defendant supply a plaintiff by way of sending pre-certification notices to its clients. The Court is aware of Lewis v. Shell, where an Ontario court ordered notice to potential class members. However, that case is not similar to this case. In the Lewis case, the Court was faced with concern over the defendant contacting individuals who might be potential class members for the purpose of obtaining early settlements. Moreover, the Ontario class actions legislation is less restrictive than Saskatchewan's. The section of the Class Action Act which may permit such an order refer to a 'class action,' not an 'action.' As this case is still in the pre-certification stage, it is not yet a class action within the meaning of the Act. Spavier v. Canada also indicates that pre-certification motions of this sort would rarely be successful in this jurisdiction.

d_2009skqb517.txt

nan IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2016 SKPC 030 Date: February 29, 2016 Information: 24507055 Location: Saskatoon Between: Her Majesty the Queen and Janine Fellner Appearing: R. Wempe For the Crown B. Pfefferle For the Accused JUDGMENT M.L. GRAY, [1] The accused entered guilty plea to one count of driving motor vehicle while her blood alcohol content was over 80 milligrams of alcohol in 100 millilitres of blood and now asks to be granted curative discharge pursuant to s. 255(5) of the Criminal Code. The Court has been provided the following information in support of her application: (i) an Affidavit of Janine Fellner; (ii) her Criminal Record; (iii) discharge summary from the Leipzig Serenity Retreat; (iv) Prosecutor Information Sheet setting out the circumstances of the offence before the Court; and (v) viva voce evidence from the accused, Larry Foster, Brenda Hearn and Angela Fellner. [2] The circumstances of the offence to which Ms. Fellner has entered guilty plea are straight- forward and undisputed. Shortly after 1:00 p.m. on April 25, 2014, the police received complaint about vehicle that was travelling in excess of the speed limit and overtaking vehicles when it was unsafe to do so. At one point, it ran off the road into the ditch and then continued north bound on the highway. police officer was able to stop the vehicle and speak to the accused who was the driver. He noted that she appeared nervous, used words in an odd order and handed him memorial card for her grandfather when asked for her vehicle registration. He also noted smell of beverage alcohol that was somewhat masked by the odour of mouth wash. The accused complied with demand that she provide sample of her breath into roadside device and, when that resulted in fail, she also complied with demand that she provide sample of her breath pursuant to s. 254(3) of the Criminal Code. Those tests resulted in two readings of .29. The officer expressed shock at those readings as the accused’s speech was clear and her walking gait appeared normal. The accused admitted to the officer that she has been an alcoholic for many years and lived daily under the influence of alcohol. [3] Ms. Fellner testified that she has consumed alcohol since she was 15 or 16 years old. Until she was in her 20's her drinking pattern may have been considered excessive, but was primarily social. She would drink from Friday to Sunday, usually with the objective of getting drunk and often to the point of blacking out. In her mid 20's, she continued this pattern but also began to drink alone one or two times month. By the time she was in her late 20's, her drinking increased and she was drinking alone about five times week and would consume two bottles of wine in sitting. In 2006, at the age of 26, she was convicted of driving while over the legal limit. In 2010, she returned to Saskatchewan to be near her family but she continued to drink heavily. She was convicted and imprisoned that year for another drinking and driving offence; her sentence was served at the Impaired Driver Treatment Centre. She remained sober for only few months before resuming old habits. After her arrest in April 2014, her consumption escalated; she was drinking daily with periodic binges. In those binge times, she would consume 40 ounce bottle of liquor and two bottles of wine daily for three or four days. Throughout the years, she was able to maintain her employment but occasionally did miss work as result of her alcohol consumption. [4] In June 2014, she was admitted to Larson House for detoxification but, on discharge, immediately went back to drinking. In August, she described having “a moment of clarity” when she realized that she would either have to quit drinking or die. As result, she admitted herself into treatment the next day, August 19, 2014. She completed one week of detoxification followed by five weeks of intensive treatment at the Leipzig Serenity Retreat. She sold her home to fund this treatment. [5] Upon discharge, she was given number of guidelines intended to assist her in maintaining sobriety, including regular attendance at Alcoholics Anonymous (AA). She now works in Regina to be near supportive family and friends, attends two or three AA meetings week, meets with group to work through the AA steps and has made friends who are also in recovery. At the time of the application, she had been sober for approximately 572 days and accepts that she can never drink alcohol again. [6] Angela Fellner, sister-in-law and long time friend of the accused, confirmed some of the above evidence with respect to the drinking habits of the accused. She also testified to the changes that the accused has made in the last 18 months and noted that she is now very open about her addiction. She confirmed that the accused has re-established connections with family members rather than isolating herself as she had been prone to do in the past. [7] Larry Foster retired in October 2015 from his position as an addiction counsellor at Leipzig. He is recovering alcoholic who has been sober since 1985. He has daily post on Facebook related to alcoholism recovery. He came to know the accused as client at the Leipzig centre where she was involved in very in-depth 12-Step Program, as well as the emotional health program offered there. Since her discharge, he has met with her personally on four or five occasions and noted that she responds to his posts on Facebook almost daily. [8] Brenda Hearn has been chemical dependance counsellor and consultant since 2008; it was agreed that she was qualified to express opinion evidence with respect to alcohol addiction, treatment and counselling. She has not seen the accused on professional basis, but did listen to her testimony. Ms. Hearn described detoxification as serving the narrow function of physical stabilization as individuals often feel ill as they withdraw from regular use of alcohol. Detoxification is necessary to enable individuals to focus on subsequent treatment. She is familiar with the programs offered at the Leipzig Serenity Retreat and with the tenets of the 12-steps program espoused by Alcoholics Anonymous. She frequently refers individuals to AA as it provides “community of like minded people prepared to support each other in similar goals”. She views this as vital to any recovery. In her opinion, Ms. Fellner will never be able to consume alcohol socially without risk of relapse. Further, it was her view that the manner in which the accused spoke of her involvement in AA suggests that she is immersed in and committed to her treatment regimen. [9] When asked about the recovery time for alcoholism, Ms. Hearn opined that physical recovery of the brain can occur in about 24 months from the onset of sobriety. After five or six years of sobriety, some would say recovery is complete; she suggests that this is late stage or long term recovery which still requires that person continue with the maintenance tasks to maintain sobriety. In her experience, there can be rapid return to stage of denial and attendance at AA meetings serves as reminder of what brought one to treatment. There is no scientific way to predict relapse, but continued attendance at AA will assist in identifying the triggers that cause individuals to turn to alcohol. She characterized 572 days of sobriety as “a good start” and suggested that the accused should continue attending AA two to three times week for the next year at minimum. Ideally, the accused should attend two to three meetings week for the next three years. She was also of the view that continued contact with professional addictions counsellor is necessary to ensure any signs of relapse are recognized. [10] listened closely to all of the evidence and have since taken the time to review and consider all of the evidence and exhibits, the able arguments of counsel, the decision of the Saskatchewan Court of Appeal in Ahenakew 2005 SKCA 93 (CanLII) [Ahenakew] as well as the other cases to which reference is made in this decision. These cases illustrate that our Courts are too frequently called upon to deal with the aftermath of drunk drivers. As Justice Cory so graphically stated in Bernshaw, 1995 CanLII 150 (SCC), [1995] SCR 254 at para 16: Every year drunk driving leaves terrible trail of death, injury, heartbreak and destruction. From the point of view of numbers alone, it has far greater impact on Canadian society than any other crime. In terms of death and serious injuries resulting in hospitalization drunk driving is clearly the crime which causes the most significant social loss to the country. [11] Sadly, in spite of an increasing recognition in society of the perils of drinking and driving, the number of people who offend in this manner is increasing in Saskatchewan. Nonetheless, there is also concurrent recognition that increased penalties for drinking and driving are not always the appropriate way to deal with the problem. Accordingly, Parliament has granted to the Courts, in s. 255(5) of the Criminal Code, discretion to grant curative discharge to an offender if: (i) the accused is in need of curative treatment regarding his or her alcohol consumption; and (ii) curative discharge would not be contrary to the public interest. [12] The onus lies with the applicant to establish these factors on balance of probabilities. In the words of Griffins JA, in Ashberry (Mills), (1989) 1989 CanLII 7230 (ON CA), 47 CCC (3d) 138 (Ont CA) [Ashberry], at page 161, the onus lies with the applicant to establish that particular case is “...sufficiently exceptional to warrant recourse to the curative/conditional discharge provision of the Code ...” [13] The Saskatchewan Court of Appeal in Ahenakew adopted the non-exhaustive list of factors referred to by the Ontario Court of Appeal in Ashberry in determining whether case is “sufficiently exceptional” to merit discharge. Those factors are: (i) the circumstances of the offence and whether an accident, death or serious bodily harm was involved; (ii) the motivation of the offender and its relation to the probable benefits of treatment; (iii) the availability and calibre of the proposed treatment facilities and the ability of the offender to complete the programming; (iv) the probability of the success of the offender and the likelihood that he or she will ever drive again while under the influence of alcohol; and (v) the prior criminal record as measure of risk of recidivism posed by the particular offender. [14] In the case at hand, the evidence is clear that this accused is in need of treatment to deal with her alcohol consumption and addiction. The main question is whether it would be contrary to the public interest to grant discharge in her particular circumstances. Although the offence before the court did not involve an accident, death or serious personal injury, it is always grave situation when an individual, having consumed as much alcohol as this accused did, operates vehicle on public road at highway speeds and places others in jeopardy. In this instance, it was only fate, the grace of God or the quick wit of others that prevented an accident, death or serious injury; it certainly had nothing to do with the actions or decisions of the accused. On the other hand, there is no question that this accused is highly motivated to overcome or control her addiction and that for approximately 18 months has greatly benefited from treatment. Her actions in selling her home to pay for in-patient treatment, moving to another city and taking lower paying job in order to be near the support system that she needs, as well as her dedication to the AA program speaks volumes about her motivation and the success of the treatment on which she has embarked. That success speaks not only to her dedication but to the efficacy of the treatment facility and program that she has chosen. Further, the probability of her continued abstinence, according to Ms. Hearn, is closely related to the connections that she has established in the treatment community and in her personal life. conclude that she now has the support of number of individuals, in large part, because of her honesty and candour about her problem and her need for help in dealing with it. This bodes well for her long term success according to the professional opinion of Ms. Hearn; in turn, her continued success increases the probability that she will never drink and drive again. [15] The greatest concern for the Court centres on the fact that this accused has two prior convictions for identical offences and has, in fact, been through the program for drinking drivers offered at the Impaired Driver Treatment Centre in 2010. After her first conviction in 2006, it appears that her pattern of drinking remained unchanged and criminal conviction, fine and licence suspension did nothing to deter her conduct or address her addiction. Similarly, second conviction, which resulted in custodial sentence and programming, did nothing to deter her from offending. prior record, however, does not preclude the granting of curative discharge: see Redding, [2009] SJ No 134, Mostoway, 2012] SJ No 165, Almassey, [2013] SJ No 26 but it does place somewhat greater burden on an accused to satisfy the Court that his or her case is an exceptional one: see Ahenakew at para 46. [16] Although it can never be said with certainty that Ms. Fellner will not drink and drive again, her conduct over the last 18 months suggests that it is probable she will not. I am satisfied, on a balance of probabilities, that Ms. Fellner has shown that hers is the exceptional case contemplated in Ashberry and Ahenakew and that a curative discharge would not be contrary to the public interest. It is my view that, in this case, curative discharge will better serve the public interest than would the imposition of fine or custodial sentence. Ms. Fellner has demonstrated sincere commitment to change as demonstrated by 18 months of sobriety and the course of treatment in which she engaged; this bodes well for her continued sobriety. It is her adherence to her treatment program that will best provide public protection and thus, best serve the community interests. [17] In conclusion, the Court is satisfied that Ms. Fellner has met the onus placed on her in this application and she will be granted a curative discharge. accept the evidence of Ms. Hearn that Ms. Fellner has made “good start” and that conditions should be imposed for period of three years. In addition to the statutory conditions, those conditions are that Ms. Fellner:(i) report forthwith, and no later than 4 p.m. March 1, 2016 to a probation officer and thereafter at the times and places directed by the probation officer;(ii) reside at a residence approved by the Probation Officer and not change that address without the permission of the Probation Officer;(iii) make and maintain any appointments with an addictions counsellor as directed by the Probation Officer;(iv) participate in any addictions assessment, programming or education, including in-patient and out-patient treatment, as directed by the Probation Officer and not give cause to be dismissed from any treatment program to which referred;(v) provide proof of attendance at appointments or treatment as requested by the Probation Officer;(vi) attend and participate in Alcoholics Anonymous meetings on a regular basis and no less than twice per week except with prior permission of your Probation Officer;(vii) provide your consent to AA to release proof of attendance at AA meetings;(viii) at the direction and request of the probation officer provide proof of attendance at AA meetings;(viii) not to have, possess, keep or consume alcohol or enter any licenced premises where the main purpose is the sale or consumption of alcohol;(x) submit, on demand of a peace officer, without reasonable grounds, to supply a breath sample in order to determine compliance with this order; and(xi) attend and participate in any personal counselling including psychological or psychiatric treatment as directed by the Probation Officer. [18] Further, given her two prior convictions for drinking and driving, Ms. Fellner’s driver’s licence is immediately cancelled and she is prohibited from operating any motor vehicle on any street, road, highway or other public place anywhere in Canada for a period of two (2) years, commencing today. [19] surcharge of $100.00 is also ordered to be paid on or before June 30, 2016.

HELD: The accused was granted a curative discharge. The court found that the accused had met the required onus of this type of application in accordance with R. v. Ahenakew. The accused’s conduct over the past 18 months satisfied the court on the balance of probabilities that hers was an exceptional case and that a curative discharge would not be contrary to the public interest. The court imposed numerous conditions on her, including that she could not have or consume alcohol and should report to a probation officer, receive addiction counselling, participate in AA meetings and provide proof of her attendance to her probation officer. Her driver’s license was cancelled and she was prohibited from driving for two years.

e_2016skpc30.txt

J. IN THE SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: Faddoul v. Faddoul, 2005 NSSF 21 Date: 20050331 Docket: SFHD-020922; 1201-057308 Registry: Halifax Between: George Faddoul v. Ellen Faddoul Respondent Judge: The Honourable Justice Kevin Coady Heard: June 14, 15, 16, 17, 2004 September 28, 29, 2004 October 18, 2004 December 9, 16, 21, 2004 in Halifax, Nova Scotia Counsel: Robert Ritchie Wheeler, for the Petitioner D. Timothy Gabriel, for the Respondent [1] George and Ellen Faddoul were married on August 19, 1990 in Lebanon after brief relationship. Ms. Faddoul was then Canadian citizen and Mr. Faddoul was citizen of Lebanon. Ms. Faddoul’s parents and family were extensively involved in the Halifax residential housing business and enjoyed considerable financial success. Ms. Faddoul, as well as members of her family, travelled to Lebanon in 1990 for the purpose of nurturing the relationship between the parties. The parties returned to Canada in 1991 and have resided in Halifax since that time. [2] There are three (3) children of this marriage; namely 12-year-old Georgina, 11-year-old Samantha and 9-year-old Caroline. The girls have been residing with Ms. Faddoul since separation and Mr. Faddoul has been exercising regular access. [3] On December 16, 2002 an Interim Application was heard in chambers by Justice Tidman and as result the following Interim Order issued: George and Ellen share joint custody of the three children. Primary care of the children to be with Ellen Faddoul. Ellen Faddoul to have exclusive possession of the matrimonial home. George Faddoul to have access on specific terms. Income was imputed to George Faddoul, for the purpose of child support, in the amount of $34,800 per annum. George Faddoul to pay basic guideline support for the children in the amount of $650 monthly, effective December 31, 2002. No spousal support ordered. [4] George and Ellen Faddoul have grown further apart since separation. That acrimony is also evident as between Mr. Faddoul and Ms. Faddoul’s family. The Metledge family have been critical factor in the parties personal and financial affairs since Mr. Faddoul moved to Canada in 1991. Since separation they have been very supportive of Ms. Faddoul. They support her positions in this divorce especially on issues of property division. [5] This proceeding involves two (2) primary areas of dispute. The first involves issues of custody, access, child and spousal support. The second relates to classification, valuation and division of several pieces of property. will deal with the less contentious Divorce Act issues first. [6] Divorce: Divorce Order was issued on June 14, 2004 on the basis of one (1) year separation. was satisfied that all statutory requirements were met and there was no possibility of reconciliation. [7] Custody: The parties agree that a Joint Custody Order shall issue and that primary care shall remain with Ms. Faddoul. find that the children’s best interests are served by remaining in the matrimonial home with their mother. [8] Mr. Faddoul wants meaningful consultation and input into major decisions respecting the upbringing and activities of the children. Ms. Faddoul is prepared to consult but wants the final say when they cannot agree. find that meaningful consultation is unlikely at least in the foreseeable future. [9] I make the following Order:- The parties shall share joint custody of the three (3) children. - Day-to-day primary care shall be with Ellen Faddoul. Ellen Faddoul shall consult with George Faddoul on all major issues affecting the children’s educational, medical, religious and cultural development and upbringing. - In the event that these parents cannot agree after meaningful consultation, the final decision will be made by Ellen Faddoul. George Faddoul will be kept advised of all information respecting the children in prompt way. He will be authorized to make direct inquiries of the children’s teachers, physicians, clergy or any other caregiver. [10] have given Ellen Faddoul the final word in the face of disagreement. do so because she is the primary care parent and because this couple cannot effectively communicate on these kinds of issues. [11] Access: The parties are generally in agreement as to the terms of Mr. Faddoul’s access. They disagree on the times of Sunday access when Mr. Faddoul has the children for the weekend. Mr. Faddoul wants the children to remain with him until Sunday evening. Ms. Faddoul wants them returned early Sunday morning so that they can participate in Sunday School, Mass and lunch with her and her extended family. will set forth the agreed terms first: Periodic access shall be based on two (2) week schedule. On week one (1) Mr. Faddoul shall access his daughters on Monday and Thursday from after school until 6:00 p.m On week two (2) Mr. Faddoul shall access his daughters on Monday from after school until 6:00 p.m. and from Friday after school until Sunday at time to be determined. March school breaks shall be shared equally. Mr. Faddoul shall have two (2) weeks of block access each summer and must give Ms. Faddoul notice of the dates by May 1st. Ms. Faddoul shall have the children for two (2) weeks each summer and must give Mr. Faddoul notice of the dates by May 15th. Periodic access by Mr. Faddoul shall be suspended during this period of time. Christmas access shall alternate from year to year. On even-numbered years the children will be with Mr. Faddoul from December 24th at noon until December 25th at 2:00 p.m. In odd-numbered years the children will be with Ms. Faddoul from December 24th at noon until December 25th at 2:00 p.m. Regular access shall occur for the balance of the Christmas school break. The children shall spend Father’s Day with Mr. Faddoul. The children shall spend Mother’s Day with Ms. Faddoul. [12] have decided that Mr. Faddoul’s access to the children every second weekend should include Sunday until 6:00 p.m. On long weekends, with Monday holiday, the children shall remain with their father until 6:00 p.m. on Monday. One reason for this decision is that it involves every second weekend. The other reason is to maintain Mr. Faddoul’s presence in the lives of these children. have concluded that Ms. Faddoul is not committed to maintaining the children’s relationship with their father. [13] Ms. Faddoul testified that the children spending time with her family is more important than spending time with their father. She was not prepared to admit, when pushed, that the children loved their father or that Mr. Faddoul loved them. She stated that the children’s relationship with their father was not much different than with cousin or grandparent. She testified that she made the decisions and then told Mr. Faddoul what was going to happen. It was very clear that Ms. Faddoul views her husband as someone who has outlived his usefulness to her, the children and the extended Metledge family. find as fact that she believes in these opinions and acts in their furtherance. [14] Ellen Faddoul has requested that an Order issue allowing her to travel outside of Canada with the children without consulting Mr. Faddoul. She seeks authorization to obtain passports for the children without Mr. Faddoul’s involvement. She also wants an order prohibiting Mr. Faddoul from leaving Canada with the children. [15] There is no evidence that these parents pose flight risk to the children. Both are firmly settled into their local community. [16] will order that both parents cooperate in obtaining passports for the children. They are both required to give the other 30 days written notice of any intention to travel outside the country with any or all of the children. This will allow sufficient time to take legal action if either parent feel such action is warranted. [17] Child Support: The 2002 interim chambers Judge imputed income to Mr. Faddoul in the amount of $34,800 and set basic guideline support at $650 per month. Justice Tidman expressly stated in the order “and upon appearing that the respondent George Y. Faddoul has provided insufficient particulars as to his income and the income and expenses of the two companies controlled by him.” Since that time there has been substantial further disclosure. [18] The evidence of both parents disclosed wide discrepancy between their stated personal annual income and their standard of living. have concluded that the parties are very astute in minimizing their income tax exposure. This is not to suggest anything fraudulent. It is recognition that this families quality of life is not accurately reflected by their tax documents or their sworn statements of financial information. [19] George Faddoul’s most recent statement of financial information was sworn on March 4, 2004. He advances under salary an income of $18,373 per annum. He advances under business income further $5,443 for total annual income of $23,816. He shows no expenses for housing, property taxes, general insurance, utilities or vehicle costs. The evidence, as whole, disclosed that these expenses are being paid by the family businesses. [20] Ellen Faddoul’s most recent statement of financial information was sworn on March 19, 2004. She shows total income before tax of $21,837 per annum. The evidence, as whole, disclosed that Ms. Faddoul enjoys considerable financial support from her family. [21] It is apparent to me that Mr. Faddoul expenses many of his personal costs through his businesses. The parties disagree on the value of those benefits. am only concerned about them for the purpose of determining child support. have considered the position of both parties on value and accept Ms. Faddoul’s figures as the most accurate. Mr. Faddoul did not prove to be credible when it came to values. He admitted preparing different financial reports for different purposes i.e. income tax or to obtain mortgage. also find that Ms. Faddoul acquiesced in expensing personal costs through their businesses. This was the way this family did business prior to separation. [22] Mr. Faddoul’s statement of financial information indicates an annual income of $23,816. His accommodations and utilities are paid by Bazoun Enterprises Ltd. set those expenses at $560 per month and have grossed up that figure by 30% for an annual benefit of $9,204. Bazoun also pays for Mr. Faddoul’s vehicle and all costs of operation and maintenance. value that benefit at $12,594 and have added 30% for an annual benefit of $16,372. also attribute further $6,556 as income from Mr. Faddoul’s business activities. set Mr. Faddoul’s income for child support purposes at $55,948. [23] This income level is also supported by Revenue Canada’s re-assessment which was in evidence. The gross up of 30% was put forward by Ms. Faddoul and not disputed by Mr. Faddoul. [24] order that Mr. Faddoul pay Ms. Faddoul $986 per month in basic guideline support for the three children of the marriage. [25] have attributed an additional $32,132 income to Mr. Faddoul. Section 19 of the Federal Child Support Guidelines sets forth menu of circumstances which support imputation of income. have not found that any of the enumerated circumstances apply precisely to Mr. Faddoul’s situation. However, Section 19 states “the court may impute such an amount of income to spouse as it considers appropriate in the circumstances, which circumstances include the following”. This indicates that the list is not exhaustive. The facts of this case clearly establish basis to impute this income to Mr. Faddoul. It is exactly these types of benefits that Section 19 is intended to capture. The object of the Guidelines is to establish the fairest determination of annual income. [26] also find that Section 18 of the Federal Child Support Guidelines establish basis upon which to impute this income to Mr. Faddoul. In essence, find that Section 16 determination does not fairly reflect all the money available for the payment of child support. [27] Section Expenses: There was very little evidence devoted to Section “special or extraordinary expenses”. Ellen Faddoul brought forth $4,900 estimate for orthodontic work for Georgina. Ms. Faddoul also gave limited evidence in relation to piano lessons ($900 per year), soccer ($200 per year), tennis ($200 per year), horseback riding ($200 per year) and musical instruments ($850 per year) for her children. [28] The orthodontist bill is clearly covered by Section 7(1)(c). The family do not have dental plan. Consequently the entirety of this expense must be made by both parents. While this expense had not been incurred at the time of the trial, there was no question but that it is necessary and imminent. [29] The other items/activities are clearly extracurricular as defined in Raftus v. Raftus, 1998 CanLII 6139 (NS CA), [1998] N.S.J. No. 119 and can only be caught as extraordinary by Section (1)(d) or Section (1)(f) of the Guidelines. do not find that they fit under subsection (d) as they are more extracurricular than educational. [30] Raftus v. Raftus sets forth the approach to claim under Section (1)(f) of the Guidelines. Flinn J.A. stated: When trial judge considers an application, pursuant to s.7(1)(f) of the Guidelines, several issues may arise: 1. Any order for payment of all, or portion, of such expenses is discretionary. An applicant is not, on establishing certain criteria, entitled to an order. As in all cases of the exercise of discretion, circumstances will dictate whether it is exercised one way or the other. 2. The Court must decide if the expenses which are the subject of the application are “extraordinary expenses for extracurricular activities”. If they are not, the inquiry ends. There is no definition of “extraordinary expenses for extracurricular activities” in the Guidelines. will say more about this later. 3. If the expenses are extraordinary expenses for extracurricular activities, then, pursuant to s. 7(1), the Court may provide an amount to cover those expenses, after taking into account: (a) the necessity of the expense, in relation to the child’s best interest, and (b) the reasonableness of the expense, having regard to the means of the spouses, and those of the child, and to the family’s spending pattern prior to the separation. 4. If the expenses are extraordinary expenses for extracurricular activities, and if those expenses are necessary and reasonable, then in determining an amount which is required to be contributed, the guiding principle is that the expense is shared by the spouses in proportion to their respective incomes. In coming to this conclusion the Court considers the contribution, if any, from the child; and the Court takes into account any subsidies, benefits or income tax deductions or credits relating to the expense. [31] In applying this approach, I find that the piano lessons and musical instruments are extraordinary expenses for extracurricular activities and are necessary and reasonable. I do not include the soccer, tennis or horseback riding in this category. They are extracurricular but are included in the basic child support order. [32] Given the standard of living enjoyed by Ms. Faddoul, am exercising my discretion in ordering that the parents share these expenses equally. have considered Section 7(2) of the Guidelines in arriving at this decision. [33] It is apparent to me that the children will have the opportunity to become involved in many activities in the future. Some will be appropriate Section expenses and some will not. In the event that Ms. Faddoul is seeking contribution from Mr. Faddoul, she must give him notice of the activity and the cost. [34] Spousal Support. Spousal support is requested by Ms. Faddoul. She does not seek periodic support but rather a lump sum payment to cover her tuition at the Atlantic School of Theology. The cost is approximately $6,000 per annum for three (3) years. Ms. Faddoul’s position is that she always wanted to study divinity and that Mr. Faddoul should pay these fees. On the other hand, she testified that she will forfeit this claim if she is awarded Bazoun Enterprises Limited. [35] Mr. Faddoul is opposed to the payment of spousal support in any form. He argues that he does not earn enough to pay such an expense and that Ms. Faddoul does not need support. He argues that Ms. Faddoul has college degree, extensive financial support from her parents and knows how to make money on her own. [36] This is not case that calls for spousal support, either periodic or lump sum. There is no basis for entitlement. have considered the “condition, means, needs and other circumstances” of both spouses. am satisfied that Ms. Faddoul’s financial future is brighter than that of Mr. Faddoul. have considered this analysis from both pre-separation perspective and from the perspective of this couple’s property division. [37] have carefully considered the objectives of spousal support set forth in Section 15.2(6) of the Divorce Act. conclude that Ms. Faddoul has not suffered any economic disadvantage arising from the breakdown of this marriage. also conclude that she has not suffered any economic hardship as result of the breakdown of this marriage. find that Ms. Faddoul is economically self sufficient and has been since separation. [38] The Divorce Act does not provide specific factors court must take into account when deciding whether or not to make lump sum award. Consequently it is matter of judicial discretion. I see no reason to order this relief given the overall circumstances of the parties. have concluded that awarding lump sum spousal support in this situation would amount to an indirect division of property. [39] In her evidence, Ms. Faddoul stated that she was prepared to assume responsibility for the businesses. This in itself supports my conclusions that Ms. Faddoul did not suffer any economic disadvantage or hardship as result of the breakdown of the marriage. [40] Property Division: The parties have an interest in several pieces of real property. They disagree on classification (matrimonial or business asset) and valuation. Accordingly, it is necessary to review each property and the manner of acquisition. [41] 70 Sinclair Street, Dartmouth: This is the matrimonial home. Ms. Faddoul and the children have resided there since separation. She wishes to retain this property as the family home and Mr. Faddoul does not object to such disposition. The home was bought in July 1999 for $105,000. It was financed by way of mortgage on the “motel” property and some funding from Bazoun Enterprises Limited. It was released as security for that mortgage in 2000 and since then has been unencumbered. Mr. Faddoul’s appraisal, as of July 23, 2003 is $155,000. Ms. Faddoul’s appraisal as of June 3, 2004 is $145,000. [42] The matrimonial home is clearly a matrimonial asset and must be divided equally. It is agreed that Ms. Faddoul will retain this asset. There is $10,000 difference in valuation. do not accept this modern home has decreased in value over this eleven month term. The evidence of “necessary repairs” advanced by Ms. Faddoul is not sufficient to move away from the appraisals. Consequently am valuing this property at $150,000 for the purposes of these proceedings. [43] deduct 6% real estate commission ($9,000), HST ($1,350), and legal fees ($750) leaving net value of $138,900. [44] 3445-51 Rowe Avenue: This is rental property consisting of four (4) rental units. Ms. Faddoul’s father acquired the property in 1989. It was his intention to provide gift/business opportunity to Ms. Faddoul as he had acted similarly towards his other children. Mr. Metledge conveyed this property to Ellen Faddoul on December 6, 1991. She assumed mortgage of approximately $210,000. This property, and the mortgage, is in Ms. Faddoul’s name only. find as fact that since 1991 this property has been regularly rented with the proceeds going to the mortgage and into the couple’s joint account. [45] Ms. Faddoul takes the position that this is business asset. She argues that Mr. Faddoul has no interest but if he does, it is pursuant to Section 18 of the Matrimonial Property Act. She further argues that any such contributory interest is “slight”. She denies that Mr. Faddoul has done much on the property and that anything he did was pursuant to his employment relationship with Mr. Metledge. [46] Mr. Faddoul argues that this property is matrimonial asset and, therefore, enjoys the presumption of equal division. He testified that this property was operated from joint family account and that they have always treated it as family asset. Mr. Faddoul testified that he did most of the work on the property throughout the marriage. He claims to having changed the heating system, provided all maintenance, acted as book keeper, rented the apartments and attended Tenancy Board Hearings. In support of his evidence he tendered cheques in his name, leases in his name, notices to quit in his name and many invoices directed to his name. [47] I find as a fact that Mr. Faddoul has been extensively involved in the operation of the property since marriage and that the couple considered this property to be a joint business operated for the benefit of the family. [48] Mr. Faddoul’s appraisal came in at $400,000 as of August 6, 2003. Ms. Faddoul’s appraisal came in at $370,000 as of April 3, 2004. The mortgage balance at the date of separation was $127,507. Ms. Faddoul wishes to maintain this property. [49] find that this property was acquired by Ms. Faddoul after her marriage and is, therefore, presumptively matrimonial asset as defined by Section 4(1) of the Matrimonial Property Act. In order to accept Ms. Faddoul’s argument that it is not matrimonial asset, would have to find the property to be gift/inheritance or business asset. [50] I find that initially this property was a gift to Ms. Faddoul from her parents, albeit an encumbered gift. I further find that it became a matrimonial asset during the marriage because it was used for the benefits of both spouses and the children. It therefore qualifies for the exception in Section 4(1)(a) “except to the extent to which they are used for the benefit of both spouses or their children”. These parents operated this property jointly with Mr. Faddoul being the contact person with tenants, contractors, suppliers and the like. find that Ms. Faddoul treated this property as theirs until the breakdown of the marriage. [51] also do not find this property to be “business asset” as defined by Section 2(a) of the Matrimonial Property Act. The couple operated this building as family venture. Ms. Faddoul never took any steps to prevent this property from being family venture. Consequently find this property to be matrimonial asset. order an equal division and that Ms. Faddoul will retain this property. find no basis for an unequal division as listed in Section 13 of the Act. [52] Even if were to accept that this was business asset, and do not, would divide the asset equally pursuant to Section 18 of the Matrimonial Property Act. [53] The evidence of value in relation to this property covers several dates. The appraisals are dated August 6, 2003 and April 3, 2004. The mortgage balance is as of August, 2002, the date of separation. have adopted the approach set forth in Simmonds v. Simmonds, 2001 CanLII 4617 (NS SF), [2001] N.S.J. No. 276: The Matrimonial Property Act, S.N.S., 1980, c.9 (the “Act”) does not specify date for valuation. This is left to the discretion of the trial judge. The case law in this province suggests that such discretion is positive thing so that fair and equitable result can be obtained on case by case basis. The Act is based on the principle of fundamental fairness in the division of assets. In an unreported case of MacDonald v. MacDonald, [1991] N.S.J. No. 639, August 23, 1991, Judge Daley of the Family Court in his capacity as referee stated: “The key in valuating the matrimonial property is an orderly and equitable settlement of the spousal affairs, and whatever the date has to be to accomplish this purpose, it is the proper date.” The Nova Scotia Court of Appeal in the case of Lynk v. Lynk (1989), 92 N.S.R. (2d) held that the date of commencement of the proceedings “which may be varied at trial in accord with the evidence” is the appropriate date for valuation. [54] lack confidence in both appraisals given they indicate considerable decrease in value over nine (9) months. feel have no alternative but to split the difference and set the value at $385,000 for division purposes. All revenues since separation have gone to Ms. Faddoul so accept the separation date value of the mortgage. [55] am deducting real estate commission of 6% ($23,100), HST ($3,465), legal fees ($1,500) and the mortgage balance ($127,507). set the net value at $229,428. [56] 2559 Prospect Road: This is a rental property held by a numbered company solely owned by Mr. Faddoul. It was purchased in February 1994 by Mr. Faddoul and his brother-in-law Stephen Metledge Jr. for $105,000. Mr. Metledge Sr. Provided the financing. One year later mortgage for $150,000 was negotiated. Mr. Faddoul paid out Mr. Metledge Sr.’s investment and bought out Mr. Metledge Jr.’s interest in the company. George Faddoul testified that for the past ten years he solely managed the property. He limits Ms. Faddoul’s contribution to few phone calls and the occasional rent collection. He takes the position that this is business asset and as such Ms. Faddoul has no interest. However, in argument he agreed that Ms. Faddoul should receive $15,000 for her contribution to this business asset. [57] Ms. Faddoul’s position is that this was to be an investment on behalf of her, Mr. Faddoul and Mr. Metledge Jr. She claims that she was not included in the numbered company because she was ill at the time and not paying attention. She contends she contributed to the property by buying appliances, showing units and hiring painters and carpet cleaners. She testified to visiting the property one-half dozen times. She seeks an equal division of this property whatever the characterization. [58] Mr. Faddoul’s appraisal valued this property at $285,000 as of September 12, 2003. Ms. Faddoul did not obtain an independent appraisal and accepts this valuation. The parties agree that for the purpose of these proceedings the mortgage payout will be $97,000. [59] This property must be treated in the same way as the Rowe Avenue property. It was initially acquired by company controlled by the parties and Mr. Metledge Jr. Their company (Metledge and Faddoul Developments Limited) developed number of building lots and the proceeds went back into the business. The initial company properties were acquired with the assistance of Ms. Faddoul’s family. When this company became a numbered company, and Mr. Metledge Jr. was bought out, Ms. Faddoul was left off the documentation. I find as a fact that Ms. Faddoul considered herself as a partner in this venture. The developments of 2559 Prospect Road would not have been possible without the involvement of Ms. Faddoul and her family. [60] I find that this property is a matrimonial asset and that it will be divided equally. Mr. Faddoul shall retain the property as he has the most involvement in the development and day-to-day management of this asset. [61] The parties agree that the value of this property for division purposes will be $285,000. They also agree that the mortgage payout will be $97,000. will deduct 6% real estate commission ($17,100), HST ($2,565), legal fees ($1,500) and the mortgage ($97,000). The net value of this property is set at $166,835. [62] 317 Prince Albert Road: (Express Lodge) This is multi-unit motel property. Mr. Faddoul has resided at, and managed this property since separation. The evidence discloses that prior to separation, both parties operated this business. It was home to the Faddoul family for years. [63] This property was acquired in 1992 for $250,000 by Mr. Faddoul and Mr. Metledge Sr. Mr. Metledge felt it would be good business for George and Ellen. He provided the $60,000 down payment and arranged mortgage for the balance. Initially the property was in the name of numbered company. It was later conveyed to Bazoun Enterprises Limited, company in which the Faddoul’s are equal shareholders. [64] In 1997 the property was improved and new mortgage was negotiated and Mr. Metledge Sr.’s financial interests were extinguished. Both parties would like to retain this property. Ms. Faddoul states that Mr. Metledge Sr. is prepared to fund this buyout. Mr. Faddoul feels he can arrange financing to buy out Ms. Faddoul. [65] The distinction between matrimonial and business asset is not that critical given that the parties hold an equal interest in the company. [66] Mr. Faddoul’s appraisal valued this property at $490,000 as of May 23, 2003, less the cost of some roof repairs. [67] Ms. Faddoul did not commission an appraisal. In 2000 Mr. Faddoul’s appraiser valued the property at $695,000 for mortgage purposes. The evidence disclosed that in 1999 neighbouring hotel owner offered $625,000. The Faddouls refused to close feeling the price was too low and the matter resulted in litigation. In September, 2004 the same individual made an offer of $600,000 that was not accepted by Mr. Faddoul. Ms. Faddoul is prepared to buy out Mr. Faddoul accepting $600,000 value. [68] The mortgage payout as of August, 2002 was $326,897. It was approximately $308,000 of November 1, 2003. [69] This property is owned by Bazoun Enterprises Limited, company owned equally by Ellen and George Faddoul. The only company asset is the Express Lodge. It is not necessary to classify this company as matrimonial or business given the corporate structure and both parties extensive involvement over 10 years. The parties are entitled to an equal division. [70] order that Mr. Faddoul retain this asset. [71] The value of this property for division purposes is very much in issue. have no confidence in the $490,000 figure put forth by Mr. Faddoul. The evidence respecting various appraisals over the years indicates that he is not credible on this issue. He has been able to effect values by controlling the financial information provided to the appraiser. [72] value this property at $600,000. rely on the fact that the parties signed an agreement to sell in 1999 for $625,000. As well, in 2000 they obtained an appraisal for mortgage purposes in the amount of $625,000. also rely on the fact that in September, 2004, they were offered $600,000 which was turned down by Mr. Faddoul. The prospective purchaser testified that he was expecting counter offer. These are real indicators of true value. [73] am not going to make any adjustments for roof repairs. The September, 2004 offer did not address these repairs and the offer was primarily “as is”. have applied the principles in Simmonds v. Simmonds, supra, and fix the mortgage payout at $308,000. will deduct the real estate commission ($36,000), the HST ($5,400), legal fees ($1,500) and the mortgage ($308,000). The net value for division purposes is set at $249,100. [74] The Lebanon Property: This is single, condo style home in Lebanon. Construction was completed in 1990 prior to marriage. The parties lived in the property for less than year before returning to Halifax in 1991. Ms. Faddoul has not seen the property since that time. While they lived in the property, Ms. Faddoul’s parents spent $5-6,000 for furnishings. [75] Ms. Faddoul’s position is that this is matrimonial property and is presumptively divisible. While there is no evidence of valuation, she advances value of $25,000. Mr. Faddoul’s position is that the parties have no interest in the property given that it was conveyed to his mother pre-separation. He stated that they both agreed to surrender any ownership after 1991 and that it only became an issue upon separation. [76] found the evidence respecting the Lebanon property to be vague and unreliable. am unable to ascertain value or whether the Faddoul’s have any present day ownership in the property. It has not been occupied as matrimonial home since 1991. found no evidence to conclude that the parties, during their marriage, ever considered this to be matrimonial asset. Consequently make no order respecting this property. [77] Matrimonial Home Contents: The matrimonial home contains the usual contents for family of five. Mr. Faddoul testified that at separation he removed only the BBQ and his clothing. He now seeks the living room and dining room furniture and his souvenirs from ledge above the fireplace. There have been no valuations submitted in relation to any household contents. [78] am not prepared to disturb the present division of contents which leaves almost everything in the matrimonial home. The livingroom and dining room furniture shall remain in the home for the benefit of the children and Ms. Faddoul. have no evidence as to value so will not make an order compensating Mr. Faddoul for the unequal division of household contents. do order that Mr. Faddoul receive his personal belongings and souvenirs. [79] Boat, trailer and truck: Mr. Faddoul retained boat and trailer from the marriage. He has valued these items at $5,500 and that value has not been refuted. He sold 1985 truck post-separation for $1,200 and kept those proceeds. [80] There will be an equal division of the value of these items. [81] Jewellery: The Faddouls kept their jewellery in safety deposit box. Mr. Faddoul stated that when he last visited the box nothing remained. Ms. Faddoul testified that she had the box drilled only to find it empty. Both parties accuse the other of “cleaning out” the safety deposit box. Both had access to the box. Both deny removing the contents. [82] There are no formal evaluations. The parties both feel the jewellery in the box was worth approximately $10,000. [83] Neither Mr. Faddoul nor Ms. Faddoul have sufficient credibility on this issue to allow me to determine what happened to the jewellery. am unable to conclude which party disposed of this property. make no order respecting the jewellery. [84] Debts Obligations: The parties have argued there are outstanding financial obligations that should be included in the overall property division. The evidence and the “paper trail” for each is convoluted and confusing. The transactions are as follows: Mr. Faddoul submits that Bazoun Enterprises Limited is owed shareholders loan of approximately $40,000 and this represents funds used to purchase the matrimonial home at 70 Sinclair. find this is pre-separation transaction. Ms. Faddoul contends that she had $30 $40,000 in savings at the time of the marriage and that these funds went into the business. Ms. Faddoul alleges that in 1999 Mr. Faddoul removed $15,006 from the Prospect Road property account and that she has no idea as to the disposition of those funds. Mr. Faddoul suggests that these funds were used for ongoing business activities. This alleged transaction pre-dates separation. Ms. Faddoul alleges that Mr. Faddoul removed $25,000 from the Prospect Road property account and took it to Lebanon. Mr. Faddoul says he paid back $15 $17,000. Ms. Faddoul says none was paid back. This alleged transaction pre-dates separation. [85] find that all of these “transactions” occurred prior to separation. They were subsumed by the manner in which the Faddoul’s conducted their personal and business finances. The evidence, both oral and documentary, does not allow for any kind of factual determination. Consequently conclude they were resolved prior to the parties separation and no order will be made respecting these amounts. [86] Conclusion: It will be apparent to the parties that I have decided to treat their property as matrimonial and, therefore, equally divisible. see no factors that would suggest that an overall equal division would be unfair or unconscionable. review of the evidence as whole satisfied me that this couple did not separate their personal and business finances during the marriage. Significant attempts were made after separation and during the trial to create business asset out of family venture. It would be unfair to both spouses to treat their property in any way other than equally divisible. [87] The parties filed extensive financial documentation in an effort to establish that one or the other had removed funds from their businesses without the consent of the other. As stated the documentation was extensive but not conclusive. The parties credibility was factor in interpreting the documentation and both lacked credibility when it came to discussing the records. Given that the Faddouls operated family business, am not prepared to apportion these amounts to one spouse or the other. have found them all to be pre-separation transactions and that none of them survived the date of separation. [88] have awarded ownership of the individual assets to the party who felt could operate them most effectively. Additionally have considered which party managed each individual asset since the date of separation. [89] The following table sets forth the property division. EQUALIZATION TABLE 1. Matrimonial Home 70 Sinclair St. $138,900 2. 3445-51 Rowe Ave. $229,428 3. 1985 Chevrolet 4. Boat and Trailer 5. Bazoun Developments Ltd. 6. Prospect Road Hfx. Reg. Mun. $368,328 Mr. Faddoul pays Ms. Faddoul to equalize division of property [90] therefore order that Mr. Faddoul pay Ms. Faddoul the sum of $27,153 to effect an equal division of matrimonial property.

The parties were married for 13 years and had three children. Both parties appeared to have a standard of living higher than their personal annual income would dictate; the husband by funneling many of his personal expenses through his company and the wife with the financial assistance of her parents. The wife sought lump sum spousal support to cover the cost of her tuition for a three year course in a divinity college. In addition to the matrimonial home, the parties owned various rental properties. Joint custody of the children ordered with primary day to day care to be with the wife; in the event that the parties cannot agree on any major issue concerning the children, the final decision will be made by the wife; income attributed to the husband for child support purposes; piano lessons and musical instruments found to be extraordinary expenses within the meaning of s. 7 of the Guidelines but soccer, tennis and horseback riding are not; no spousal support ordered; all property equally divided. The wife's father had given her one rental property from which the rental proceeds went to the mortgage and into the parties' joint bank account; the husband was extensively involved in the operation of the property. This property was found to be a gift to the wife that became a matrimonial asset during the marriage as it was operated as a family venture. A second rental property was purchased by the husband and the wife's brother; the wife considered herself a partner in the venture even though her name was left off the deed. This property was also found to be a matrimonial asset.

b_2005nssf21.txt

J. Date: 20011126 Docket: S.H. 166852 IN THE SUPREME COURT OF NOVA SCOTIA [Cite as: Bolands Limited et al v. Ivan Smith Holdings Limited, 2001NSSC171] BETWEEN: BOLANDS LIMITED, body corporate, LOBLAWS PROPERTIES LIMITED, body corporate, and the OSHAWA GROUP LIMITED, body corporate and IVAN SMITH HOLDINGS LIMITED, body corporate Respondent HEARD BEFORE: The Honourable Justice Suzanne M. Hood, In Chambers PLACE HEARD: Halifax, Nova Scotia DATE HEARD: July 16, 2001 DECISION: November 26 2001 COUNSEL: David P.S. Farrar, Q.C. and Kendrick Douglas, for the Appellants A. Douglas Tupper, Q.C., Douglas Skinner and L. Davies, for the Respondent [1] The lease between Landlord and Tenant contained an arbitration clause. The Tenant seeks to have the award of the arbitrator made pursuant to that clause quashed. [2] The issues are: 1. Did the arbitrator correctly decide his jurisdiction? 2. Is the decision of consensual arbitrator, protected by privative clause, immune from judicial review, even if patently unreasonable? 3. If not, was the arbitrator’s decision patently unreasonable in this case? [3] Ivan Smith Holdings Limited as Landlord and Bolands Limited as Tenant entered into two-year commercial lease. Bolands was later amalgamated with Oshawa Holdings Limited which in turn was amalgamated with the Oshawa Group Limited. The lease was amended and then assigned to Loblaws Properties Limited. On the expiry of the lease, the Tenant vacated. [4] dispute arose between the Landlord and the Tenant about damage to the premises and whose responsibility it was to repair the damage. dispute also arose about insurance coverage and whether insurance should have covered the damage. [5] Peter J. MacKeigan was appointed sole arbitrator pursuant to clause 15.10 of the lease. The relevant portion of s. 15.10 is as follows: In case of any disagreement between the Landlord and the Tenant in regard to any clause or provision hereof, the same shall be settled by arbitration ... his decision shall be final and binding on both parties. [6] The arbitrator set out the issues before him at pp. and of his decision as follows: 1. Responsibility for Repairs (a) Did the loss occur as result of the acts or omissions of the Tenant or its servants and agents? (b) Is the loss one which is covered by insurance, within the meaning of the Lease? (c) Did the Landlord cause or contribute to the loss? 2. Requirement for Notice: (a) If the loss is covered by insurance, is the Tenant required to notify the Landlord of the loss and does claim need to be made? (b) Do the principles of waiver and estoppel apply as against the Tenant in these circumstances? 3. Is the Landlord entitled to rectify the Lease? 4. Does the arbitrator have jurisdiction to award damages? (a) If yes, did the Landlord mitigate its damages? [7] The arbitrator found the Tenant liable to the Landlord in the sums of $318,252.00 for repairs and $59,130.34 for loss of rental opportunity. [8] The Tenant seeks to quash the decision of the arbitrator pursuant to s. 15 of the Arbitration Act, R.S.N.S. 1989, c. 19 as follows: 15(2) Where an arbitrator or umpire has misconducted himself, or an arbitration or award has been improperly procured, the Court may set aside the award. JURISDICTION OF ARBITRATOR [9] Both parties agree that the standard of review is correctness with respect to the issue of jurisdiction of the arbitrator. They disagree, however, about whether the arbitrator exceeded his jurisdiction. [10] The Supreme Court of Canada cautions against finding excess of jurisdiction too readily. In Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corporation (1979), 1979 CanLII 23 (SCC), 97 D.L.R. (3d) 417, Dickson, J. (as he then was) said at p. 422: The Courts, in my view, should be alert not to brand as jurisdictional, and therefore subject to broader curial review, that which may be doubtfully so. [11] Lamer, J. (as he then was) also said, in Blanchard v. Control Data Canada Limited, 1984 CanLII 27 (SCC), [1984] S.C.R. 476 at p. 489: They [the courts] should only intervene if they find genuine excess of jurisdiction by the arbitrator, not simply where they disagree with his findings. [12] The appellants say that the arbitrator only has authority to interpret clauses or provisions of the lease, that is to interpret their meaning. They therefore say that the arbitrator had jurisdiction to determine who had the duty to repair under the lease but that he did not have jurisdiction to rectify the lease, nor accept parol evidence about the meaning of the lease, nor deal with the issue of estoppel. [13] The respondent says it was within the arbitrator’s jurisdiction to determine not only who was responsible for repairs, but also to rectify the lease and to use other canons of construction including estoppel. The respondent says this is so since the jurisdiction of arbitrators should be interpreted broadly. [14] Both parties cite Ontario v. Abilities Frontier Co-operative Homes Inc. (1996), C.P.C. (4th) 81 (Ont. Gen. Div.) as establishing the test for determining whether an arbitrator has jurisdiction. In that decision, Sharpe J. said at para. 11: The authorities establish that two-step test is to be applied where party seeks stay or similar relief on the ground that the arbitration agreement does not apply to the dispute raised by the proposed arbitration. First, the court should ascertain the precise nature of the dispute which has arisen. Second, the court should determine whether the dispute is one which falls within the terms of the arbitration clause ... [15] The respondent says that in order for the arbitrator to settle disputes between the Landlord and the Tenant under the lease, the arbitrator had authority to rectify the lease, apply the principles of waiver and estoppel against the Tenant and award damages. [16] conclude that the disputes between the Landlord and Tenant were: a) Who is responsible for repairs; b) Whether the loss was covered by insurance and, if so, was notification by the Tenant required or did claim need to be made; c) The amount of the damages; and d) Whether estoppel should be applied against the Tenant. [17] The second step is to determine whether these disputes fall within the terms of the arbitration clause. The appellant argues for very narrow interpretation of the arbitration clause, and the respondent argues for very broad interpretation. do not agree entirely with either position. [18] The lease says in s. 15.10 that “any disagreement ... in regard to any clause or provision” of the lease “shall be settled by arbitration ...” The appellant asks me to interpret that provision as if the words “the interpretation of” any clause or provision of the lease appear in s. 15.10. They are not. therefore conclude that it was the intent of the parties as expressed in the words of s. 15.10 that if dispute arose with respect to any clause or provision of the lease, the arbitrator was not limited simply to interpreting the words of the lease but could deal more broadly with the clauses and provisions of the lease. This would include such things as rectifying the lease to incorporate the intent of the parties. To do so it would be necessary for the arbitrator to consider parol evidence. [19] The respondent, on the other hand, would have me interpret s. 15.10 as if the words “in regard to any clause or provision” of the lease did not appear in s. 15.10. In my view, since they are there, they must be given some meaning. [20] In giving broad interpretation to arbitration provisions, cannot ignore the wording the parties themselves chose. [21] In Bridgepoint International (Canada) Inc. v. Ericsson Canada Inc., [2001] Q.J. No. 2470 (Que. S.C.) Pierrette Rayle J. quoted in para. from the dispute resolution clause which said in part: 13.1 The Parties will use their best efforts to resolve any disputes. In para. Pierrette Rayle, J. said: 9. These agreements should not therefore be perceived as limiting the rights of the parties. They simply identify, when clearly drafted, preferred way by which these rights may be exercised. (Emphasis added.) [23] In Cityscape Richmond Corp. v. Vanbots Construction Corp., [2001] O.J. No. 638 (Ont. S.C.J.) Trafford, J. says in para. 21. What, then, is the proper interpretation of the arbitration clause under this contract? Is it properly characterized as one of limited arbitration? Alternatively, is it properly characterized as universal arbitration clause? Giving it large, liberal and remedial interpretation, am satisfied that it is of sufficient scope to cover all of the disputes between Cityscape and Vanbots ... The clause which Trafford, J. interpreted was: ... Differences between the parties to the contract as to the interpretation, application or administration of the contract or any failure to agree where agreement between the parties is called for, herein collectively called disputes, which are not resolved in the first instance by findings of the consultant ... shall be settled in accordance with the requirements of part of the general conditions dispute resolution. [24] In Automatic Systems Inc. v. E.S. Fox Ltd. (1995), 19 C.L.R. (2d) 35 (Ont. C.J.) Adams J. interpreted an arbitration clause in subcontract. The clause provided in part: Contractor and Subcontractor shall work in good faith to settle all Claims. In the contract, “claim” was defined as follows: ‘Claim’ means any demand or assertion by Contractor or Subcontractor against the other that seeks an interpretation of the Subcontract, and adjustment in the Subcontract Price or Subcontract Schedule or any other relief under the terms of this Subcontract. [25] The arbitration clauses in both Cityscape and Automatic Systems are, in my view, far broader than that in this lease. I conclude that the arbitration clause under the lease is a limited arbitration clause. It does not provide that all disputes between the parties are to be settled by arbitration, but only disputes with regard to clauses or provisions of the lease. However, interpret that wording broadly so as to carry out the intent of the parties. conclude that it means more than simply interpreting the words in those clauses or provisions. It also means determining the intent of the parties. The parties did not provide that claims be settled by arbitration nor did they provide that all disputes arising out of the Landlord/Tenant relationship be settled by arbitration, but only those disputes involving the clauses of the lease itself. [26] conclude that the issues of responsibility for repairs, whether the loss was covered by insurance and whether notification or claim was required are issues within the jurisdiction of the arbitrator. They involve dispute about clauses in the lease dealing with the obligations of the parties with respect to damage to or the condition of the leased premises, insurance requirements and the duties of each party with respect to that insurance. These disputes are with respect to clauses 3.04 and 4.02 of the lease. [27] conclude that the awarding of damages is not the sort of doubtful case to which Dickson, J. referred to in C.U.P.E., supra. therefore conclude that this is clear case of the arbitrator exceeding his jurisdiction. [28] The arbitrator was not correct in concluding that he had authority to award damages. That is beyond the scope of the arbitration clause because it is not dispute about the clauses or provisions of the lease. There is no jurisdiction to resolve claim such as this which arises from the Landlord/Tenant relationship itself and not the clauses and provisions of the lease. [29] I also conclude for the same reason that the arbitrator was incorrect in assuming jurisdiction to apply the principle of estoppel against the Tenants. In the decision at p. 29 (p. 35 Appeal Book, Volume 1), the arbitrator dealt with the issue of estoppel. After quoting from Waddams, The Law of Contracts and Fridman, The Law of Contract, he concludes: In such situation it would be inequitable for strict rights to be upheld where the party now setting up the estoppel has relied upon the actions and statements to his detriment. [30] The respondent says that applying the principle of estoppel is canon of construction which the arbitrator was free to use, just as he was free to rectify the lease. disagree. The principle of estoppel is an equitable principle and not canon of construction. It does not assist in interpretation. Instead, it may allow party to avoid the result of an interpretation where it would be inequitable to do otherwise. [31] In applying the principle of estoppel, the arbitrator was not dealing with dispute about clause or provision of the lease. He was dealing instead with the conduct of the parties and the effect of that conduct. He said at pp. 29-30 of his decision: The Tenant by appropriate personnel who normally communicate with the Landlord had represented they would remedy the damages which they felt were not caused by faulty design of the curbs. This communication was relied upon by Ivan Smith Holdings. [32] The arbitrator applied the equitable principle of estoppel. In doing so, he exceeded his jurisdiction under the arbitration clause of the lease. He was therefore acting outside his jurisdiction. [33] Accordingly, the decisions of the arbitrator dealing with damages and estoppel are set aside. With respect to the rest of his decision, conclude that it was within his jurisdiction to deal with those issues. IMMUNITY FROM REVIEW [34] The respondent urges upon the court that the decision of Hallett, J.A., in Canada Post Corp. v. Canadian Postmasters and Assistants Association (1993), 1993 CanLII 3203 (NS CA), 121 N.S.R. (2d) 112 (N.S.C.A.) stands for the proposition that, under certain circumstances, the decision of consensual arbitrator protected by privative clause is immune from judicial review even if wrong or patently unreasonable. [35] The respondent refers the court to para. 39 of the Hallett decision: 39. The test for judicial review of an award of consensual arbitrator protected by privative clause is whether he exceeded or declined to exercise his jurisdiction, which question turns on the determination of the issue before him and whether he dealt with that question. If the issue before him involves the interpretation of clauses of the collective agreement the arbitrator must give to those clauses an interpretation the language will reasonably bear (Volvo). Finally, in exercising his jurisdiction, an arbitrator must comply with the recognized tenets of procedural fairness. If the arbitrator complies with these duties, his award is immune from judicial review even if it appears to be wrong or even patently unreasonable. [36] The respondent says that greater deference is to be shown to consensual arbitrator than to statutory tribunal because consensual arbitrator is one chosen by the parties and not imposed upon them. The respondent says that commercial parties negotiated an agreement which included provision for consensual arbitrator whose decision would be final and binding. He says that it is important in the commercial context that decision be made and that it be done expeditiously. [37] The respondent submits that the effect of the Canada Post decision is that decisions of consensual arbitrators are immune from judicial review as long as the arbitrator correctly assumed jurisdiction and gave procedural fairness. [38] The respondent submits this to be the case even if the interpretation given by consensual arbitrator is patently unreasonable. The respondent says this flows from the greater degree of judicial deference given to decisions of consensual arbitrators. The appellant says the respondent gives paragraph 39 the wrong interpretation and ignores the distinction between the second sentence and the last. The second sentence refers to giving the clauses of the collective agreement “an interpretation the language will reasonably bear”. The appellant says that when Hallett, J.A. referred to immunity from judicial review he was referring only to “the award” and not the interpretation of clauses of collective agreement, which interpretation must not be patently unreasonable. [39] To resolve this issue, one must look carefully at the decision. In para. 11, Hallett, J.A. says: 11. The first issue to be addressed in this case is to determine the scope of judicial review from the decision of consensual arbitrator. Counsel for the respondent submits, in his factum, that ‘the accepted test for the review of an award of consensual arbitrator is the same that for statutory tribunal, namely: is the award patently unreasonable?” He continues in para. 11: am not satisfied that the cases support such definitive statement as that made by the respondent’s counsel. [40] Counsel for the respondent in the Canada Post case, cited Shalansky and Saskatchewan Union of Nurses v. Regina Pasqua Hospital, 1983 CanLII 117 (SCC), [1983] S.C.R. 303; 47 N.R. 76; 25 Sask. R. 153 as one of the authorities for his submission. Hallett, J.A. says in para. 12. The issue in the Shalansky case was to determine the scope of review by court from an award in grievance proceeding involving the interpretation of the collective agreement by consensual arbitrator; not whether the award itself was patently unreasonable. It does not necessarily follow that if the interpretation of collective agreement is reasonable that the award itself is reasonable. (Emphasis in original) [41] Hallett, J.A. then refers to the Volvo decision in para. 16 (International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (U.A.W.), Local 720 v. Volvo Canada Ltd.) 16 ... The essence of that decision, which was followed in Shalansky, is that court, in reviewing decision of consensual arbitrator involving the interpretation of the collective agreement, is to determine if the interpretation of the agreement by the arbitrator was patently unreasonable not whether it was the correct interpretation. These cases are not authority for the proposition that awards of consensual arbitrators ought to be set aside if the award is patently unreasonable. In para. 19, Hallett, J.A. said of the Volvo decision: 19 ... it signalled trend of curial deference to decisions of consensual arbitrators where the issue was the interpretation of the collective agreement. [43] Beginning in para. 21, Hallett, J.A. refers to decisions of the Supreme Court of Canada which “involved judicial review of decisions of statutory tribunals.” He says that “... the Supreme Court ... has decided that the courts cannot defer to decisions which are patently unreasonable.” [44] Hallett, J.A. then goes on to say that he is not aware of decisions which give that expanded scope of judicial review to the judicial review of decisions of consensual arbitrators. He says in para. 23. am not aware of any decision of the Supreme Court of Canada that states this expanded scope of judicial review of decisions of statutory tribunals as developed in Lester and the other cases referred to ought to be applied to the judicial review of decisions of consensual arbitrators dealing with grievance filed under collective agreement and protected by no review clause. Although not argued on the appeal, the issue is relevant in this case because the award of the learned arbitrator, depending on one’s shock threshold, could be considered patently unreasonable but the interpretation of the relevant provisions of the collective agreement by the learned arbitrator is not. [45] Beginning in para. 24, Hallett, J.A. refers to the Lester decision in some detail. Hallett, J.A. said of the Lester decision: 24 .... The decision of the tribunal in Lester was protected by similar privative proviso. Awards of consensual arbitrators protected by privative clause can be set aside for jurisdictional error which include the consensual arbitrator interpreting the agreement in manner that the language of the agreement will not reasonably bear, acting in biased or fraudulent manner or committing breaches of natural justice. These are recognized grounds for court to interfere with the award. The question arises whether there should be added to this list of jurisdictional errors, the making, by the consensual arbitrator of patently unreasonable award. [46] Hallett, J.A. then summarizes the result of the Lester decision. He says in paras. 27. In summary, the Lester decision confirmed that, at least in the face of strong privative clause, curial deference ought to be extended both to the determination of facts and the interpretation of the legislation statutory tribunal is empowered to administer. The court should interfere only if the evidence viewed reasonably is incapable of supporting tribunal’s finding of fact or where the interpretation of the statute it administers is patently unreasonable. Stated in another way the court should interfere if there has been patently unreasonable error in the performance of the tribunal’s function; that goes to findings of fact and interpretation of its governing statute by the tribunal. The test has been described by the Court as ‘stringent’ but it has expanded the scope of review of decisions of statutory tribunals. 28. In my opinion, the more specialized the tribunal the less inclined the courts should be to interfere with its awards. The split in the Supreme Court of Canada in Lester is evidence in itself of the mixed results that flow from the application of the expanded test of patent unreasonableness. [47] Then Hallett, J.A. poses the central question in the Canada Post case in para. 29. However, the question remains whether this expanded scope of judicial review of decisions of statutory tribunals applies to awards of consensual arbitrators; in my opinion it does not. First, there is (sic) indication in either Lester, Paccar or Corn Growers that the Supreme Court of Canada intended the widened scope of review would apply to awards of consensual arbitrators. Secondly, the decision of the Supreme Court of Canada in British Columbia Telephone Co. v. Telecommunications Workers Union, 1988 CanLII 14 (SCC), [1988] S.C.R. 564; 88 N.R. 260, indicates that the Court favours restricted review of awards of consensual arbitrators in keeping with its decisions in Volvo and Shalansky. [48] In BC Telephone the majority of the court adopted the reasons of Lambert, J.A. of the British Columbia Court of Appeal. Justice L’Heureux-Dubé dissented and in her dissent thoroughly reviewed Justice Lambert’s dissenting reasons at the British Columbia Court of Appeal. [49] Hallett, J.A. set out the entire majority decision and substantial portions of Justice L’Heureux-Dubé’s dissent which, in turn, quoted extensively from the decision of Lambert, J.A. [50] Justice L’Heureux-Dubé referred to the decision of Dickson, J. in C.U.P.E. v. New Brunswick Liquor Commission. Hallett, J.A. said of the passage quoted from the C.U.P.E. decision: 33. would note that Dickson, J., was addressing his attention to the interpretation of provision in the Act administered by the tribunal not whether the award was patently unreasonable and he was dealing with decision of statutory tribunal. (Emphasis in original) 34. Justice L’Heureux-Dubé concluded that the error in interpretation of an employee’s status during strike made by the learned arbitrator was jurisdictional and that the Court had duty to intervene., She relied on decisions of the Supreme Court of Canada in cases involving the judicial review of decisions of statutory tribunals rather than consensual arbitrators. She then considered the non-interventionist policy adopted by the courts and specifically how far the courts should be disinclined to interfere with awards of consensual arbitrators. Hallett, J.A. then said at para. 36. Justice L’Heureux-Dubé in her reasoning then directed her attention to the decision of Lambert, J.A., and that of the majority in the Supreme Court of Canada. She stated at p. 587: Lambert, J.A., and the majority of this court by implication, place great deal of weight on the fact that this was consensual arbitration. In the words of Lambert, J.A., at p. 152: statutory tribunal should follow its own previous decisions and, for that reason, ought to be required to be right in its interpretation of general public enactments and general legal principles, and ought to arrive at its decisions, even on matters particularly within its special expertise and function, on the basis of demonstrably rational process. Those requirements do not have quite the same force in the case of consensual arbitrator. The significant fact about consensual arbitrator is that the parties have picked the arbitration process, and they have picked the arbitrator, because they want that process and that arbitrator in preference to any other process or any other decision-maker. And they want the arbitrator to do what they ask him to do in the way they ask him to do it and not to do something else in some other way. In short, the Anisminic principles apply to consensual arbitrator, but there is maximum scope for curial deference, and for judicial restraint, in the determination of whether the arbitrator contravened his terms of reference, and so made ‘jurisdictional’ error. (Emphasis added by Hallett, J.A.) With deference, do not see how this elaboration of distinction between the two types of arbitrations establishes need for particularly restricted scope for judicial review in the case of consensual arbitrations. Without putting too fine point on it, judicial review is judicial review. Where there is an error going to jurisdiction, judicial review is the proper remedy. There is no different standard for review in consensual arbitrations. [51] Justice Hallett’s reasons for quoting so extensively from the dissent of Justice L’Heureux-Dubé are explained in para. 38 as follows: 38. have quoted extensively from her reasons to put those reasons in juxtaposition with those of the majority. The decision of the majority adopted the reasons of Lambert, J.A., that the error in law, assuming there was one, was within the learned arbitrator’s jurisdiction, therefore, the award would withstand judicial review. Insofar as Justice L’Heureux-Dubé rejected the reasoning of Lambert, J.A., it is reasonable to infer that the majority, having adopted his reasoning, rejected that of Justice L’Heureux-Dubé that the error in law was jurisdictional in nature. Based on the majority decision, conclude that greater deference should be shown to awards of consensual arbitrators protected by privative clause then to judicial review of decisions of statutory tribunals protected by similar clause. There is no jurisprudence that specifically extends the scope of review of consensual arbitrators’ awards so as to permit court to set aside an award that is patently unreasonable although made within his jurisdiction. Therefore, disagree with the submission of the respondent’s counsel that the test for review of awards of consensual arbitrator is the same as that for statutory tribunal. find that Mr. Justice Boudreau erred in law in applying the ‘patently unreasonable award’ test as developed in Lester, Corn Growers and Paccar. In face of the decision of the majority in BC Telephone, would not presume that the Supreme Court of Canada in Lester intended the scope of the review of decisions of statutory tribunals would apply to consensual arbitrators without having expressly so stated. It would appear to me that the Supreme Court of Canada, in adopting the reasons of Lambert, J.A. has clearly indicated that awards of consensual arbitrators are entitled to be shown greater deference than the decisions of statutory tribunals for the reasons given by Lambert, J.A., which have set out. [52] It is in this context that the passage to which the respondent refers, para. 39 of Justice Hallett’s decision, should be considered. repeat it here for ease of reference. 39. The test for judicial review of an award of consensual arbitrator protected by privative clause is whether he exceeded or declined to exercise his jurisdiction, which question turns on the determination of the issue before him and whether he dealt with that question. If the issue before him involves the interpretation of clauses of the collective agreement the arbitrator must give to those clauses an interpretation the language will reasonably bear (Volvo). Finally, in exercising his jurisdiction, an arbitrator must comply with the recognized tenets of procedural fairness. If the arbitrator complies with these duties, his award is immune from judicial review even if it appears to be wrong or even patently unreasonable. [53] The following paragraphs of Justice Hallett’s decision show how he applied his conclusions and the test that he set out in para. 39. In para.42, he says: ... Therefore, it cannot be said that the learned arbitrator interpreted the Collective Agreement in manner that the language of the Agreement would not reasonably bear. He continues in that same paragraph: 42 ... In my opinion, this was decision made within his jurisdiction as conferred on him by the submission made to him by the parties. would have come to different conclusion as it does not seem to me to make any sense to require Canada Post to complete competition for non-existent position. However, would defer to the judgment of the experienced labour relations arbitrator who was asked by the parties to decide the issue. Simply because court may find the award patently unreasonable in its result is insufficient reason to brand the award one of jurisdiction error that would justify setting it aside. (emphasis added) [54] He concludes in para. 43. The issue before the learned arbitrator was whether or not Canada Post had to complete the competition it had started. Based on the provisions of the Collective Agreement he decided that it did. He acted within his jurisdiction and his interpretation of the Collective Agreement is reasonable. He summarizes in para. 59. In summary am satisfied that the learned arbitrator did not interpret the provisions of the Collective Agreement re staffing in manner which the language would not reasonably bear notwithstanding that do not agree with his result. (my emphasis) [55] In my view, Justice Hallett’s conclusions in paras. 42, 43 and 59 make it clear what he meant in para. 39, especially in light of his review of the BC Telephone decision. The test set out by Justice Hallett in para. 39 includes determination of whether the arbitrator gave the clauses of the collective agreement an interpretation the language would reasonably bear. If the arbitrator does that and complies with the other duties to which Hallett, J.A. refers in para. 39 then his “award” is in fact immune from judicial review even if it appears to be wrong or even patently unreasonable. In other words, even if the result may be wrong or even patently unreasonable, it cannot be interfered with if the interpretation he gives to clauses to arrive at that result is one the language of those clauses will reasonably bear. [56] The respondent also submits that the Volvo decision stands for more than what the appellant says it does. However, for the purpose of applying Justice Hallett’s test for judicial review of an award of consensual arbitrator, it must be recognized that he cited it for the conclusion that the arbitrator must give clauses of collective agreement an interpretation the language will reasonably bear. Hallett, J.A. referred to the Volvo decision in para. 19 and, in the passage which have quoted above, referred to the essence of that decision. He said that, when court is reviewing the decision of consensual arbitrator involving the interpretation of collective agreement, the court is to determine if the interpretation by the arbitrator was patently unreasonable. In my view, it is for that proposition that Justice Hallett refers to Volvo in para. [57] Counsel referred me to number of decisions in addition to the Canada Post decision. U.M.W. District No. 26 v. Cape Breton Development Corp. (1994), 1994 CanLII 4144 (NS CA), 130 N.S.R. (2d) 321 (C.A.) was judicial review of decision of statutory tribunal. C.U.P.E. Local 963 v. New Brunswick Liquor Corporations, supra, was judicial review of the decision of the Public Service Labour Relations Board, statutory tribunal. Atlantic Communications Technical Workers Union v. Maritime Telegraph and Telephone Co. (1991), 108 N.S.R. (2d) 30 is Nova Scotia Supreme Court decision predating Canada Post. [58] In Sinanan v. Harbour Cities Veterinary Associates (1997), 1997 CanLII 9918 (NS SC), 160 N.S.R. (2d) 57 (S.C.), MacAdam, J. referred to the Canada Post decision. He quotes from the decision in paras. 29, 30 and 31 including the test for judicial review set out by Hallett, J.A. However, the result in the Sinanan decision was with respect to the arbitrator having declined to exercise jurisdiction. [59] In Nova Scotia Teachers Union v. Nova Scotia (Min. of Education) (1998), 1998 CanLII 2392 (NS SC), 170 N.S.R. (2d) 284 (S.C.), Nathanson, J. dealt with an application for judicial review of the decision of an arbitrator. Although he did not refer to the Canada Post decision, he did refer to the Supreme Court of Canada decision in Paccar of Canada Ltd. Canadian Association of Industrial, Mechanical and Allied Workers, Local 14, 1989 CanLII 49 (SCC), [1989] S.C.R. 983; 102 N.R. 1; 62 D.L.R. (4th) 437 and its decision in Canada (Attorney General) v. Public Service Alliance of Canada, 1993 CanLII 125 (SCC), [1993] S.C.R. 941; 150 N.R. 161; 101 D.L.R. (4th) 673. He began his discussion of the issue of the appropriate standard of review by saying (para. 20): 20. Counsel do not seriously contest this first issue. He then went on to say in para. 23. It is also common ground that the test for judicial review of an award of consensual arbitrator protected by privative clause is whether he exceeded or declined to exercise his jurisdiction and, if the issue before him involves the interpretation of clauses of collective agreement, the arbitrator must give to those clauses an interpretation the language will reasonably bear. [60] Nathanson, J. said in para. 23 that both counsel cited Paccar: “as authority for requirement that the courts must focus their inquiry on the existence of rational basis for the decision and not on their agreement with it; the emphasis should be not so much on what result was arrived at, but on how the result was reached.” He then, in para. 24, referred to the “rational basis” test in the P.S.A.C. decision as meaning that “the decision must not be clearly irrational.” [61] The only decision to which counsel for the respondent could refer me which he submits supports his interpretation of Justice Hallett’s words is Grey Goose Bus Lines v. Canadian Brotherhood of Railway Transport and General Workers, 1994 CanLII 16758 (MB QB), [1994] M.J. No. 644 (Man. Q.B.). However, Canada Post was cited in that decision at para. 41 as authority for the arbitration having been concluded to be consensual and not statutory. Morse, J. then said in para. 42. There is less stringent standard of judicial review for an award of statutory tribunal than for the award of consensual tribunal. With respect to the consensual tribunal the court should adopt ‘hands off’ policy and interfere only where there is bias, fraud, want of natural justice or want of jurisdiction in the strict sense. [62] This, in my view, does not support the submission of the respondent. Furthermore, in Grey Goose, Morse, J. concluded that the tribunal in question was statutory not consensual. Accordingly, his comments about the “hands-off” policy of the courts towards consensual arbitrator are obiter. [63] conclude that there is no absolute immunity for the decisions of consensual arbitrators as result of the application of the test set out by Hallett, J.A. in Canada Post. It is true that greater judicial deference is shown to the decisions of consensual arbitrators than to those of statutory arbitrators. However, cannot conclude that the decision of consensual arbitrator cannot be quashed if the arbitrator fails to give an interpretation that the language of clauses of collective or other agreement can reasonably bear. Nonetheless, if the arbitrator does not fail to give such an interpretation and meets the other requirements set out by Hallett, J.A. in Canada Post then, and only then, is the “award” immune from judicial review. This is so even if that award, which results from the interpretation, appears to be wrong or patently unreasonable. [64] In this regard, one must bear in mind the factual situation in the Canada Post case. Those facts are (as cited in the case summary) as follows: Canada Post closed rural post office before completing the competition process for the vacant postmaster’s position, which no longer existed. consensual arbitrator ruled that Canada Post was required to complete the competition. [65] As previously quoted, Hallett, J. A. said at para 42: would have come to different conclusion as it does not seem to me to make any sense to require Canada Post to complete competition for nonexistent position. [66] It was in this context that Hallett, J.A. made the distinction between the interpretation of the collective agreement made by the consensual arbitrator and the award, in terms of patent unreasonableness. He said in para 42: Therefore, it cannot be said that the learned arbitrator interpreted the Collective agreement in manner that the language of the Agreement would not reasonably bear. [67] That is the test for patent unreasonableness. Accordingly, Hallett, J.A. concluded (as previously quoted) at para. 42: Simply because court may find the award patently unreasonable in its result is insufficient reason to brand the award one of jurisdictional error that would justify setting it aside. [68] He stated it otherwise earlier in the decision at para. 23 (also already referred to) as follows: ... the award of the learned arbitrator, depending on one’s shock threshold, could be considered patently unreasonable but the interpretation of the relevant provisions of the collective agreement by the learned arbitrator is not. [69] Therefore, turn now to the issue of whether, in resolving the dispute about the clauses or provisions of the lease, the arbitrator’s conclusions about those clauses was patently unreasonable. PATENT UNREASONABLENESS [70] The appellants say that the award of the arbitrator should be set aside because he gave to the lease an interpretation the language could not reasonably bear or that he amended the lease, added to it or overlooked material provisions of it. [71] In U.M.W. District No. 26 v. Cape Breton Development Corp. (1994), 1994 CanLII 4144 (NS CA), 130 N.S.R. (2d) 321 (N.S.C.A.), Chipman, J.A. quoted at para. 12 from United Brotherhood of Carpenters and Joiners of America, Local 759 v. Bradco Construction Ltd. (1993), 93 C.L.L.C. 12, 213 at p. 12,222: ... was the Board’s interpretation so patently unreasonable that its construction cannot be rationally supported by the relevant legislation and demands intervention by the court upon review? Chipman, J.A. also quoted at para. 14 from Nova Scotia Liquor Commission v. Nova Scotia Government Employees’ Union, Local 470 (1990), 1990 CanLII 2469 (NS CA), 97 N.S.R. (2d) 55 at p. 57: Thus, in applying the test it is, in the last analysis, for the court to make judgment call on the reasonableness of the decision under review. In doing so, it must exercise restraint and the jurisdiction to set aside such decision will be sparingly used. Where, however, the court’s evaluation of the decision leads to the conclusion that rather than having interpreted the agreement, the arbitrator has amended it, added to it or overlooked material provisions in it, the threshold is breached. Conscious of these restraints, it is necessary to review the merits of the arbitrator’s award. [72] In Nova Scotia Teachers’ Union, supra, Nathanson, J. referred to the test as set out in Paccar, supra: ... that the courts must focus their inquiry on the existence of rational basis for the decision and not on their agreement with it; the emphasis should be not so much on what result was arrived at, but how the result was reached. The ‘rational basis’ test was explained in the later case of Canada (Attorney General) v. P.S.A.C. ... to mean that the decision must not be clearly irrational. [73] have concluded above that the arbitrator’s jurisdiction was broader than simply interpreting the words of the lease. However, that is an important part of what he was to do. [74] In reviewing his decision then am to determine if his conclusions were ‘clearly irrational’. If not, they are not patently unreasonable and are not to be interfered with. [75] The arbitrator found as fact that the damage was caused by the Tenant. That is not in issue before me. What is in issue is insurance: 1) Whether it was to be in the names of both Landlord and Tenant as co-insureds; 2) Whether the Landlord obtained the required insurance; 3) Whether the Landlord waived any right of recovery against the Tenant; 4) Whether the insurance covered repeated damage; and 5) Whether notice had to be given by the Tenant of damage. [76] Section 4.02 of the lease deals with fire insurance and provides as follows: Section 4.02 Fire Insurance The Landlord covenants and agrees that throughout the term of this Lease and any renewals thereof it will carry fire insurance with normal extended coverage endorsements in respect of the demised premises in an amount equal to the full replacement value thereof. All policies of insurance affecting any part of the demised premises, whether carried pursuant to this Section 4.02 or otherwise, shall be in the name of and for the mutual benefit of the Landlord and the Tenant and all such policies shall be endorsed with an acknowledgement that notice is received and accepted that the Landlord has waived any right of recovery from the Tenant, and the Landlord doth hereby waive any such right of recovery. In addition, all such policies shall provide that the insurer thereof shall give the Tenant thirty (30) days’ notice prior to any cancellation or failure to renew. The Landlord further agrees to provide the Tenant with certificates of all insurance policies required to be undertaken by the Landlord pursuant to the terms of this Lease. In the event the Landlord does not take out such insurance as is provided for in this Section 4.02, or in the event the Landlord does not comply with all of the provisions of this Section 4.02, the Tenant shall, but shall not be obliged to, take out such insurance and/or comply with the provisions of this Section 4.02 and any costs incurred by the tenant in so complying with the provisions of this Section 4.02 may be deducted by the Tenant from the next payment of rent due hereunder. Co-insured/Mutual Benefit [77] The first issue with respect to the fire insurance clause is the portion of s. 4.02 which says: ... All policies of insurance ... shall be in the name of and for the mutual benefit of the Landlord and the Tenant ... [78] The arbitrator deals with this issue at pages 17 through 22 of his decision (pages 23 through 28 of the Appeal Book, Part I, Tab CC). The arbitrator says at the top of p. 22: find that it was the intent that although the Tenant was not to be named co-insured, the policies of insurance were for the mutual benefit of each of the parties. ... Although the meaning of ‘mutual benefit’ as compared to the former wording requiring the policies to name both parties as co-insured is somewhat ambiguous, it is clear that the tenant was to have the benefit of the insurance policies in accordance with their specific terms. However obviously the parties intended the wording change to reflect new meaning of paragraph 4.02, otherwise why make change. [79] In dealing with this portion of s. 4.02, the arbitrator refers to the law with respect to the remedy of rectification. The appellants say that the arbitrator correctly stated the law with respect to rectification but applied it incorrectly in the case at hand. The appellants say that the law of rectification cannot be applied by the arbitrator in case such as this. However, have concluded above that to have done so is not an excess of the arbitrator’s jurisdiction. The question then remains whether the arbitrator’s conclusion is patently unreasonable. [80] The evidence with respect to this issue is contained at Tab GG of the Appeal Book, Part I, Volume beginning at p. 195. At p. 201 (Tab 3), the words “naming the Landlord and Tenant as co-insureds” are struck out in the draft of s. 4.02. At p. 203 (Tab 4), letter from Bolands to Ivan Smith Holdings Limited dated November 13, 1996 refers to the insurance coverage. It says ,“This coverage is to be in the name of and for the mutual benefit of the Landlord and the Tenant”. The policy requested in that letter is at p. 205 (Tab 5). It gives the insured’s name as “Ivan Smith Holdings Ltd. and Nova Cold Consolidated Ltd.” Bolands is not named. At p. 209 (Tab 6), there is another letter from Bolands dated approximately four months after the letter at Tab 4. It says, “... Bolands Limited is to be named as an additional named insured” and asks that the policy be amended. The reply from Ivan Smith Holdings’ lawyer, David J. Cook, at p. 211 (Tab 7) says: When Mr. Gurnham submitted the first draft of clause 402 [sic] it required the naming of the Tenant and Landlord as co-insured on the policy. My client [sic] insurance agent advised against this and the co-insured provision was deleted from 4.02. The intent was that Bolands would not be named on the policy, but Ivan Smith Holdings acknowledged that the policy would be for the mutual benefit of the five parties. [81] In his decision at p. 18, the arbitrator referred to the May 5, 1997 letter. He also referred to David Cook’s testimony before him. He says on pp. 18-19: ... he suggested some of the additional wording in Section 4.02 should have been deleted. In his view, he understood Ivan Smith Holdings was to be the sole policy holder although he understood the policy was being held for the mutual benefit of both parties. Respecting the difference between parties named as co-insured and the reference to mutual benefit, Mr. Cooke [sic] stated that in his mind ‘there was no magic to the wording’. [82] conclude that the arbitrator did not give to this provision of the lease meaning the language could not reasonably bear. His interpretation was therefore not patently unreasonably. He reviewed the wording of s. 4.02, heard the testimony of David Cook and reviewed the documentary evidence. In my view, there was rational basis for his conclusion. Requirement to Obtain Insurance [83] In s. 4.02 quoted above, the Landlord agreed to carry “fire insurance with normal extended coverage endorsements ... .” On p. 22 of his decision, the arbitrator said: The Section requires the Landlord to carry insurance with normal extended coverage endorsements in respect to the Demised Premises in an amount equal to the full replacement value. find that the Landlord has complied with the requirement of Section 4.02 by carrying the required fire insurance. [84] One of the questions which was before the arbitrator was “Is the loss one which is covered by insurance, within the meaning of the Lease?” [85] The appellants’ position is that the Landlord’s requirement to have insurance included an obligation to have “all risk insurance”. The arbitrator concluded that was not the case and that the insurance which the Landlord obtained complied with the requirements of s. 4.02 of the lease. [86] The appellants’ alternate argument is that the lease sets out scheme of insurance in s. 4.02 and s. 3.04. [87] The arbitrator said at p. 22 under the heading Section 3.04 Landlord’s Repairs: Section 3.04 has quite different purpose than Section 4.02 and speaks of the division of responsibility between the Landlord and the Tenant for repairs where there is insurance coverage and when there is not insurance coverage. He concluded on p. 23: If the damages are not covered by the insurance then the Tenant is responsible. [88] The arbitrator came to this conclusion after reviewing the Landlord’s obligations to repair under s. 3.04. He quoted the section of the lease and underlined two passages from the section. He said what was at issue was the underlined portions of those paragraphs. [89] The evidence before the arbitrator included the offer to lease dated June 20, 1996 from Bolands (Tab D) p. 107. The offer to lease lists as one of the Landlord’s responsibilities, item (d) “fire insurance”. [90] The arbitrator said in his decision at p. 18: The evidence and the exhibits would indicate that the insurance policy that the Landlord has carried was acceptable to both parties. copy of the policy was requested by the Landlord from the Tenant and Peter Malloy, Controller for Bolands, by letter of March 20, 1997 confirmed he had copy of the policy. The only issue respecting the policy at that time was whether the parties were to be named as co-insured or not and the “mutual benefit” wording. [91] At Tab of section GG of the Appeal Book, Part is letter from Bolands Limited requesting copy of the insurance coverage and referring to s. 4.02 of the lease and the Landlord’s obligation to carry fire insurance. At Tab is copy of the Declaration Page of the insurance. Following that is the March 20, 1997 letter to which the arbitrator refers in which Peter Malloy thanks the Landlord for providing copy of the insurance policy and asks about Bolands Limited being an additional named insured. The correspondence which follows deals with the “named insured/mutual benefit provision”. There is no other correspondence in the exhibits from 1997 raising any issue with the insurance coverage. [92] The arbitrator concluded that ss. 3.04 and 4.02 had different purposes. He referred to portions of s. 3.04 which dealt with the Tenant’s obligation to repair “to the extent not covered by insurance” and with the Landlord’s obligation to repair damage “from perils insured against”. He then concluded that if there was no insurance for damage it was the Tenant’s responsibility. He refers to the correspondence about insurance before the lease was executed and after its execution. In my view, based upon the evidence before him, he gave to these provisions of the lease an interpretation their language could reasonably bear. In my view, there was rational basis for his conclusion. His interpretation was not patently unreasonable. [93] The appellants say that the Landlord waived its right of recovery against the Tenant. They say that is the meaning to be given to the words in s. 4.02: All policies of insurance affecting any part of the demised premises, whether carried pursuant to this Section 4.02 or otherwise, shall be in the name of and for the mutual benefit of the Landlord and the Tenant and all such policies shall be endorsed with an acknowledgement that notice is received and accepted that the Landlord has waived any right of recovery from the Tenant, and the Landlord doth hereby waive any such right of recovery. [94] The appellants say this is an unqualified waiver. They say that the arbitrator added to or amended the lease by “saying that the waiver only applied in certain circumstances” (quoting from para. 52, appellants’ factum). [95] The waiver clause is part of clause 4.02 which is entitled “Fire Insurance”. The waiver provision is part of long sentence which begins with the words “All policies of insurance ...”. It includes the words “... all such policies shall be endorsed ...”. The words of waiver appear at the end of that sentence. [96] The arbitrator’s conclusion that the waiver applied only where there was insurance to cover the damage is an interpretation those words can reasonably bear. It is not clearly irrational. It is therefore not patently unreasonable. Insurance Coverage for Repeated Damage [97] At p. 25 of his decision, the arbitrator found as follows: find it [cumulative damage] is not peril covered in the policies of insurance. [98] The appellants say there is no basis for this conclusion and, furthermore, that the arbitrator, in coming to this conclusion, was interpreting the insurance policy. [99] Section 3.04 of the lease is the relevant section. It provides as follows: Section 3.04 Landlord’s Repairs The Landlord shall: (i) maintain the premises and carry out all repairs to the interior of the Demised Premises ... (ii) maintain the exterior of the Premises in good structural condition and repair and make all structural repairs and replacement necessitated by any causse and shall make all repairs or replacements necessitated by any peril covered by standard fire and extended coverage insurance policy. Notwithstanding the foregoing, the Tenant will repair, to the extent not covered by insurance, any damage to the Demised Premises caused by the acts or omissions of the Tenant, its servants or agents. The Tenant shall permit the Landlord access to the Tenant’s forklift and other equipment to inspect and repair and maintain the Demised Premises as required. The Landlord hereby guarantees the building in which the leased premises are situate against all structural defects and guarantees that the said building shall be watertight during the term of this Lease or any renewal hereof. The Landlord further covenants and agrees that subject to Article VIII, it will repair damage or destruction to parts of the demised premises by perils insured against under policies of insurance effected by the Landlord pursuant to this Lease. [100] In that section, two portions are noteworthy. The first is that, although the Landlord has the obligation to maintain the premises and carry out repairs, there is “notwithstanding” clause. That clause provides: “... the Tenant will repair, to the extent not covered by insurance, any damage to the Demised Premises caused by the acts or omissions of the Tenant, its servants or agents.” The second is the Landlord’s covenant that “... it will repair damage or destruction to parts of the demised premises by perils insured against under policies of insurance effected by the Landlord pursuant to this Lease.” [101] The arbitrator concluded that the damage was not covered by insurance. He found that the damage was caused by the Tenant. He said at p. 25: The insurance companies said the damage was not peril covered in the insurance. On that basis as the damages are not covered by insurance, under section 34.02 [sic] the Tenant has the responsibility for repair. [102] The appellants and the respondent rely on separate letters from G.E. Morgan Adjusters Ltd. in support of their positions. The appellants rely on the letter at Tab 00, p. 616. In that letter, G.E. Morgan, C.L.A., says: Under the Property Policy, was there coverage for accidental damage caused to the building as result of impact by motorized vehicle? In response to this, the answer is “yes”, ... [103] The respondents rely upon the letter from Mr. Morgan at Tab MM at pp. 612-13. In that letter, Mr. Morgan says at p. 612: What basically meant is that the policy of insurance is not designed to cover constant and continual losses causing damages which are considered to be cumulative or accumulative losses. [104] The appellants say that the arbitrator was not permitted to interpret the insurance policy but only the lease. have already addressed the issue of the arbitrator’s jurisdiction and the authority he had to do more than “interpret” the lease. [105] The arbitrator had jurisdiction to resolve disputes about provisions of the lease. To do so, he could, in my view, look at evidence to assist him in resolving dispute about the meaning of s. 3.02. He did not interpret the insurance policy. He reviewed the two Morgan letters. He may have chosen one meaning over the other if he considered the two letters inconsistent. Or he may have concluded there was coverage for single incident but not for “cumulative damage”. In either event, he concluded that the meaning of clause 3.02 was that there was no insurance for “perils insured against under policies of insurance effected by the Landlord ...”. [106] He therefore gave to clause 3.04 an interpretation which was not patently unreasonable. There is rational basis to support his conclusion. Lack of Notice [107] The appellants say that the arbitrator concluded, with no evidence before him, that the Tenant had to notify the Landlord of damage. [108] The arbitrator says on p. 26: find that the [sic] if the Tenant wants to avail it self [sic] of the benefits of the lease it must make know [sic] the damages in timely manner. The Tenant knows when there is damage. Although Mr. Smith knew there was damage early in the lease he did not know the extent nor did the Tenant advise him. [109] The appellants say that the arbitrator therefore added an additional provision to the lease requiring the Tenant to give the Landlord notice of damage. They say the Landlord had right to enter to do inspections and that right was unrestricted. They also say there was no refusal of entry to the Landlord by the Tenant. [110] The arbitration was to arbitrate disputes about provisions of the lease. As have said, this gives the arbitrator authority to do more than just interpret the meaning of the words of the lease. The dispute was over whether the Tenant had to give the Landlord notice to have the benefit of the Landlord’s insurance coverage. This is dispute about s. 4.02 of the lease which provides for insurance coverage for the “mutual benefit” of the Landlord and the Tenant. To resolve that dispute, the arbitrator concluded that for the Tenant to benefit it must give notice. To come to this conclusion, the arbitrator considered another disputed provision of the lease: s. 3.02, which provided for inspections by the Landlord. This is dispute about clauses or provisions of the lease which it was within the arbitrator’s jurisdiction to adjudicate upon. In doing so, he did not make a patently unreasonable finding. There is rational basis for this conclusion evident from his decision. CONCLUSION [111] In summary, I conclude that those portions of the arbitrator’s decision where he accepted estimates of costs of repairs and loss of rental opportunity and awarded damages and where he applied the equitable principle of estoppel are to be quashed. The application is dismissed with respect to the rest of the arbitrator’s decision. [112] There has been mixed success, but will accept written submissions from the parties if they cannot agree on costs.

A dispute arose between a landlord and a tenant about damage to the premises and whose responsibility it was to repair the damage. The dispute was referred to arbitration as per the terms of the lease. The arbitrator found the tenant liable for the damage and ordered the tenant to pay the landlord specified amounts for repairs and loss of rental opportunity. The tenant made an application for judicial review of the arbitrator's decision. Application allowed in part; portions of arbitrator's decision where he accepted estimates of costs of repairs and loss of rental opportunity, awarded damages and applied the equitable principle of estoppel quashed; application dismissed with respect to the rest of arbitrator's decision. The arbitration clause was a limited arbitration clause and the arbitrator did not have jurisdiction to award damages or apply the equitable principle of estoppel. Although greater deference is shown to decisions of consensual arbitrators than to those of statutory arbitrators, consensual arbitrators are not immune from judicial review if the means of reaching the result were unreasonable. The results reached within the arbitrator's jurisdiction were not patently unreasonable.

2_2001nssc171.txt

J. 2000 SKQB 36 Crim. No. 1820 J.C.Y. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF YORKTON BETWEEN: HER MAJESTY THE QUEEN and LAWRENCE FRED COTE APPLICANT Todd J. Wellsch for the respondent Martel D. Popescul, Q.C. for the applicant JUDGMENT PRITCHARD J. January 27, 2000 [1] On April 30, 1998, Lawrence Fred Cote was served with summons to appear on May 12, 1998 in Provincial Court in Kamsack to answer to two counts of fraud and one count of conspiracy to commit fraud. On May 9, another information was sworn charging Mr. Cote with four counts of unlawfully managing bingo (the “Bingo charges”). Mr. Cote was also summoned to appear in Provincial Court in Kamsack on May 12 with respect to the Bingo charges. On June 1, 1999 Mr. Cote was committed to stand trial on one of the fraud charges. He now applies to this court for a remedy pursuant to s. 24 of the Canadian Charter of Rights and Freedoms. The application is based primarily on Mr. Cote’s position that he has been denied the right to be tried on the fraud charge within a reasonable time. [2] There is no dispute on the facts. The parties agree that just over 22 months will have passed between the laying of the fraud charge and the scheduled trial date of February 28, 2000. The Crown also concedes that Mr. Cote has not been responsible for the delay which resulted from the Crown’s failure to provide timely disclosure. [3] The facts establish that Mr. Cote’s counsel was requesting Crown disclosure even prior to the first scheduled court appearance. letter dated May 11, 1998 includes the request: “Please fax or forward to us by courier or other means complete Crown disclosure as soon as possible.” further oral request for disclosure was made at the first court appearance on May 12, 1998. On May 12, the matter was adjourned to May 26 for election as Mr. Cote was not prepared to make his election without receipt of the requested Crown disclosure. [4] On May 22, 1998, the defence again wrote to the Crown seeking disclosure. The letter includes the statements: On May 11, 1998, wrote to you requesting complete Crown disclosure. To date, we have not yet received disclosure. My clients are anxious to proceed with this matter and therefore your urgent attention is required. [5] On the adjourned date of May 26, 1998, the defence had still not received the requested Crown disclosure and the matter was again adjourned; this time to June 9. An eight-pound box containing disclosure had been sent to the defence by regular mail on Friday, May 22 but was not received until later in the day on May 26 and too late to be reviewed prior to the scheduled court time on the 26th. [6] On June 9, 1998, the date of the third court appearance, an election was made and preliminary hearing date scheduled. Five days were scheduled for the preliminary hearing. Although review of the proceedings on May 26 indicates that the defence was available and prepared to proceed with the preliminary hearing in July or in August, it appears that between the Crown’s full schedule and the court’s schedule, the earliest that five consecutive days could be scheduled was commencing Tuesday, September 29. The preliminary hearing was therefore set to commence on that date. [7] On Monday, September 28, at approximately 11:00 a.m., the Crown contacted Mr. Cote’s counsel by telephone to request his consent to an adjournment of the preliminary hearing. The adjournment was requested on the basis that there was large volume of material that had not yet been disclosed to Mr. Cote. This was the first indication that the defence had that there was further disclosure to be made. Consent was not given, and the adjournment request was made to the court the following day. Following argument on the issue, the adjournment was granted. [8] In arguing against the Crown requested adjournment, Mr. Cote’s counsel indicated that if the Crown had made the adjournment request month or two earlier, he would have considered consenting as request at that time, “would have reduced the amount of time that this matter would have been delayed”. In granting the adjournment, the Provincial Court Judge stated: And so in the circumstances that present themselves am going to grant the Crown’s request for adjournment, and intend to be as specific as can in setting time limits here for the Crown to get all the stuff it intends to adduce into the Defence’s hands, and intend to accommodate the Defence within reason to the greatest extent that possibly can as to dates for the Preliminary Hearing. And would expect that any problems that the Crown may face or have or whatever as result of being required to do these things, that these would be very strictly interpreted against the Crown on such later occasion. (p. 34, ll. 11-23) [9] In response to subsequent questions from the court, Crown counsel indicated that he would have disclosure on the fraud charge completed in one to two weeks and disclosure on the Bingo charges completed by the end of October. On the understanding that the Crown would have full disclosure to him by the end of October, defence counsel indicated that he was prepared “to look at dates in November”. Unfortunately, the earliest available five consecutive days of court time in Kamsack was not until Monday, February 8, 1999. The preliminary hearing was adjourned to that date. [10] Between September 28, 1998 and February 8, 1999, the Crown made no disclosure on the Bingo charges and on February it properly entered stay of proceedings on those charges. Although the Crown purported to provide disclosure on October with respect to the fraud charges, it is agreed that the disclosure package of October 7, 1998, contained no information or documentation that had not previously been disclosed. The “additional disclosure” package contained several documents that were identical to the original disclosure except that the copies of the “new” documents were now copies of certified true copies. In fact, notwithstanding the Crown’s September 29 advice to the court and to the defence that there was further material to disclose on the fraud charges, no additional disclosure was made in the four-month period between the originally scheduled preliminary hearing date of September 29, 1998 and the adjourned date of February 8, 1999. [11] The preliminary hearing commenced on February 8, 1999. Upon cross-examination of the second Crown witness, an RCMP officer, it became apparent that documents on an RCMP file had not been disclosed. The Crown was given short adjournment to review the RCMP file but the short recess was insufficient time for the Crown to be certain that everything from the file had been disclosed to the defence. Following this recess, the Crown stated at p. 45 of the transcript: So can say with 100 percent certainty those continuation reports have been gone through and that all substantive information has been disclosed? No. can’t say that. [12] The court therefore adjourned the preliminary hearing to March 2, 1999 to allow the Crown to examine the RCMP file and to provide disclosure of any material that had not yet been disclosed. On March 2, 1999, after being satisfied that full disclosure was complete, the preliminary hearing was scheduled for continuation on May 31, 1999. The preliminary hearing proceeded on May 31 and June as scheduled. On June 1, 1999 one count of conspiracy to commit fraud and one count of fraud were dismissed and Mr. Cote was committed to stand trial on the remaining fraud count. [13] The indictment was filed June 29, 1999 and the transcripts of the preliminary hearing were filed July 22, 1999. pre-trial conference was held by telephone on November 19, 1999 and the trial date was scheduled for February 29, 2000. At the pre-trial conference, the defence advised of its intention to bring this application which was made November 26, 1999 and scheduled for hearing on January 6, 2000. [14] In R. v. Morin, 1992 CanLII 89 (SCC), [1992] S.C.R. 771, the Supreme Court of Canada has set out the factors court should consider in determining whether delay has been unreasonable. They are: 1. the length of delay; 2. waiver of time periods; 3. the reasons for the delay, including (a) inherent time requirements of the case, (b) actions of the accused, (c) actions of the Crown, (d) limits on institutional resources, and (e) other reasons for the delay, and 4. prejudice to the accused. Length of Delay and Waiver of Time Periods [15] The Supreme Court of Canada has indicated that the time period to be considered is the period of time from the charge to the end of the trial. In this case, the date of the charge is April 20, 1998, being the date the information was sworn. Just over 22 months will have elapsed from the date of the charge to commencement of trial scheduled for February 28, 2000. The record discloses that Mr. Cote at no time directly or indirectly waived his s. 11(b) right to be tried within a reasonable time and I therefore find that the period of delay to be considered in this application is the entire 22-month period. I also find that this 22-month period of delay is an exceptional period of delay and is of sufficient length to warrant an inquiry into the explanation for the delay. Reasons for Delay a. Inherent time requirements of the case [16] Mr. Cote acknowledges that there is certain level of complexity in all fraud cases. The exhibit book in these proceedings is comprised of some 220 exhibits. However, find no indication of any particular complexity above and beyond the norm for cases of this kind. Mr. Cote cites R. v. Stienwand et al. (1994), 1994 CanLII 3891 (SK QB), 124 Sask. R. 307 (Q.B.) and contends that in Saskatchewan, fraud cases generally proceed from the laying of the information to trial within 10 to 14 months. This has not been disputed by the Crown; in part, perhaps, because it is evident that if the preliminary hearing had not been delayed by an adjournment on September 29, 1998 and again on February 8, 1999 and then to March and again to May 31, for total delay of months, the trial would likely have been completed within approximately 14 months. [17] Given the facts in this case, am not satisfied that the inherent time requirements of the case require 22-month delay from charge to trial. b. Actions of Mr. Cote [18] have already noted that Mr. Cote is not responsible for any of the delay that has prevented this matter from proceeding expeditiously to trial. However, not only do find that he is not responsible for the delay, also find that he has actively pursued speedy trial. c. Actions of the Crown [19] The Crown has conceded its responsibility for the delay in this matter. It has attempted to explain the delay, but find the words of Mr. Justice Noble in R. v. A.K. (1996), 1996 CanLII 7056 (SK QB), 150 Sask. R. 185 (Q.B.), at p. 189, are appropriate in this case: While the Crown’s argument helps the court to understand some of the reasons it failed to make timely disclosure, it does not, in my opinion, excuse them from the delay that was the result of its tardiness. [20] The eight-month delay in proceeding with the preliminary hearing falls to the Crown as does the one-month delay from the first appearance on May 12 to the third appearance on June when sufficient disclosure had been made to allow Mr. Cote to make an informed election. Therefore, find that the total delay occasioned by the Crown’s failure to make timely disclosure amounts to nine months. d. Limits on institutional resources [21] The parties have not argued that limits on institutional resources have significantly contributed to delay in this case. e. Prejudice to Mr. Cote [22] Although the Crown acknowledges its delay in providing disclosure to Mr. Cote, it argues that the delay has not resulted in any real prejudice to him. Mr. Cote disagrees. He notes that prior to these charges, he had been extremely active politically. In 1996, he was elected chief of the Cote First Nation. He won by tie-breaking vote cast by the electoral officer. The validity of the election was challenged and as result of these outstanding charges he was unable to participate in the new election held in September, 1998. Although it is highly unlikely that even without the Crown delays that these proceedings would have been concluded in time for Mr. Cote to participate in the 1998 election, the outstanding charges have clearly prevented him from maintaining his previously active participation in band politics. [23] Mr. Cote notes that he is public figure in very small community of approximately 800 people. He says that the charges were highly publicized over the radio and over number of print media and that while these charges have been outstanding, he has been unable to obtain three jobs that he applied for. He also indicates that his finances have been severely affected and not only has he been unemployed and living on welfare for some 22 months, he has also spent 22 months feeling ashamed and extremely frustrated. His frustration has even turned to anger at times, particularly when he has been ready to proceed but the Crown has not. He indicates that he has attempted to have the matter proceed expeditiously because of his position within his community. Although he was once proud leader, he now feels like an outsider looking in. [24] Mr. Cote also indicates that during this period of delay, four witnesses have moved. Three of them moved in July, 1999 and the fourth more recently, in November, 1999. He has talked to one witness about returning for the trial but the witness will only do so if he is paid gas money and meal money, which Mr. Cote indicates he is financially unable to accommodate. [25] An application of this kind requires that the court balance the individual’s right to trial within a reasonable time with society’s interest in having the matter proceed to trial notwithstanding any delays in achieving that objective. In Morin, Madam Justice McLachlin commented on the practical application of the factors relevant to determining whether the right to trial within reasonable time has been breached. She states, at p. 810: The task of judge in deciding whether proceedings against the accused should be stayed is to balance the societal interest in seeing that persons charged with offences are brought to trial against the accused’s interest in prompt adjudication. In the final analysis the judge, before staying charges, must be satisfied that the interest of the accused and society in prompt trial outweighs the interest of society in bringing the accused to trial. The factors to be considered include the length of the delay, any waiver by the accused of the delay, the reasons for the delay and prejudice to the accused. But simply listing factors does not resolve the dilemma of trial judge faced with an application for stay on grounds of delay. What is important is how those factors interact and what weight is to be accorded to each. [26] Madam Justice McLachlin went on to comment that where the court has found unreasonable delay, the balancing of society’s interest in requiring an accused to stand trial and the right of the accused to trial within reasonable time is best achieved by examining whether the accused has been prejudiced by the delay. At p. 811, she states: The question is whether, on the facts of the particular case, the interest of society in requiring the accused person to stand trial is outweighed by the injury to the accused’s rights and detriment to the administration of justice which trial at later date would inflict. The interest of society in bringing those charged with criminal offences to trial is of constant importance. The interest of the accused, on the other hand (and the correlative negative impact of delay on the administration of justice) varies with the circumstances. It is usually measured by the fourth factor prejudice to the accused’s interests in security and fair trial. It is the minimization of this prejudice which has been held to be the main purpose of the right under s. 11(b) of the Canadian Charter of Rights and Freedoms to be tried within reasonable time: R. v. Conway, 1989 CanLII 66 (SCC), [1989] S.C.R. 1659, at p. 1672. An accused person may suffer little or no prejudice as consequence of delay beyond the expected and normal. Indeed, an accused may welcome the delay. On the other hand, an accused person can suffer great prejudice because of the delay. Where the accused suffers little or no prejudice, it is clear that the consistently important interest of bringing those charged with criminal offences to trial outweighs the accused’s and society’s interest in obtaining stay of proceedings on account of delay, because the consequences of the delay are not great. On the other hand, where the accused has suffered clear prejudice which cannot be otherwise remedied, the balance may tip in the accused’s favour and justice may require stay. How is prejudice sufficient to outweigh the important public interest in bringing those charged with criminal offences to trial to be established? The matter is essentially question of fact, dependent on the circumstances of the case. As Sopinka J. points out, the length of delay itself in many circumstances may not support the inference of sufficient prejudice to justify stay of proceedings. It is well known that accused persons may seek to delay trial and to use the “protective shield” of s. 11(b) as an “offensive weapon”, as Cory J. put it in R. v. Askov, 1990 CanLII 45 (SCC), [1990] S.C.R. 1199, at p. 1222. Where no inference as to prejudice can be drawn from the length of the delay, or where the most reasonable inference is the other way, the accused may have to call evidence if he or she is to displace the strong public interest in bringing those charged with an offence to trial. [27] The balancing of competing interests is difficult, but in this case, I find that the prejudice to the accused has been substantial and sufficient to tilt the balance in favour of requiring a judicial stay. [28] The background to this application is noteworthy and significant in that from day one, Mr. Cote has been unwavering in his desire for speedy trial. This is not a case of the defence steadfastly and unreasonably refusing to consent to Crown requested adjournments but quietly welcoming the resulting delay; or, of the defence otherwise seeking to delay the trial and to use the “protective shield” of s. 11(b) as an “offensive weapon”. The delay here was occasioned solely by the Crown’s failure to provide disclosure in circumstances that suggest that, despite Mr. Cote’s constant request for disclosure, the Crown simply failed to take the necessary steps to accomplish the task within reasonable time. These circumstances make any prejudice suffered by Mr. Cote all the less acceptable, particularly because the problem with disclosure was an ongoing one. [29] The record discloses that Crown counsel found it took him over two weeks to read and digest the eight pounds of documents that were sent by regular mail to the defence on May 22. And yet, these eight pounds of documents were only mailed on the Friday before the following Tuesday’s court date. In such circumstances, and even if the disclosure had arrived prior to the opening of court on May 26, given the quantity of material provided at such late date, it was impossible for Mr. Cote to be ready to enter plea on May 26. second adjournment was obviously necessary before plea could be entered. [30] The record also discloses that although the defence was prepared to have the preliminary hearing set for dates in July or August of 1998, the first scheduled date for commencement of the preliminary hearing was delayed to September because of scheduling difficulty. The September preliminary hearing date was set on June which gave the Crown four months to prepare. This was generous period of time which should have given the Crown ample opportunity to provide full disclosure well before commencement of the preliminary hearing. Unfortunately, this did not happen. In requesting an adjournment of the preliminary hearing on September 29, Crown counsel stated: The reason for the adjournment is, is that it has come to my attention that there is still some material and in respect to the one matter, with respect to the gaming, quite volume of material that has still to be disclosed. It has to be organized at this stage and disclosed. And with respect to the other matters there is also some further material to be disclosed. My learned friend advised me that he would be appearing here today. It’s my understanding that he will be objecting to the Crown’s request for an adjournment. Just on that point, Your Honour, point out that this is the first time the matter was set down to be heard in Court. There is quite large volume of material that feel should be not only do feel that by law must be disclosed, and would think that my learned friend would want to see that material before proceeding. If he’s objecting to the adjournment can’t imagine that he would want to proceed without seeing it. But in any event, as I’d indicated there is this material that must by law be disclosed and has to be disclosed and must meet that obligation, and in order to do so require some, some time. would, if the Court is prepared to grant this adjournment, be prepared to undertake to make this material available to my learned friend within reasonable time period. And would think, would think that the material would be able to be organized and copied within month at least. There is, from my understanding and just the exhibit list that got, quite vast amount of material that needs to be, well, looked at and copied, organized and sent off. And it is for that reason that make this request at that time at this time. (pp. 19-20) [31] The defence was ready to proceed with the preliminary hearing on September 29. But, notwithstanding that five court days for the preliminary hearing had been scheduled for four months, the Crown was apparently not even close to being ready to proceed, nor did it give any real explanation for its failure to have complied with its self-acknowledged legal obligation to provide disclosure. [32] In Canada, an accused person is presumed innocent until proven guilty in court of law. In reality, this fundamental principle is often overlooked by the public and especially in highly publicized cases where public figure is involved. Here, as a result of the Crown’s unexplained delay in providing disclosure, Mr. Cote will have endured an unnecessary additional nine months of unemployment, economic hardship and other prejudice in the form of embarrassment from the numerous media reports of the charges. And, this occurred notwithstanding that Mr. Cote did everything in his power not to have the process delayed. On balance, as indicated, the prejudice occasioned by this delay outweighs the interest of society in bringing Mr. Cote to trial. There will therefore be an order directing a stay of the charge in the indictment dated June 28, 1999 that was filed June 29, 1999.

The accused, Cote, applied for remedy pursuant to s.24 of the Charter of Rights stating that he was denied the right to be tried on a fraud charge within a reasonable time. Twenty-two months passed between the laying of the charge and the trial date. Cote was not responsible for the delay and actively pursued a speedy trial. The delay was caused by the Crown's failure to provide timely disclosure. HELD: The charge was stayed. In applying the decision of the SCC in R. v. Morin, the court found that 22 months is an unreasonable and exceptional period of delay and is of sufficient length to warrant an inquiry. This case had no particular complexity above the norm for cases of this kind and did not require this delay. Cote did not directly or indirectly waive his s.11(b) right to be tried within a reasonable time. Cote was subject to substantial and sufficient prejudice by the delay. He suffered damage to his political career, embarrassment from media reports, unemployment, and economic hardship. The court balanced the individual's right to be tried within a reasonable time with society's interest in having the matter proceed to trial despite delay. Here the defence was not seeking to delay the trial and use the protective shield of s.11(b)as an offensive weapon.

b_2000skqb36.txt

nan 2001 SKQB 466 Q.B.G. A.D. 2000 No. 3347 J.C. R. IN THE QUEEN'S BENCH JUDICIAL CENTRE OF REGINA BETWEEN: SHIRLEY STONECHILD and WESTFAIR FOODS LTD. DEFENDANT Henri Chabanole for the plaintiff Patrick A. Kelly, Q.C. for the defendant JUDGMENT BALL J. October 18, 2001 [1] The plaintiff seeks damages for personal injuries sustained when she slipped and fell while grocery shopping in the defendant's Superstore in Regina on March 28, 2000. The defendant places in issue:(a) Whether it is liable to the plaintiff for the injuries she sustained in this slip and fall accident; and(b) The degree of personal injury sustained by the plaintiff as a result of the accident. [2] The plaintiff's claim followed the simplified procedure in Part Forty of The Queen's Bench Rules. The plaintiff's affidavit asserted that on March 28, 2000 she was shopping in the produce department of the defendant's Superstore located at 1621 Albert Street in Regina when at approximately 3:45 p.m. she suddenly slipped on a puddle of water on the floor and fell heavily to the ground, injuring her lower back, right knee and left ankle. The plaintiff remained on the floor until an ambulance arrived. She was then taken to the Pasqua Hospital Emergency Department, where she was bandaged, given painkillers and advised to rest and see her family doctor if her injuries did not improve. The plaintiff subsequently consulted her family doctor, who prescribed more potent painkillers and recommended physiotherapy. [3] On April 7, 2000 the plaintiff received the first of five physiotherapy treatments over five week period at Regina Sports and Physiotherapy Clinic. The plaintiff's affidavit asserts that she did not receive more treatments due to the fact that only five physiotherapy treatments were covered by Saskatchewan Health Plan and she could not afford to take additional treatments which may have helped her recovery. Moreover, her affidavit asserts that she decided doctors could not help her and she "tried to get better on her own". During cross-examination, the plaintiff explained that she had chosen to rely upon her faith in the Lord for healing her injuries. [4] Certain assertions in the plaintiff's affidavit relating to her injuries and treatment were inconsistent with the physician notes and medical reports filed in evidence and with information elicited during cross-examination. Those inconsistencies are not relevant to this decision and need not be set out in any detail. Suffice it to say that some of the injuries the plaintiff claimed occurred as a result of her slip and fall on March 28, 2000, appear to have been at least in part the aggravation of pre-existing conditions. [5] Taken as whole, the evidence indicates that the most significant injury sustained by the plaintiff as result of her slip and fall on March 28, 2000 related to sprain of her left ankle, for which the physiotherapist recommended certain exercises. The preponderance of the evidence indicates that that injury has not yet been resolved, primarily because the plaintiff declined to accept available treatment or follow the medical advice she received. [6] The defendant acknowledged that the plaintiff slipped and fell in the produce department at the Superstore on March 28, 2000 and estimated the time of the accident at approximately 4:00 p.m. Affidavit evidence filed on behalf of the defendant acknowledged that there was small amount of water on the floor in the vicinity of where the plaintiff fell. Nevertheless the defendant asserts that the fall was caused, at least in part, by the fact that the plaintiff was wearing worn running shoes without laces. The plaintiff acknowledged that there were no laces in her running shoes, but denied that they were badly worn or that they contributed in any way to her fall. [7] number of affidavits filed by the defendant established that regular cleaning regimen had been implemented in the store. It consisted of regular maintenance of the floors in each department by employees. Specifically, in the produce department employees were responsible to sweep or wet-mop aisles and floor areas at least once per hour. A "sweep log" was kept for each department and entries of these cleaning activities were made and initialled by the employees performing the work. Supervisors were responsible to ensure that these logs were properly kept and the schedules properly adhered to. [8] In addition to the above procedures followed by the produce department employees, the defendant employed General Services employees who were not attached to any particular department. Their responsibilities included regular inspections of the sales floor area in every department to ensure that all areas were free of any hazards such as spills, debris and obstructions. This began one-half hour before store opening each day. At 10:15 a.m., 2:45 p.m., 5:00 p.m., 6:00 p.m. and 8:15 p.m. each day the General Services employees began at the front entrance of the defendant's store and swept all common areas of the sales floor, swept and mopped the main aisles on both sides of the checkouts, the aisles at the rear of the store and the general merchandise promotional aisles. The General Services employees also maintained log. [9] An affidavit of Jack Ferwerda, the Superstore manager at the time of the accident, exhibited the General Services employee logs and "Retail Store Sweep Log" relating to the produce department for each day during the period March 27, 2000 to April 1, 2000, respectively. The logs indicated that floors in the produce department were regularly cleaned at least once per hour during the period ending April 1, and with very few exceptions the cleaning was by means of both dry and wet mop. On March 28, 2000 the produce department was both dry and wet mopped total of 16 times between 9:00 a.m. and 9:20 p.m. Each cleaning was by means of both dry and wet mop. At 1:43 p.m., 2:30 p.m. and 4:15 p.m. the floors in the produce department were cleaned by Leon Herperger, an employee of the defendant whose affidavit confirmed the cleaning and who was cross-examined by the plaintiff's counsel at the trial. The sweep log also indicated that at 12:50 p.m. and 2:52 p.m. the floor was wet and dry mopped by Cory Orban. No affidavit sworn by Mr. Orban was filed. Mr. Ferwerda, who had resigned as an employee of the defendant on or about June 30, 2001, testified that Mr. Orban had earlier left his employment with the defendant and could not be located. Mr. Herperger stated in his affidavit that since leaving the defendant's employment in September of 2000 he had not seen Mr. Orban and did not know his whereabouts. [10] In addition to the evidence of Mr. Ferwerda and Mr. Herperger, the affidavit evidence of two assistant managers employed at the time of the accident confirmed the cleaning regimen in place at the Superstore. CONCLUSION [11] The defendant, as owner and occupier of the Superstore, had a duty of care to the plaintiff. The judicial authorities have most often based the duty of care upon the invitor/invitee standard. In Maxay v. Ramsay Drugs Ltd. (1991), 1991 CanLII 7734 (SK QB), 89 Sask. R. 191 (Q.B.), Maurice J. proposed four part inquiry to determine whether or not an occupier has breached its duty of care to an invitee. [3] In determining whether there was breach of the duty, four part inquiry is conducted: 1. Was there an "unusual danger"? 2. If so, did the occupier know or have reason to know about it? 3. If he did, did the occupier use reasonable care to prevent damage from the "unusual danger"? 4. And if he did not, was the invitee contributorily negligent? [12] The defendant does not contest the presence of water on the floor in the vicinity of where the plaintiff slipped and fell although it does not concede that it was the water which caused the plaintiff to slip. [13] There have been many cases that have found slippery substance such as water or produce on the floor of grocery store to constitute an unusual danger. On the basis of all of the evidence, I am satisfied that the plaintiff has met the burden of establishing on a balance of probabilities that she slipped because of water on the floor of the store. The defendant did not know the water was there, but did know that water and other substances could be on the floor of the produce department, and also knew that reasonable steps must be taken to safeguard against the very type of accident experienced by the plaintiff. The evidence does not support an inference that the plaintiff's footwear caused or was a contributing factor to the slip and fall. These findings leave only the third of the four "Maxay" principles to be addressed. [14] The main defence offered by the defendant was that it used reasonable care in maintaining its premises, and as result was not in breach of its duty to the plaintiff as invitee. The bulk of the defendant's evidence, which dealt with the maintenance of clean aisles at the store, was intended to establish that the defendant had implemented and adhered to reasonable policy prior to the accident which injured the plaintiff. [15] If Mr. Orban's entry on the sweep log is accepted as evidence that the produce department floors were swept at 2:52 p.m., and if it is accepted that the plaintiff slipped and fell at approximately 3:45 p.m. (the plaintiff's estimate) or at approximately 4:00 p.m. (the defendant's estimate) it follows that the plaintiff slipped and fell approximately 53 to 68 minutes after that cleaning. Thus, the defendant says, this case cannot properly be distinguished from series of cases in which virtually the same procedures as those followed by the defendant in this case have been previously determined by this Court to have met the standard of care required (see, for example, Leibel v. Westfair Foods Ltd. (1999), 1999 CanLII 12649 (SK QB), 181 Sask. R. 267 (Q.B.); Kosteroski v. Westfair Properties Ltd. et al. (1997), 1997 CanLII 17181 (SK QB), 155 Sask. R. 37 (Q.B.); Hale v. Westfair Foods Ltd. (1955), 1995 CanLII 5780 (SK QB), 127 Sask. R. 223 (Q.B.); Mollenhauer v. Westfair Foods Ltd. (1996), 1996 CanLII 6959 (SK QB), 140 Sask. R. 172 (Q.B.); Ludwig v. Canada Safeway Ltd. (1986), 1986 CanLII 2980 (SK QB), 46 Sask. R. 116 (Q.B.) and Beaman v. Canada Safeway Ltd. (1993), 1993 CanLII 8928 (SK QB), 115 Sask. R. 100 (Q.B.)). [16] The plaintiff, argues however, that an adverse inference should be drawn by virtue of the defendant's failure to adduce evidence by Mr. Orban confirming that he had in fact cleaned the floor of the produce department at 2:52 p.m. and made the entry on the sweep log. Presumably, the adverse inference would be that the floor was not in fact cleaned at that time and that the entry was false. The result would be that the plaintiff's fall occurred some 75 to 90 minutes after the produce department floor had been swept-a deviation from the defendant's own policy significant enough to put this case in the category of those in which the Court has found liability: see, for example, Wilson v. Westfair Foods Ltd., 2000 SKQB 217 (CanLII); (2000), 192 Sask. R. 317 (Q.B.); Sebo v. Westfair Foods Ltd., 2000 SKQB 10 (CanLII); (2000), 2000 CanLII 19954 (SK QB), 190 Sask. R. 271 (Q.B.) and Grant v. Westfair Foods Ltd. (1998), 1998 CanLII 13561 (SK QB), 167 Sask. R. 133 (Q.B.). [17] An unfavourable inference can be drawn when, in the absence of an explanation, party fails to adduce the evidence of witness who would have knowledge of the facts and who would be assumed to be willing to assist that party. In the same vein, an adverse inference may be drawn against party who does not call material witness over whom he or she has exclusive control and does not explain it away. Such failure is said to amount to an implied admission that the evidence of the absent witness would be contrary to the party's case, or at least would not support it (see Murray v. City of Saskatoon (1952), 1951 CanLII 202 (SK CA), D.L.R. 499 at 505-6). [18] The defendant's Affidavit of Documents and Witnesses as required by the simplified procedure was sworn by Mr. Ferwerda on July 24, 2001. Schedule "D" to that affidavit listed the names and addresses of persons who might reasonably be expected to have knowledge of the events. Included in that list was Cory Orban, whose address is shown as being in care of The Real Canadian Superstore at 2055 Prince of Wales Drive in Regina. Taken at face value, this document seems to indicate that Mr. Orban remained in the employ of the defendant and under its control as late as July 24, 2001. However, Mr. Ferwerda, who resigned from his employment with the defendant on June 30, 2001, testified in cross-examination that Mr. Orban was not employed by the defendant and that efforts to locate him had not been successful. In their submissions counsel advised the Court that neither party had been able to locate Mr. Orban prior to the trial. [19] On their face, the sweep logs do not raise any suspicion or require any explanation. More specifically, the sweep log for March 28, 2000 does not deviate in any way from the sweep logs filed for the days before and after, with uniform and regular entries by both Mr. Herperger and Mr. Orban on all days during the time frame in question. The absence of Mr. Orban's evidence has been explained and the preponderance of the evidence is that he was neither employed nor under the control of the defendant. Accordingly, no adverse inference should be drawn by virtue of the fact that the defendant has not filed separate affidavit sworn by Mr. Orban. This finding is consistent with the decision of the British Columbia Supreme Court in almost identical circumstances in Bludau-Kugler v. Vancouver Community College (1998), 1998 CanLII 6709 (BC SC), 45 B.C.L.R. (3d) 74. [20] The preponderance of the evidence therefore establishes that the floor where the accident occurred had been swept very close to one hour before the plaintiff's unfortunate fall. A regular program of maintenance had been conducted by the defendant in that area of the store. The overall policies and practices of regular maintenance of the floor areas combined with the responsibility of each employee to carry them out were substantially the same, if not identical to, those considered by this Court in the Mollenhauer and Leibel group of cases. [21] I conclude that the defendant met the legal standard of care imposed upon it in the circumstances and is not liable for the injuries suffered by the plaintiff. To find otherwise would be to impose a standard upon the defendant in this case that is inconsistent with that previously imposed by this Court in almost identical circumstances. [22] Accordingly, the plaintiff's claim is dismissed with costs.

The plaintiff sought damages for personal injuries to her lower back, right knee and left ankle sustained when she slipped and fell while grocery shopping in March 2000. The defendant acknowledged the plaintiff fell in its produce department, but did not concede the water on the floor caused her to slip; the cause was, in part, her worn running shoes without laces. Liability and degree of personal injury were in issue. The claim proceeded under the simplified procedure under Part Forty of the Queen's Bench Rules. HELD: The claim was dismissed with costs. 1)The defendant had a duty of care to the plaintiff as owner and occupier. The courts have most often based the duty of care on the invitor/invitee standard. Maxay v. Ramsay Drugs proposed four-part inquiry to determine whether or not an occupier has breached its duty of care. 2)The plaintiff established on a balance of probabilities that she slipped because of water on the floor. The evidence did not support an inference that her footwear caused the slip or was a contributing factor. 3)An adverse inference was not drawn from the defendant's failure to adduce evidence confirming its employee had in fact cleaned the floor. The employee was no longer employed by the defendant. Neither party was able to locate him. 4)Some of her injuries were, in part, the aggravation of pre-existing conditions. The most significant injury was sprain to her left ankle, which had not been resolved primarily because the plaintiff declined to accept available treatment and failed to follow medical advice. The inconsistencies in her affidavit and the physician notes or medical reports respecting her injuries and treatment were not relevant to this decision. 5)A 'sweep log' was kept for each department and employees made regular inspections of the sales floor area in every department. The plaintiff slipped and fell about an hour after the last sweeping. A regular program of maintenance was conducted in the area. The overall policies and practices of regular maintenance and responsibility of each employee were substantially the same if not identical to those considered in the Mollenhauer and Libel group of cases. The defendant met the legal standard of care imposed in the circumstances and was not liable for the plaintiff's injuries. To find otherwise would be to impose a standard that is inconsistent with that previously imposed by this court in almost identical circumstances.

e_2001skqb466.txt

nan Q.B. A.D. 1998 No. 1878 J.C.S. IN THE QUEEN‘S BENCH JUDICIAL CENTRE OF SASKATOON BETWEEN: CHAD KOCHAN and STANLEY CHUBACK and TROY CHUBACK, o/a SPORTS PAGE BAR GRILL RESPONDENTS None of the parties were represented by counsel JUDGMENT BAYNTON J. March 19, 1999 [1] The appellant/plaintiff‘s claim in Small Claims Court was dismissed by the learned Provincial Court judge for want of prosecution. The small claims summons was returnable on August 6, 1998 and the respondents/defendants appeared in court on that date in response to it. The appellant/plaintiff appeared in court to present his claim on August 7, 1998, the day following the day it had been dismissed. The appellant/plaintiff was aware that the date on the summons was August 6. But he appeared in accordance with the particulars of a note previously given to him by court staff indicating that the trial of his claim would take place on August 7, 1998. It appears the misunderstanding occurred because the date and court room number were inverted on the note. The respondents/defendants declined to consent to an order directing a new trial even if the order awarded costs to them. [2] A plaintiff should not be deprived of his day in court because of an institutional scheduling error which arose through no fault on the plaintiff‘s part. defendant in the circumstances should consent to an order directing new trial so that the claim can be presented and its merits determined by the court. plaintiff in such circumstances has no recourse but to appeal to this court and incur the attendant expense to obtain the relief to which he is entitled. [3] Although the facts of the appeal before me are somewhat different, the principles set out in Horosko v. Huber (1993), 1993 CanLII 8893 (SK QB), 108 Sask. R. 303 (Q.B.) are applicable. [4] The appeal is allowed and a new trial is ordered in Small Claims Court. There is no order as to costs.

The appellant's claim was dismissed for want of prosecution. The date and courtroom number for the trial on the note given to him by court staff were inverted and he appeared in Small Claims Court the day following its dismissal. The defendants declined to consent to an order directing a new trial. HELD: The appeal was allowed and a new trial ordered in Small Claims Court without order as to costs. A plaintiff should not be deprived of a trial because of an institutional scheduling error. The principles set out in Horosko v. Huber were applicable.

e_1999canlii12544.txt

J. Q.B.M. A.D. J.C. R. IN THE QUEEN'S BENCH JUDICIAL CENTRE OF REGINA BETWEEN: JEAN ROSE ZACHARUK and RUSSELL Y. ZACHARUK RESPONDENT P.E. Pacholek for the applicant R.B. Hunter for the respondent JUDGMENT MacLEOD J. March 25, 1994 The parties married February 24, 1952, and were divorced in 1984. The matrimonial property was settled by the parties and consent order giving effect to that settlement was presented to and granted by the court on December 19, 1985. Clause 14 of that order is as follows: 14. The pension of the Respondent at the University of Regina, more particularly described by reference to the Social Insurance Number of the Respondent, 613-582-097, shall be divided as follows: (a) The Applicant shall receive vested interest in the pension to the extent described in this order and the University of Regina is hereby directed to give effect to this vesting order and to make all monthly pension payments for the Applicant directly from the pension plan to her; (b) If the Respondent retires at the normal retirement date of June 30, 1993, the share of the pension to be received by the Applicant shall be 40%; (c) If the Respondent retires at age 60, the share of the pension to be received by the Applicant shall be 44%; (d) If the Respondent retires between age 60 and age 65, the share of the pension to be received by the Applicant shall be calculated on pro rated basis between the percentages of 40% and 44% such that if he retires, for example, at age 62.5 years, the percentage to be received by the Applicant will be 42%; (e) If the Respondent retires voluntarily prior to age 60, the share of the pension to be received by the Applicant shall be 48% and the specific intent of this order is to encourage the Respondent to continue in his employment until at least age 60; (f) If the Respondent dies prior to his retirement, the Applicant shall receive the greater of $100,000.00 or pro rated share of the death benefit of the University of Regina pension plan on the same percentage as set out above with the remaining share of the Respondent to be paid to his estate; (g) In the event that either party requires further clarification of the intentions of the parties with respect to the division of the University of Regina pension plan, either party hereto hereby has leave to apply to this Honourable Court for further directions. Russell Zacharuk retired from the University ofRegina effective June 30, 1993. He elected to receive monthly payments for life with guaranteed period of 15 years. As result, Jean Zacharuk has been receiving monthly payments from July 1, 1993, of $1,543.13 which is 40% of the total pension. Russell Zacharuk receives $2,314.69, or 60% of the total pension payable. Jean Zacharuk would like to receive her vestedinterest as a lump sum benefit. Russell Zacharuk does not consent to this. He perceives the pension plan arrangement to be something of tontine. Russell Zacharuk is 65 years old now and Jean Zacharuk turns 65 this year. Based on a comparative historyof their two families, Russell Zacharuk expects to outlive hisformer wife and on her death he expects thereby to regain thethen remainder of the pension asset. The parties apply for "a further clarification oftheir intentions". The court prefers to treat the application as one for an order interpreting the previous order, and consequential declarations and directions. Paragraph 14(a) provides that Jean Zacharuk is to receive "a vested interest in the pension to the extent described in this order". The order provided for vesting to the applicable extent, depending on future event, namely, the date of his retirement or the date of his death if it occurred before his retirement. His retirement was merely the pivotal event which determined which paragraph was applicable. Thereafter, matters were and are beyond his control. The provision for the monthly payments in clause 14(a) is merely direction to the University of Regina, and was not and is not intended to define the form of payment or restrict or limit the vesting. The following orders, declarations and directions are granted: 1.Under clause is 14(a), the applicable clause, the applicant received vested interest. 2.By electing retirement at "the normal retirement age of June 30, 1993" the pension was vested in Jean Zacharuk to the extent of 40% under paragraph 14(b). 3.This interpretation of clause 14(a) is supported by clause 14(b) which refers to "the share of the pension to be received by the applicant". 4.The University of Regina is to make monthly payments to Jean Zacharuk of her vested share. Whether this is converted to lump sum payment or continues as monthly payments is exclusively the concern of the University of Regina and Jean Zacharuk. 5.For greater certainty, it is hereby declared that: (a)The share vested in Jean Zacharuk is not now in any way under the control of Russell Zacharuk. (b)The share vested in Russell Zacharuk is not now in any way under the control of Jean Zacharuk. (c)Russell Zacharuk is not beneficiary of her share in the plan to hold otherwise would be to deprive her of an important attribute of ownership of her vested share and her vested interest on her death would not become his property under the consent order. (d)Jean Zacharuk is not beneficiary of his share for the same reasons. (e)The order of December 19, 1985, does not contemplate joint ownership or any implied right of survivorship. Accordingly, the 40% share, having vested in JeanZacharuk, is a share she may deal with without reference to,or the consent of, Russell Zacharuk. This order shall not be acted on until the expiration of 15 days, and not then if there shall be an appeal. Because the parties contemplated the need to return to court for further directions, the successful party will have costs, but they are hereby fixed at $300.00.

The parties divided their matrimonial property in 1985 by agreement as confirmed in a consent order. The order provided that when the husband retired, the wife would receive, as her vested share of his pension, 40% of his benefit. The order also provided that the parties could apply for further directions as necessary. After the husband's retirement, the wife sought to receive her share of the pension from the employer as a lump sum. The husband objected, claiming that he was entitled to any remaining benefit from her share in the event she should predecease him. The wife applied for directions. HELD: The wife is entitled to her share of the pension in any form permitted by the terms of the pension plan. She is also entitled to leave her interest in the pension to a named beneficiary, without reference to or the consent of the husband.

4_1994canlii5226.txt

nan QUEEN’S BENCH FOR SASKATCHEWAN Date: 2013 07 04 Citation: 2013 SKQB 264 Docket: U.F.C. No. 1020 of 1993 Judicial Centre: Saskatoon, Family Law Division BETWEEN: SITHEMBILE BERYL NKWAZI and GEOFFREY NKWAZI Counsel: Sithembile Beryl Nkwazi petitioner, on her own behalf Jason R. Brunton for the respondent FIAT DUFOUR J. July 4, 2013 1) The respondent is medical specialist who seeks to expunge child support arrears that have accumulated as result of his not paying child support for many years. He is 72 years old and practising internal medicine and rheumatology in the United States. He is looking to retire in the next few years and does not want the issue of child support arrears to interfere with his plans. 2) The petitioner is 63 years old, deeply in debt, on long term disability and still caring for one of their children who will likely never be independent because he suffers from serious mental illness. The application 3) The respondent seeks to vary two orders, one that was issued in 1998 and the other that was issued in 2001. He wants to expunge the arrears in respect of each and also seeks a declaration that their three children are no longer children of the marriage. Brief history 4) The petitioner originally hails from Zimbabwe and the respondent from Malawi. Although the dates are not absolutely clear in the materials, they lived together in England for several years prior to getting married in 1983. The petitioner was registered nurse and the respondent was in residency in rheumatology and internal medicine. At some point they moved to Moose Jaw where the respondent completed his residency. 5) They had three children during their years together: Mandela was born in October, 1978 and the twins Bogani and Thabani were born in September, 1984. The respondent moved to Ontario after the parties separated in 1988 and took job with medical clinic for about $175,000 year. The children stayed with the petitioner in Moose Jaw. The petitioner was not able work as registered nurse in Saskatchewan until she upgraded her education, which she did slowly over the years as and when she could afford it. 6) From the very beginning, the respondent vigorously resisted paying much in the way of child and spousal support. He was adamant that he should not pay more than $2,000 month total because she and the children ate simple, inexpensive African diet and did not need more than that. He was especially chafed by spousal support obligations. The petitioner averred, and the respondent did not dispute, that he said to her “you are not my relative why should support you?” 7) The first few years after the separation were marked by continual stream of vigorously contested applications over spousal and child support. The respondent retained prominent Regina lawyer Dr. Morris Schumiacher. It appears that no expense was spared, with Dr. Schumiacher filing lengthy dissertations of law and fact tomes even on applications where very little money was at issue. The petitioner hired E.F.A. Merchant who was almost always successful, obtaining orders for both spousal and child support. Neither of these two prominent lawyers comes cheaply. 8) Obtaining support order, however, was not synonymous with obtaining support. The respondent often simply stopped paying the ordered support for periods of time or paid less than ordered. Sometimes the petitioner had to resort to welfare to provide for the children. She was unable to put the children into extracurricular activities such as soccer and, as she put it, they “lived on sick leave, holiday pay and borrowing.” 9) The respondent left his stable, lucrative employment in Ontario in 1994 and moved to Milwaukee. Even though there was great demand in Canada for doctors with his specialties, he said that the prospects were better in the United States. 10) The legal wrangling over child and spousal support continued. By 1997 the respondent was $46,000 in arrears, most of it being in respect of child support. With nothing coming in and in desperate straits, the petitioner brought an application to have him cited for contempt. This was the eighth contested application in as many years. With the respondent gearing up to resist once again, and her being unable to afford more legal bills, the petitioner accepted his offer of $24,000 rather than fight for the $46,000 to which she was entitled. 11) Then, just six months later, and despite just having shed $22,000 of support arrears, the respondent brought an application to reduce his child support obligation of $2,500 month because, he said, he was earning less money than he had earned in the past. Wilkinson J. carefully analysed the materials, which included engaging in labourious and tedious comparison of the U.S. and Canadian taxation systems and costs of living. In the end, she imputed income to him of $177,000 and ordered him to pay $2,589 per month in child support. 12) The respondent was back year after that, again seeking to reduce his child support obligations. This time it was because the medical clinic for which he was working in Milwaukee had closed its doors. Rather than take other employment in the United States or in Canada, he opened his own clinic and made very little: $59,000 in 1999, nothing in 2000 and $15,000 in 2001. The respondent had not been paying child support for some time by this point and the petitioner was tapped out. She could not afford lawyer and relied on the kindness of her Regina lawyer Jim Vogel, who represented her at no charge (as an aside, the petitioner exhibited Mr. Vogel’s file to her most recent affidavit. Even though he was not being paid, and did not expect to be paid, he went to extraordinary lengths for not inconsiderable length of time in an effort to have the respondent pay the petitioner that which he owed. He did not send her bill.). Wilkinson J. reduced his support obligations somewhat, imputing income to him in the amount of $109,912. Her fiat of March 7, 2001 read: The essence of the respondent father’s argument is that the only possible solution available to him, as specialist in internal medicine, was to start up his own medical practice at the age of 59, after many years of salaried employment. ... On many past occasions the respondent has acknowledged the competitive nature of the medical community in Milwaukee and there are significantly more physicians there than there are per capita in Saskatchewan or in other parts of Canada. ... His sole incentive for moving to Milwaukee in the first place was the opportunity to earn more income than he could in Canada. His prospects in Milwaukee have greatly diminished, while there is currently an urgent need for specialists in Canada. ... To embark on private practice at the age of 59 in foreign country where one possesses neither the security of citizenship nor the guarantee of the right to work permanently, is not the most reasonable option in all of the circumstances. ... while the respondent was working in Canada, he had an average annual income, after expenses, of $109,912 by his own calculations. As the most conservative estimate of his income earning capacity, this is, in all the circumstances, reasonable income level to be imputed to the respondent for present purposes. 13) Wilkinson J. ordered that the respondent pay $1,683 in s. basic child support pursuant to the Federal Child Support Guidelines [Divorce Act Regulations, SOR/97-175] and further $249 per month in s. expenses. The respondent had not been paying child support on the 1998 order and he did not pay on this one either. He violated the order right off the bat: in the last six months of 2001, he paid total of $383; he paid $2,335 in 2002, $3,742 in 2003 and $298 in 2004. 14) Actually, to say that the respondent “paid” the support is not accurate. In fact, almost every dollar that was applied to child support was taken from the respondent by garnishment process or the interception of federal government monies directed to him. He did not pay child support willingly it had to be snatched away from him. 15) Now the respondent is back before the Court, this time seeking to expunge the arrears that have accrued on both the 1998 and 2001 orders in preparation for his retirement. The petitioner is on long‑term disability. She has been diagnosed with generalized anxiety disorder and depression (backed up by up-to-date medical reports). 16) There are arrears in respect to both orders. will first deal with the arrears that accrued pursuant to the July 20, 1998 order because there is no dispute as to the calculations. Income was imputed to the respondent in the amount of $177,000 and he was ordered to pay $2,589 per month in child support. He paid the ordered amount for while but by September, 1999 was paying only fraction of that. In 2000, he paid only $1,317 of the $31,068 he was obliged by order to pay. He was in arrears of approximately $40,000 by the time of the March, 2001 order. Over the next 11 years, the Saskatchewan Maintenance Enforcement Office (MEO) managed to collect more than $30,000 in dribs and drabs by garnishment process or the interception of money. Neither party disagreed with MEO’s calculations that the arrears in respect to the 1998 order were $7,008 as at April, 2013. The respondent’s positions in respect of the March 7, 2001 order 17) The respondent’s first argument is that he actually overpaid child support because, he says, his child support obligations should not be based on the last imputed income of $109,912 but, rather, on his actual income over the years. He supplied voluminous financial documentation to show that his actual earned income was: 1998 $105,195 2005 $64,577 1999 $59,037 2006 $62,743 2000 $0.00 2007 $83,383 2001 $15,130 2008 $73,942 2002 $20,600 2009 $74,793 2003 $43,003 2010 $88,085 2004 $59,000 2011 $87,754* *this does not include his pension income, which brings his actual 2011 income to just under $105,000 18) The respondent calculates that using the Guideline table on these incomes, he actually overpaid child support by $40,000. take his argument to be that, as matter of right, his child support obligations should be calculated using the income he actually earned. I do not accept that assertion. Let us back up moment. The 1998 order imputing his income to be $177,000 was varied on March 7, 2001 when his income was imputed to be $109,912 and this resulted in lowering his monthly child support obligation to $1,683. The 2001 order has not been varied and therefore his child support obligations are still calculated on an income of $109,912. His actual income is only relevant to my considerations as to whether ought to exercise my discretion to rescind or reduce the arrears that have accrued. will address that issue later in this fiat. 19) The respondent’s second argument is that if do not accept his primary argument which do not all arrears should be expunged. He does not state in his application just how much the arrears are that he wants expunged, but it appears that he believes them to be $32,865. They are actually much, much higher. The respondent’s mistake is that he does not understand the way MEO functions. MEO puts out documents called statements of arrears. The statements have two columns one listing how much money ought to have been paid each month and the other showing how much was actually paid each month and then tallies the difference (the arrears) when someone asks for statement. Here, the MEO statement shows the arrears to be $32,865 as at October, 2004. The MEO statement does not record ongoing monthly child support obligations of $1,689 after that date. That does not mean and this is where the respondent made his mistake that his child support obligation ceased as at October, 2004, it simply means that MEO has stopped recording it on the statements. It is commonplace for MEO to stop recording ongoing child support payments once the children have turned 18. That is what happened here. The respondent’s child support obligation under the 2001 order continued even though MEO did not record it on its statement. Calculating the amount of child support the respondent ought to have paid 20) The first step is to determine the applicable Guideline support payable based on the number of their children who were children of the marriage during different time periods. “child of the marriage” as defined in the Divorce Act, R.S.C. 1985, c. (2nd Supp.) is one who is under the age of majority or over the age of majority “... and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life”. child remains “child of the marriage” until order of the Court or agreement of the parties (Smith v. Smith, 2007 SKQB 294 (CanLII), 301 Sask.R. 75). The respondent asserts, and the petitioner does not dispute, that Mandela ceased to be child of the marriage in 2002 when he completed his university studies. They also agree that Bogani ceased being child of the marriage in 2008 when she discontinued her university studies. There is no agreement in respect of Thabani. 21) The respondent says that Thabani ceased being child of the marriage in 2002 when he turned 18. The petitioner disagrees, and so do I. Thabani suffers from a serious psychotic illness and has lived with the petitioner continuously. The petitioner exhibited recent medical report that states Thabani “continues to receive treatment for Schizophrenia, the effects of which have left him incapable of living independently at the present time.” Based on that opinion and the petitioner’s affidavit, find that Thabani remains child of the marriage (See: Briard v. Briard, 2010 BCCA 431 (CanLII), 94 R.F.L. (6th) 33). 22) In summary, I find that Mandela ceased to be a child of the marriage on June 30, 2002 and Bogani ceased being a child of the marriage on June 30, 2008 (June 30 being the approximate date of the end of the school year). Thabani continues to be a child of the marriage. Using the respondent’s imputed income of $109,000 and the dates upon which Mandela and Bogani ceased to be children of the marriage, it is possible to calculate the amount of child support owed by the respondent: July 1, 2001 June 30, 2002: (although the order was issued in March, 2001, it was not effective until July 1, 2001). This is the period during which all three children were children of the marriage. The s. Guideline support payable was $20,196 ($1,683 12) and the s. support was $2,988 ($249 12) for total arrears of $23,184. July 1, 2002 June 30, 2008: Bogani and Thabani were children of the marriage during this period. The s. Guideline support for this period is $1,493 per month for total of $107,496 ($1,493 72). There is not enough evidence for me to calculate s. expenses with any degree of accuracy, so will not include them. July 1, 2008 June 30, 2013: only Thabani was child of the marriage during this period. The s. Guideline amount is $927 per month for total of $55,620 ($927 60). 23) In summary, the total amount the respondent should have paid under the 2001 order is $186,300. Child support collected from the respondent between July 1, 2001 April 12, 2013 24) Money was collected from the respondent in respect of the 2001 order as follows: 2001 (July to December) 383 2007 2013 In total, the respondent paid $9,562 under the March 7, 2001 order. Total arrears 25) The respondent avers that he “helped Mandela” with the cost of his university education and that he paid Bogani’s university tuition. He did not indicate how much that was and he provided no receipts. will give him no credit for any amounts that he might have paid in this respect. He also deposed that he gives Bogani $7,250 year to help her with her rent. The petitioner says that he loaned Bogani that amount of money in 2012 and expects to be paid back. In any event, such loan(s) or gift(s) occurred after Bogani ceased to be child of the marriage and is therefore not relevant. 26) The arrears under the 1998 order are $7,008 and the arrears under the 2001 order are $176,738 ($186,300 - $9,562). His total arrears are $183,746. Should the arrears be expunged or reduced? 27) The starting point in considering an application to expunge arrears is that, in the absence of some special circumstance, arrears should only be expunged where the payee has established on balance of probabilities that he or she cannot pay and will not in the future be able to pay, the arrears. 28) After that determination is made, the Court usually considers variety of factors, such as those found in the decision of M-E. Wright J., Wurmlinger v. Cyca, 2003 SKQB 152 (CanLII), 231 Sask.R. 282, at para. 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. 29) In addition, many courts consider the criteria set out 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 (“D.B.S.”) with some modifications. In Jean‑Francois v. Barnes, 2012 ONCJ 124 (CanLII), [2012] O.J. No. 1080 (QL), the Court phrased the four primary factors for the Court to consider in applications to expunge arrears (at para 58) as: a) The reason for the delay in bringing the motion to change. b) The conduct of the parties. c) The circumstances of the child, both past and present. d) Any undue hardship to either party. (See as well: Vaughan v. Vaughan, 2007 ONCJ 21 (CanLII), [2007] O.J. No. 138 (QL); Collins v. Garmoe, 2012 ONCJ 244 (CanLII), [2012] O.J. No. 1872(QL); Galloway v. Cassino (Barrett), 2008 ONCJ 577 (CanLII), [2008] O.J. No. 4525 (QL); and Corcios v. Burgos, 2011 ONSC 3326 (CanLII), [2011] O.J. No. 2422 (QL)) 30) will begin with the threshold factor: the onus is on the respondent to establish on balance of probabilities that he cannot now pay, and will not in the future be able to pay, the arrears. The respondent comes up well short. In fact, his materials indicate that he can pay off the arrears in few years without altering his lifestyle. 31) The respondent’s financial statement shows that his 2011 income (employment and pension) was $104,450. The expense portion of his financial statement shows annual expenses of $90,560 which, he says, would leave him with an annual surplus of $13,890. After reviewing his itemized expenses, however, find that the surplus far exceeds that amount. will deduct the following of the respondent’s “expenses” from his calculations: $11,000 for new roof in 2011 that is one time expense $1,920 for “other” some nature of explanation is required $7,250 for rent and transportation for Bogani the respondent’s desire to gift or loan money to Bogani is discretionary and will not allow him this item as an expense. $35,000 for child support. suspect that the respondent is referring to that which he thinks are his total arrears. Actually, $5,427 was collected from him in 2011 but because my purpose in examining the respondent’s financial statement is to determine how much is available for the payment of child support arrears, will remove this item from his expenses. 32) After removing the above from the expense portion of his financial statement, the respondent had about $58,000 left over after paying his living expenses in 2011. Further, note from the respondent’s income tax returns that he owns house that does not have mortgage and which was valued at more than $200,000 for the purpose of the property tax assessment. 33) Considering the above, I cannot find that the respondent does not have the ability to pay the arrears, which I have calculated to be $183,746. The respondent says that he is “hoping to retire in the next two years or so ... If am unsuccessful in this application, will have to continue to work into my eighties....” He overstates the case based on his 2011 income and expenses, he can pay off the arrears in about three years. 34) Although it is hardly necessary after this finding, will comment on some of the other factors set out in Wurmlinger and D.B.S. 35) The respondent says that he did not have the ability to pay the arrears at the time that they were incurred. Not so. He had the “ability” to pay the arrears because he could have taken employment that paid him at least $110,000 year. He knew that he was expected to maximize his earning capacity but simply chose not to. Now, some 12 years later, he argues that the Court should use his actual, rather than his imputed income. The fact remains that rather than seek employment that could pay him handsomely, he chose to flail away in private practice for years and earn much less than he otherwise would have. The law as it pertains to imputed income has not changed. In V.G.B. v. E.H., 2004 SKQB 280 (CanLII), 250 Sask.R. 272, Ryan Froslie J. (at para. 17) endorsed principles set out in an article by author Julien Payne, which principles include: 4. Persistence in unremunerative employment may entitle the court to impute income. 5. parent cannot be excused from his or her child support obligations in furtherance of unrealistic or unproductive career aspirations. 6. As general rule, parent cannot avoid child support obligations by self‑induced reduction of income. 36) These principles hold true today. The respondent has provided no reason why he chose the financially less rewarding route and therefore see no reason to vary Wilkinson J.’s order that he pay child support based on an imputed income of $109,912. 37) now turn briefly to the D.B.S. factors. The respondent did not say why he brought this application to expunge arrears. am somewhat perplexed, but more so intrigued. With few rare exceptions, he has not been complying with any of the many support orders that have issued over the last 25 years or so. He managed to get away with paying only about 5% of that which he owes pursuant to the 2001 order. Why is he concerned now? do not know but doubt it is because he wants to clear his conscience. 38) The arrears have mounted considerably over the years and, in some cases, it might be appropriate to reduce them because of the passage of time. No so here. From the respondent’s pattern of non‑payment, have no hesitation in finding his conduct to be blameworthy, as described in D.B.S., at paras. 106 and 107: [106] ... would characterize as blameworthy conduct anything that privileges the payor parent’s own interests over his/her children’s right to an appropriate amount of support.... [107] ... payor parent who knowingly avoids or diminishes his/her support obligation to his/her children should not be allowed to profit from such conduct ... 39) Then there is the issue of whether there is undue hardship to the parties. The respondent is putting money away for his retirement. He says that he does not know how long he will be able to work because he has “recently been battling prostate cancer and had surgery in 2008 with respect to the cancer was battling. also suffer from high blood pressure and hypertension, which am currently being treated for.” He provides no independent verification to support his claims of illness or how his medical condition might affect his ability to work or earn an income. The petitioner says that Mandela told her that the cancer has been in remission for five years an assertion with which the respondent does not disagree. do not consider the respondent’s claims of illness to be worthy of much consideration. 40) As indicated above, the respondent will have few lean years until he has paid off the arrears of child support. Yes, that will be bit of hardship. But not an undue hardship. For an example of undue hardship, consider the petitioner’s plight. 41) The petitioner has struggled for 25 years to get the respondent to pay child support. She was not very successful. She and the children often lived like paupers, accepting welfare when she was simply unable to earn enough to pay for the children’s care. Now she is 63 years old, suffering from anxiety and depression and on long term disability. She receives $43,000 year. But for his child support arrears, the respondent is in the black. The petitioner is not even close. She still makes monthly payments on the $106,000 of debt that remains from that which she borrowed to support the herself and the children during the many periods of time that the respondent stopped paying support. She continues to care for Thabani, who has serious psychotic illness and may be dependent on her for the rest of her life. She receives some money from Social Services to help defray the costs of Thabani’s care but she has so much debt to service that she cannot put money away for Thabani’s care after she passes. That is undue hardship. 42) Now the respondent seeks to extinguish the arrears because he wants to prepare for his retirement. Even if he has to work longer than he wants, so be it the petitioner should receive the full amount that, but for his dodging his obligations, would have been available to her when she was raising their children. It is repugnant to even suggest reducing the arrears. 43) order as follows: 1. The respondent’s application to reduce or expunge child support arrears is dismissed. 2. As of April 30, 2013, the respondent’s arrears under the orders of Madam Justice Wilkinson dated March 7, 2001 and July 20, 1998 are fixed at $183,746. 3. The children Mandala and Bogani are no longer children of the marriage. 4. The child Thabani remains a child of the marriage. 5. Commencing June 1, 2013 and continuing on the first day of each month thereafter until further order of the Court, the respondent shall pay basic child support in the amount of $927 per month. 44) Given that the petitioner was self represented, there shall be no order as to costs. J. G. D. Dufour

The parties had three children during their marriage. After the marriage ended in 1988, the husband respondent, medical specialist, moved from Moose Jaw to Ontario where his annual income was about $175,000. The children stayed with the petitioner wife in Moose Jaw. She was not able to work as registered nurse until she upgraded her education, which she slowly did as she could afford it. She and the children lived on very little income and relied upon social assistance because the respondent often did not pay child support. The parties were regularly in court. In 1994, the respondent left his position in Ontario and moved to Milwaukee, believing his prospects were better in the U.S. However, he lost his position in Milwaukee and opened his own clinic. His income dropped to as little as $15,000 in 2001. In this application, the respondent applied to vary two support orders, one made in 1998 and the other issued in 2001. He sought to expunge the arrears in respect of each and a declaration that the three children are no longer children of the marriage. His reason for seeking to have the arrears expunged was because he, now 72, wanted to retire in the next couple of years. The petitioner, 63, deeply in debt and on long-term disability, was still caring for one of their children because he suffers from schizophrenia. HELD: The Court held that two of the children had ceased to be children of the marriage as of 2002 and 2008 respectively. With respect to the third child, the Court found that as a result of the serious and long-term mental health problems suffered by him, he remained a child of the marriage. The Court then found that the respondent's arrears in respect of the 1998 child support order were $7,000. Based upon the respondent's imputed income of $109,000 per year established by the Court in its 2001 order, and the dates upon which the two children ceased to be so under the Divorce Act, the Court calculated the amount of child support owed by the respondent at $186,300. The Court rejected the respondent's argument that he could not afford to pay the arrears because his expenses left him with an income surplus of only $13,000. The Court discounted most of the claimed expenses and found that the respondent had $58,000 at his disposal and therefore had the ability to pay his arrears. The Court found that the respondent had chosen to minimize his earning capacity by staying in the U.S. in private practice and thus the respondent could not assert that the Court should use his actual income rather than his imputed income to vary the amount of child support he was ordered to pay in 2001. The undue hardship that the petitioner had suffered for 25 years constituted the most compelling reason for the Court to refuse to reduce or expunge the respondent's arrears. The application was dismissed and the respondent ordered to pay arrears and to pay child support in the amount of $927.

e_2013skqb264.txt

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 040 Date: February 25, 2014 Information: 2451090 Location: Melfort Between: Her Majesty the Queen Appearing: Tom Healey For the Crown Todd Parlee For the Accused DECISION ON PEACE BOND APPLICATION J. RYBCHUK, INTRODUCTION [1] The defendant, R.N.S., is a repeat violent and sexual offender who was still serving a sentence for sexual assault and out on a weekend parole pass when he committed his last sexual assault offence against his 14 year old niece. He was therefore, returned to prison and served his entire sentence to warrant expiry before being placed on s. 810.1 peace bond recognizance upon his release from prison in 2010, and then again in 2012. The Crown now applies for third recognizance. The issue is whether the recognizance should be granted again. [2] Corporal Jason Teniuk of the RCMP swore an Information that he has reasonable grounds to believe that R.N.S. will commit either serious personal injury offence or sexual assault offence involving someone under the age of 16 years and requests that R.N.S. be bound over to keep the peace and be of good behaviour. [3] The Consent of the Attorney General has been filed with the Court as required pursuant to s. 810.2(1) of the Criminal Code. [4] The Crown called two witnesses at the hearing: 1. Corporal Jason Teniuk, 13 year member of the RCMP, in charge of the recently constituted High Risk Offender\\Serious Violent Offender Response Unit, who affirmed his belief that R.N.S. will re-offend and provided his reasons therefor; and 2. Janice Woytiuk, Parole Officer with 29 years experience working with Correctional Service of Canada, who outlined R.N.S.’s history in the federal prison system. It was also her belief that based upon this history, he remains high risk to re-offend both sexually and violently. [5] binder of documents was filed and admitted into evidence by consent of the parties as Exhibit P-1. These documents were referred to and relied upon heavily by the Crown witnesses in their testimony. The binder was comprised mainly of: 1. Documents prepared by the Correctional Service of Canada relating to R.N.S.’s last sentence and stay at the Prince Albert Federal Penitentiary from 2007 to 2010, including: a) Criminal Profile Report; b) Correctional Plan Initial-Intake; c) Progress and Assessment Reports; d) Psychological/Psychiatric Assessment Reports; and e) National Parole Board Canada Detention Extension Decisions. 2. Transcripts of Sentencing Proceedings and Hearings for offences committed by R.N.S.’s since his release from prison in 2010 to 2013. 3. Criminal Record of R.N.S.. [6] R.N.S. testified in his defence that his life is going much better now and he feels pretty good, except that he believes he is still being penalized by the conditions in his recognizance and that his life is on trial to everyone. [7] Whether the analysis is regarding recognizance pursuant to s. 810.1 or s. 810.2, there are common underlying principles applicable to both. R.N.S. is not charged with criminal offence. No criminal conviction flows from person entering into such recognizance. The recognizances involved are designed to be preventative rather than punitive measures. While both impose restrictions upon an individual’s freedoms, such restrictions are only those as are necessary to assist the individual from committing future offences or misconduct (see R. v. Loysen, 2006 SKQB 290 (CanLII); R. v. Bilida, 1999 ABQB 1016 (CanLII)). [8] No triggering event is required to engage s. 810 hearings, but defendant’s previous criminal convictions are relevant to support the application for recognizance (see R. v. Budreo, 2000 CanLII 5628 (ON CA), 2000 46 O.R. (3d) 481 (ONCA) at para. 44; as adopted by Wilkinson J. in R. v. Loysen, supra, at paras. 17 and 18). There were nevertheless some triggering events here with R.N.S.’s repeated violations of his s. 810.1 recognizances, including most recently on November 6, 2013, and his violent outburst in Court on October 15, 2013 where he told the Crown prosecutor “you’re fucking bitch” and another person in the courtroom to “fuck you”, “fuck you, man” and “Yeah. Fucking, take these off.” [9] The Crown bears the persuasive burden of proof in peace bond applications as outlined in ss. 810.2(3) and s. 810.1(3) of the Criminal Code, both of which provide as follows: (3) If the Provincial Court Judge before whom the parties appear is satisfied by the evidence adduced that the informant has reasonable grounds for the fear, the judge may order that the defendant enter into recognizance to keep the peace and be of good behaviour for period that does not exceed 12 months. [10] Therefore, the Crown has the onus of proving on balance of probabilities that Corporal Teniuk’s beliefs that R.N.S. will re-offend are reasonable. There is both subjective and an objective component to his beliefs that must be established by the Crown (see R. v. Soungie, 2003 ABPC 121 (CanLII) at para. 46; R. v. Bird, 2010 SKPC 25 (CanLII) at para. 5). Defence counsel does not dispute Corporal Teniuk’s subjective belief that R.N.S. will commit another serious personal injury or sexual assault offence. The sole issue to be determined is whether Corporal Teniuk’s belief is reasonable in the circumstances (i.e. that an objective person armed with the same knowledge as Corporal Teniuk would agree that his fears are reasonable). [11] In R. v. Teneycke, 2008 SKQB 239 (CanLII), Madam Justice Rothery adopted the test as outlined in Nobel v. Teale (2005) 2005 CanLII 44305 (QC CS), 36 C.R. (6th) 258 (leave to appeal to Que. C.A. dismissed 2005 QCCA 1174 (CanLII)) at para. 2: the fear to be established is that the defendant will commit personal injury offence imports component of imminency. (Note 9: R. v. Budreo, 1996 CanLII 11800 (ON SC), 104 C.C.C. (3d) 245 (Ont. Gen. Div.) at p. 263): Judges should take care before exercising their preventative jurisdiction. Both ss. 810 and 810.1 speak of reasonably grounded fear that the defendant “will” commit an offence. To my mind, as matter of legislative construction, this takes the appropriate threshold notch above simple demonstration that defendant is more likely than not to commit an offence. reasonably grounded fear of serious and imminent danger must be proved on balance of probabilities. [Emphasis added to both quotes] [12] Further, in R. v. Budreo, (2000) 2000 CanLII 5628 (ON CA), 142 C.C.C. (3d) 225 (Ont. C.A.) Justice Laskin stated at para. 51: the phrase “fear on reasonable grounds” in section 810.1(1) connotes reasonably based sense of apprehension about future event. [Emphasis added] [13] The Information prays for two recognizances:1. Count #1: Section 810.2 of the Criminal Code serious personal injury offence; and2. Count #2: Section 810.1 of the Criminal Code sexual assault offence in respect of someone under the age of 16 years. [14] The Crown has indicated it is only looking for one recognizance and it does not matter under which section they obtain it. So, will consider them in the order in which the counts are presented in the Information. COUNT #1: SECTION 810.2 [15] ‘Serious personal injury’ offence is defined in s. 752 of the Criminal Code as indictable offences for which the offender may be sentenced to imprisonment for 10 years or more, 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 upon another person; or various sexual assault offences. [16] Corporal Teniuk and Janice Woytiuk both testified in an honest, open and straightforward manner. They both reviewed the voluminous binder of materials filed as Exhibit P-1 in this hearing and based upon their observations and experience came to the same conclusion with respect to R.N.S.. [17] They gave detailed account of R.N.S.’s criminal history. They did not seem to have any particular agenda with him. They testified to both the programming R.N.S. took and the programming he refused to take to address the serious risks identified in his Intake Assessment and Plan and Progress and Assessment Reports. They both outlined the risks and concerns they have with R.N.S. that remain untreated to this day. [18] Ms. Woytiuk provided her observations of R.N.S. while he was in prison, including in particular the last months to his warrant expiry date after he was refused release by the Parole Board of Canada on statutory remission after having served two-thirds of his last sentence for sexual assault. [19] Corporal Teniuk’s role in the RCMP High Risk Offender/Serious Violent Offender Response Unit is to monitor serious violent offenders upon their release from prison and assess whether s. 810 recognizance orders should be sought. After reviewing the binder of materials filed as Exhibit P-1 and relying on his own personal experience in reviewing and dealing with matters of this sort, he determined that another recognizance for R.N.S. would be in order. [20] too, have no hesitation in relying upon Exhibit P-1 in reaching my decision. The defendant provided the Court with the case of R. v. George, 2007 ONCJ 16 (CanLII) to argue the proposition that the very nature of the Correctional Service of Canada and the Parole Board of Canada documentation filed as Tabs through in Exhibit P-1 “streamlined” or dictated very strongly the outcome of all future assessments that the defendant should not be released from prison or subject to recognizance, as they are all built on the same foundational material (i.e. that the defendant was assessed as high risk to re-offend) and should therefore, be disregarded. [21] was not provided with the documentation that was prepared relative to the defendant in that case, Mr. George’s own individual circumstance and filed with the Ontario Court of Justice. So was unable to review and compare and contrast them against the documentation that was prepared relative to R.N.S.’s own individual circumstances in this case and filed with the Saskatchewan Provincial Court. They are standard format documents common to federal penitentiary services across Canada, but Ms. Woytiuk testified that there still exists differences in the documentation and how it is prepared from jurisdiction to jurisdiction across Canada, with differing authors and differing offenders in differing circumstances. am therefore, unable and refuse to make generality of that sort. [22] also find the facts apparent from that case distinguishable from the facts of this case. Ms. Woytiuk testified that she has worked with the Correctional Service of Canada at the Federal Penitentiary in Prince Albert for 29 years, the last 19 years of which as parole officer. She has plenty of experience in the areas of assessing and supervising inmates while institutionalized. They are required by law under the Corrections and Conditional Release Act S.C. 1992, c. 20 and Corrections and Conditional Release Regulations (SOR/92-620) to prepare most of the documentation contained in Exhibit P-1. They are professionals doing their job. Their focus is on helping offenders to minimize their risk of re-offending through programmes designed to assess their needs. They utilise variety of programming, treatment and tools to help offenders identify, understand and develop plans to address the behaviours that get them into trouble and the prison system. They develop Correctional Plan Reports that intervene in need or risk areas of the offender to steer them from intake to release. However, it is up to the offender to avail themselves of these tools or programming and treatment options. They can either progress or digress. The offender’s security risks can either be downgraded or upgraded based upon their actions, or lack thereof, while in prison. [23] The Progress Reports contained in Exhibit P-1 are unbiased and present in professional and accurate manner R.N.S.’s history. They present in an objective manner both favourable and unfavourable information relative to the defendant. [24] Ms. Woytiuk acknowledged that the reports indicate that alcohol remains major substance abuse risk for the defendant, but that marihuana and drug use appears to have slowed down over the years and is only minor now. [25] The Exhibit P-1 documents also bear out Ms. Woytiuk’s testimony that: 1. R.N.S. did participate in moderate intensity Aboriginal sex offending, substance abuse and domestic violence programming on his first federal sentence and before she became involved in his case; 2. He commenced his sentence with less than Grade 10 education and obtained his GED and was trying for Grade 12; and 3. During his stay in prison he only had minor institutional infractions, but noted institutional behaviour means very little in relation to behaviour in the community. [26] Ms. Woytiuk also explained any missing pages from the documentation such as picture of the defendant and standard letter to governmental agencies that also received the package of materials. [27] As such, find Exhibit P-1 to be professional and objective documentation properly admitted into evidence as full exhibits by consent of the parties, and properly considered by hearing judge in making decision whether to grant recognizance. They do not dictate the outcome in relation to R.N.S.’s own unique circumstances. [28] R.N.S. did take some Aboriginal programming in the Pathways Range/Unit at the Saskatchewan Penitentiary, but that fell apart for variety of reasons and R.N.S. was removed from the range before Ms. Woytiuk came along. That was good effort on R.N.S.’s part, but it is not enough to address his underlying risk factors of substance abuse, domestic violence and sexual offending. [29] After carefully considering all of the testimony and materials filed at the hearing, find that an objective person armed with the same knowledge would agree that the fears of Corporal Teniuk, and indeed Ms. Woytiuk too, that R.N.S. will commit serious personal injury offence are reasonable in the circumstances of this case. That is, they both have the required subjective and objective fear and apprehension that he will commit serious violent or sexual offence and those fears are serious and imminent for the following reasons: 1. R.N.S. has 59 prior criminal convictions comprised of: 12 assault related, including sexual assaults, and also common assaults against his spouse; impaired/exceed .08; drive while disqualified; 13 breaches of recognizance (s. 145); escape lawful custody; fail to attend/appear; breaches of recognizance (s. 811). 2. R.N.S. entered the criminal system at young age. He continued to re-offend and became entrenched there. There was no de-escalation in the violence or success in getting back on track. The sexual assaults got worse over time. 3. R.N.S. has over 20 failures to comply (i.e. breaches) of lawful court orders. The three escapes from lawful custody are important and speak to his lack of self control and impulse behaviour. For example, on one of them R.N.S. had only been allowed to work on work crew in prison for five days when he attempted to escape. police officer came to arrest him and he ran off into the bush. 4. R.N.S.’s 12 assault related convictions indicate serious history of violence and potential for future harm. It gives an insight to his degree of impulsivity and inability to telegraph his behaviour. The victims of his violence are almost always women and defenceless or passed out. 5. R.N.S. testified that his life was pretty good now. The same cannot be said for the victims of his various assaults, such as his own father who lost an eye. 6. R.N.S. was still serving his last sentence for his second sexual assault offence and was out on weekend pass from halfway house when he committed his third sexual assault against his own 14 year old niece. He also breached conditions of his release and committed three other assaults at the same time. R.N.S. has demonstrated history of re-offending within short order of his release from prison, even while under supervision, which is to be taken very seriously. 7. R.N.S. had already completed moderate intensity programming for sexual offending on his prior sexual assaults when he committed his third sexual assault. So he is now assessed as high risk to re-offend sexually and required to complete high intensity sex offender programming. R.N.S. has never availed himself of such programming either during the almost last four years he served in prison, nor afterwards in the almost four years since his release from prison. This is in spite of all the encouragement he received from parole officers, including Ms. Woytiuk to take the programming. She testified he was always resistant to it. do not believe the defendant’s testimony that it was only moderate intensity course that was being offered to him and that Ms. Woytiuk was in his words, “bullshitting you”. R.N.S. admitted in cross-examination that he did not review the documents contained in Exhibit P-1. Had he, he would have clearly seen that it was high intensity sex offender programming that was being offered to him while in prison, which he refused to take. 8. R.N.S. has serious alcohol abuse problem. He is almost always intoxicated when he commits offences. It has plagued him for over 20 years. He has had every opportunity to address this issue and participate in programming, but refuses to do it. He believes that talking to his uncle who is an elder couple of times week, as he has been for the last number of years, is satisfactory way to deal with this glaring issue. With respect, this is simply not satisfactory way to deal with it and has not been satisfactory way to deal with it over the last 20 years while he committed all the offences on his Criminal Record. 9. R.N.S. would not indicate to Corrections officials where he was going upon his release. Although there is no legal obligation upon him to do so, this does provide some insight to his mind set. 10. Since R.N.S. was released from prison in 2010 he has committed five more Criminal Code offences (i.e. two drive while disqualified and three breaches of his s. 810.1 recognizances). R.N.S. also volunteered in cross-examination that he was recently charged with, but acquitted of, another assault offence. am entitled to consider this unproven prior misconduct in assessing threat imposed by defendant in s. 810.2 application, but such information is by its very nature, of suspect probative value and was accorded little weight in my balanced judicial consideration. 11. R.N.S. argues that his most recent breaches of his s. 810.1 recognizances are minor in nature (e.g. not carrying copy of the recognizance on him) and should not be taken too seriously in deciding whether further restrictions need to be placed upon him. However, when examined in the context of his criminal past, breach of section 810.1 recognizance must be seen as particularly serious matter and principles of deterrence and public protection are of heightened importance as the community faces potentially significant risk to the safety of its members when person bound by section 810.1 recognizance fails to comply with it (see R. v. Helary (2007) 2007 NLCA 47 (CanLII), 225 C.C.C. (3d) 265 (Nfld C.A.) at paras. 10 16; R. v. Ballantyne, 2009 SKCA 27 (CanLII)). 12. Since R.N.S. was released from prison, 26 of his 36 months have been spent in jail. 13. The Psychological/Psychiatric Assessment Reports contained in Tabs and of Exhibit P-1 indicate that R.N.S.’s high risk areas are: a. Domestic violence; b. Substance abuse; and c. Sexual offending. He did not sufficiently address these high risk issues, especially the substance abuse issue which affects the others. He was and continues to be high risk to re-offend both violently and sexually. 14. Following R.N.S.’s release from prison, the Crown obtained further Progress Report from Probation Officer, Jenna Milne, on July 12, 2011 which is contained in Tab of Exhibit P-1 and sets out that R.N.S.’s Saskatchewan Primary Risk Assessment is in the 92nd percentile, which means that only percent of Saskatchewan offenders were assessed as having more risk factors. As well, R.N.S.’s Ontario Domestic Assault Risk Assessment of domestic violence recidivism scored within the highest range, which means that no man scored higher and 93 percent scored lower, and 70 percent of men with scores in this range re-offend against their partners. 15. R.N.S.’s Static 99-R assessment of risk to recidivate sexually scored in the high risk category, which falls into the 94.9 to 97.8 percentile for being charged or convicted of another sexual offence. Offenders with the same score have been found to sexually re-offend at rate 25.4 percent in five years. This percentile range means that 94.9 to 97.8 percent of sex offenders in these samples scored at or below R.N.S.’s score. Conversely, 2.2 5.1 percent of the sample sex offenders scored higher. 16. Probation Officer Jenna Milne’s report concludes with the following paragraph: Following numerous meetings with the subject, this writer is of the opinion that R.N.S. portrays negative attitude in regard to the current conditions of his s. 810.1 Recognizance. He has indicated that he finds the conditions restricting and therefore, he is actively placing his own personal agenda before the safety of the community in which he resides. Having R.N.S. reside in the community without strict conditions, is jeopardizing the safety of the young people within the community. [30] trial judge hearing peace bond application must balance competing interests of the safety of the community against the defendant’s individual liberty being restricted. On the facts of this case, the balance of convenience favours strongly the safety of the community over R.N.S.’s right to be left alone. [31] gave very little weight to R.N.S.’s evidence in general for some of the same reasons indicated above, but also because: 1. He admitted he did not read the Exhibit P-1 binder of materials that had been provided to him through his lawyer. 2. He could remember and provide details of matters that benefited him, but could not recall or minimized details of matters that did not benefit him, such as: a) when and how many times he may have assaulted the mother of his children; and b) he did not have clue about when and what forms of counselling he took (e.g. whether it was for the first, second or third offence). 3. He told the Court on January 20, 2014 that he was not an alcoholic when three months earlier on October 15, 2013 he told the Court he was an alcoholic. 4. He gave evidence that contradicted other more credible evidence contained in Exhibit P-1 and testimony of Ms. Woytiuk. For example, he claimed that he did not attend AA because it is not offered in the Saskatchewan Penitentiary, when it is. [32] also do not believe R.N.S.’s evidence that he did not take the high intensity training because it is not offered by the Saskatchewan Penitentiary and that only moderate training was offered. Instead, accept the Correctional Services of Canada and Parole Board Canada documentation and Ms. Woytiuk’s testimony that it is offered by the Saskatchewan Penitentiary and he simply refused to take it because he was concerned about how the other inmates would treat him knowing that he was in that programme. All other sexual offenders face the same stigma and this is no excuse for him not to take the programming. [33] believe Ms. Woytiuk when she says that R.N.S. never did submit required transfer application to another federal institution to take the high intensity sexual programming and that when he did mention it, it just seemed to be superficial to her and could not be accomplished within his timelines for release anyway. also do not believe R.N.S. when he says he only met with Ms. Woytiuk less than four times. Ms. Woytiuk indicates that she knew him from before her direct involvement and that she met with him frequently. [34] R.N.S. also testified that he does not have any anger management issues. However, he became quite agitated on the stand to the point that extra court security staff needed to be called in. am also convinced that he still has untreated anger management issues which are evident from the transcript of proceedings in Provincial Court held in Tisdale on October 15, 2013 at Tab of Exhibit P-1, page 21: The Court: Okay, so you are remanded to November 12. If you talk to Mr. Parlee and there’s another date that the Crown and Defence can bring it forward to, then they can do that. Alright. So you can talk to Mr. Parlee about that. Thank you. R.N.S.: You’re fucking bitch. The Court: And that’s November 12 R.N.S.: You know that eh. The Court: at 9:30 in Male: Hey. Watch your mouth. R.N.S. Hey, hey. Come on. The Court: Melfort. R.N.S.: Do it. Male: Show little respect, why don’t you, R.N.S.. R.N.S.: Do it. Male: R.N.S.. R.N.S.: Come on. Male: R.N.S., have seat. Show little respect. (Very loud disturbance in courtroom) The Court: We’re going to adjourn court Ms. O’Connor: Thanks. The Court: for five minutes. Male: Show little respect. Fuck you. (Very loud disturbance continues in courtroom) R.N.S.: Fuck you, man. Male: You’re real tough guy, aren’t you. R.N.S.: Yeah. Fucking, take these off. (Very loud disturbance continues in courtroom) COURT ADJOURNED. END OF PROCEEDINGS ON RECORDING. [35] I therefore find myself in the position where I agree with the beliefs and opinions expressed by all the Corrections, Parole and Probation Officers, the psychologists and psychiatrists, the members of the Parole Board of Canada and Corporal Teniuk in particular, that his fear that R.N.S. will re-offend in a violent or sexual manner is real and poses an imminent danger to public safety. I therefore, grant another recognizance to bind R.N.S. over to keep the peace and be of good behaviour pursuant to s. 810.2 of the Criminal Code of Canada. COUNT #2: SECTION 810.1 [36] My previous finding that the Crown has already proven on balance of probabilities under s. 810.2 of the Criminal Code the fear of Corporal Teniuk that R.N.S. will commit serious personal injury offence includes the offences of s. 271 (sexual assault), s. 272 (sexual assault with weapon, threats to third party or causing bodily harm) or s. 273 (aggravated sexual assault) also contained in s. 810.1(1) of the Criminal Code. [37] R.N.S.’s most recent and third sexual assault was perpetrated on his 14 year old niece. He has refused to take any of the high intensity sexual programming recommended for him since that time. As such, he remains high risk to re-offend and find the Crown has also proven on balance of probabilities that the fear of Corporal Teniuk that he will commit another sexual assault offence in respect of one or more persons who are under the age of 16 years is objectively supported by the same evidence set out under Count #1 of this decision. [38] The mere passage of time is not enough to reduce his risk of re-offending. agree with Ms. Woytiuk’s evidence that the passage of time may only reduce risk factor nominally, and even then it must be over an extended period of time. R.N.S. is only 40 years of age and is in good physical health. His sexual assault offences have been committed after drinking. He has not taken seriously his need to address his substance abuse issues. He continues to refuse professional treatment or attend AA. As such, substance abuse continues to be real risk to his re-offending sexually. CONCLUSION [39] I therefore, order that R.N.S. be bound over on a third section 810.2 or 810.1 recognizance for a term of one year commencing February 25, 2013, on the following terms and conditions:1. Keep the peace and be of good behaviour; 2. Appear before the Court when required to do so by the Court; 3. That you shall report, in person, between 8:00 a.m. and 4:00 p.m. to the Tisdale Detachment of the RCMP, Tisdale, Saskatchewan, within 24 hours to register and to have your photograph taken; 4. That you shall report, in person, to the Chief Probation Officer or his designate within 24 hours at 107 Crawford Avenue East, Melfort, Saskatchewan, 306 752 6240 and, thereafter, to follow all lawful instructions of the Chief Probation Officer or his designate; 5. That you shall continue to report, in person, to the Tisdale Detachment of the RCMP, Tisdale, Saskatchewan, each Wednesday between 8:00 a.m. and 4:00 p.m. until the expiration of the Order, except that if you are to be away from Tisdale for work purposes, you shall advise the Tisdale RCMP in advance of the name and contact information for your work, and if you are away you shall report each Wednesday by phone at 306 878 3810 between 8:00 a.m. and 4:00 p.m. to the Tisdale RCMP; 6. That you shall reside at place approved by the Chief Probation Officer or his designate and shall not change your address without prior approval of the Probation Officer; 7. That you shall attend any programming that may be required as part of treatment as directed by Probation Services; 8. That you shall attend for the purpose of Risk Assessment as directed by your Probation Officer, months from the signing of this Order, or as directed by your Probation Officer; 9. That you shall not have any contact directly or indirectly with L.P., except through member of the Law Society of Saskatchewan or third party for the purpose of arranging access to your children; 10. That you shall not have any unsupervised contact with any person under the age of 16 years, except your children, C., S., O.1 and A. and your step-children, O.2, T. and E. and grandchildren, L.C. and J.T.; 11. Any supervised contact must be by an adult who is familiar with R.N.S.’s criminal history; 12. That you shall notify the police immediately of any female person with whom you become involved in relationship, and agree that the police, where they deem appropriate will notify any child caring agency or any female person with whom you become involved in relationship of your offence history; 13. That you shall not possess or consume alcohol or drugs that have not been prescribed for you by medical doctor and not enter or be in any place in which the main purpose is the sale of alcohol, such as bars or liquor stores; 14. That you shall not be employed, either for remuneration or as volunteer, in any capacity or activity that will bring you into contact with persons under the age of 16 years; 15. That you shall report to the Tisdale Detachment of the RCMP, Tisdale, Saskatchewan any travel plans outside the jurisdiction, including destinations, accommodations, departure date and return date prior to travelling; 16. That should you alter your appearance, you shall upon demand of peace officer submit to photograph; 17. That you shall carry copy of the recognizance on your person at all times and present the recognizance upon contact with any police officer; 18. That you shall agree that in the event you are granted permission from the Courts or Probation Services to move from your area of residence for any reason, all these conditions and enforcement thereof will be transferred to the police agency in the jurisdiction in which you relocate. J. Rybchuk,

Criminal Law – Recognizance The defendant was a repeat violent and sexual offender who was still serving a sentence for sexual assault and out on a weekend parole pass when he committed his last sexual assault offence against his 14-year-old niece. He was returned to prison and served his entire sentence to warrant expiry before being placed on a s. 810.1 peace bond recognizance upon his release from prison in 2010 and then again in 2012. The Crown then applied for a third recognizance. An RCMP officer with the High Risk Offender/Serious Violent Offender Response Unit swore an Information that he had reasonable grounds to believe that the defendant would commit either a serious personal injury or a sexual assault offence against someone under the age of 16 years and requested that he be bound over. A parole officer with Correctional Services Canada also testified to the defendant’s history in the federal prison and to her belief that based, upon his history, the defendant remained at high risk to re-offend. The Crown indicated that it was looking for one recognizance, either under s. 810.2 or s. 810.1 of the Criminal Code. The defendant had 59 prior criminal convictions, 12 of which related to sexual or common assaults. He had a serious alcohol abuse problem and committed most of the assaults while intoxicated. While in prison, he had refused to participate in programming. As a high risk to re-offend for sexual offending, the defendant was required to complete high-intensity sex offender programming but had not availed himself of the opportunity to do so during the last four years. HELD: The Court granted the recognizance to bind the defendant over to keep the peace and be of good behaviour pursuant to s. 810.2 of the Code because it agreed with the beliefs and opinions expressed by the witnesses and their evidence that they believed that he would re-offend in a violent or sexual manner, which posed an imminent danger to public safety.

6_2014skpc40.txt

J. 2000 SKQB 420 Q.B.G. A.D. 1997 No. 767 J.C.S. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF SASKATOON BETWEEN: darWALL CONSULTANTS INC. and MICHAEL POWER DEFENDANT James Scott for the plaintiff James Morrison for the defendant FIAT D.H. WRIGHT J. October 6, 2000 THE ISSUE [1] Is a solicitor bound by an undertaking to protect an expert witness for its professional fees? [2] The defendant represented several farmers and farming companies in suits brought against the Saskatchewan Crop Insurance Corporation (SCIC). The plaintiff was hired to provide technical evidence as to crop losses and damages the farmers claimed resulted from the actions of SCIC. [3] The proceedings moved slowly. At various times the plaintiff’s officer met with the farmers and the defendant to discuss the case, the evidence and the strategies to be followed. The hope was that the provincial agency might settle before trial. [4] One of the farmers, Greba, paid deposit to the defendant for remittance to the plaintiff as down payment on the latter’s fees. The defendant was employed by the farmers on contingency basis, the understanding being that the clients would pay the defendant’s disbursements in any event. [5] As the case proceeded and the plaintiff devoted more time and resources to the preparation of its reports, it became more and more worried about how it would be paid. The farmers’ prospects were not encouraging. There were serious concerns about how long the action would take and the outcome. [6] This concern led to meeting between the plaintiff’s officer, Hamm, and the defendant on January 25, 1993. That resulted in letter written by Power to darWall dated March 5, 1993. The letter contains the following statements: My client will provide additional funds to complete the balance of the Retainer you require. understand, as per our discussions on February 25, 1993, that you will invoice my office for your fees and disbursements for quantifying the said loss claim and that the Retainer provided will be applied to the total professional fees and disbursements incurred by yourself. In addition, this will confirm that my office will undertake to protect you for your fees and disbursements and to pay interest at the rate of twelve (12%) per cent per annum on the balance due. You indicated that you are prepared to wait until the case is either settled or litigated before payment, provided that interest is added on the invoice at the rate of twelve (12%) per cent per annum. [7] As the plaintiff continued its analysis and the preparation of its reports, it sent periodic statements of account to the defendant. The statements for November 15, 1993; January 25, 1994; July 15, 1995; January 8, 1997 were entered as evidence. Each was directed to the defendant as the client. There was no evidence that the defendant ever objected to his characterization with respect to any of these statements of account. [8] The farmers’ actions did not settle. They proceeded, finally, to trial and on March 5, 1997, all of the claims were dismissed. [9] Power wrote to the plaintiff on March 12, 1997 as follows: This is to advice [sic] that Judgment in regard to Mr. Greba’s claims was handed down on Wednesday, March 5, 1997. Judgment was awarded in favour of the Saskatchewan Crop Insurance Corporation in regard to Township Farms and Mr. Greba’s outstanding crop insurance premiums, with interest. Mr. Greba’s claims, together with the claims of Township, County and Meridian, were all dismissed against S.C.I.C. Both Mr. Greba and myself are very disappointed with the trial judge’s decision. The decision is some 60 pages in length. On the two critical legal issues that we argued, the trial judge disbelieved Mr. Greba’s evidence. We are very disappointed with the result. took this case on contingency fee basis, meaning that in the event was unsuccessful in recovering any monies for Mr. Greba, would not be paid any fees. Mr. Greba was responsible for all of my disbursements. note in regard to your expert report, that you have provided me with invoices as to your fees and disbursements. Since was not successful in obtaining any monies as result of the trial, what is your position in regard to your invoices? look forward to hearing from you. [10] When the plaintiff demanded payment, the defendant rejected the demand, arguing that he had no obligation to pay as the farmers’ actions had not resulted in the recovery of any monies. [11] darWall sued Power on April 22, 1997, claiming professional fees of $37,604.33 and interest as provided for in the March 5, 1993 letter and costs. Power defended. In the course of his statement of defence he said this: 4. The Defendant, Michael Power, further states that at the request of the Plaintiff and upon confirmation of instructions from the parties through Eugene Greba, he agreed that any money provided by the parties to him for payment of the account of the Plaintiff or any monies received on behalf of the parties as result of the successful conclusion of the litigation as between the parties and SCIC would be paid to the Plaintiff by the Defendant as solicitor for the parties. The Defendant further states that at the request of the Plaintiff the Defendant confirmed in letter dated March 5, 1993 that he would protect the Plaintiff for payment of his account in the manner agreed to between the parties and the Plaintiff and as the parties had instructed the Defendant, namely, that any money provided by the parties to the Defendant for payment of the account of the Plaintiff or any monies received by the Defendant on behalf of the parties as result of the successful conclusion of the litigation as between the parties and SCIC would be paid by the Defendant to the Plaintiff. The Defendant further states that the Plaintiff agreed with the said parties that he would defer payment of his account from the parties until the successful conclusion of the litigation with SCIC, provided he received interest on the amount outstanding to the Plaintiff at rate of 12% per annum. The plaintiff commenced its action under the General Rules, but subsequently amended its claim on April 26, 2000 to continue the action under the Simplified Procedure Rules (Part Forty) which it did without objection. MOTION FOR SUMMARY JUDGMENT [12] It then brought this application pursuant to Rule 483 for summary judgment under Part Forty. Both parties filed extensive affidavits in the action. On the return of the motion, the applicant’s counsel objected to certain statements in the affidavit made by the respondent on September 28, 2000. In particular, he objected to the following portions of the affidavit: 5. also recollect Greba advising me and verily believe the same to be true that he had discussions with Hamm about paying $1,000 to get going on report and the balance could be paid from settlement or court judgment, and he’d simply collect interest on the balance until then. 9. My client’s best expectation was 70%. If SCI wished to set precedent, this would have been the ideal file for that purpose.” [Emphasis in original] 10. THAT pre-trial settlement conference was held in September 1996 in regard to Greba and the Companies’ actions against Saskatchewan Crop Insurance Corporation and this resulted in further offer to settle. Greba declined to accept this offer, feeling he might get more if he held out. was later advised by Greba and verily believe the same to be true that Hamm was upset Greba declined to settle at the Pre-Trial Conference. This was later advised by Greba and verily believe the same to be true that Hamm insisted on meeting with Greba and suggested that Greba should get another lawyer to represent him as Hamm was upset with how long it was taking to get the case settled. only learned of Greba and his wife Linda’s discussions with Hamm few weeks before trial. This subject only came up when Greba phoned me quite upset and indicated Hamm wanted an urgent meeting to discuss the progress of the case. meeting was arranged with Greba, his wife Linda, Cal Clark lawyer who was now assisting Greba and myself, and Hamm. Prior to the meeting received letter dated January 8, 1997 from Hamm, copy of which is attached hereto and marked as Exhibit “E” to this my affidavit. meeting was held, between myself, Greba and his wife and Cal Clark to discuss this letter, Hamm could not be present. This is when Greba revealed his discussions with Hamm about getting another lawyer and that Hamm would reduce his invoices to $5,000.00 if this would help Greba settle his case with SCIC. Both myself and Cal Clark, felt this letter indicated Hamm was worried about his account for the expert report work he had done for Greba and the risk to Hamm of not being able to collect if we were not successful at trial. In my discussions with Greba about setting this case he always took into account what he’d have to pay Hamm from any settlement. 11. Greba let me know that he offered Hamm $5,000 to settle his account. Hamm rejected this suggestion and decided he’d pursue me based on my letter of March 5, 1993. In fact Hamm phoned me at home and at my office demanding pay him personally. refused to discuss this with him, but sent him letter dated April 3, 1997 outlining my position. Attached hereto and marked as Exhibit “G” is copy of my April 3, 1997 letter. 15. THAT have expended personal time and money defending myself in this unwarranted action. am well aware of the seriousness of this wrongful allegation and am shocked and surprised at Hamm’s pursuit of this case, in view of facts which believe he is conveniently ignoring to make his case look better. He wrongfully alleges contracted his services and promised to pay for them regardless of the outcome of Greba’s action. He wrongfully alleges that had provided the retainer, consulted him regarding his report, that he wrote his report for me at my request and that agreed to pay interest on his deferred invoices, and that is why he billed my office. This is all contrary to what had been understood and agreed to in my meeting with Hamm and Greba in February, 1993. For this reason believe it is critical that the court have an opportunity to hear both parties in this action on evidence in chief and under cross examination and that it is not an appropriate case under the simplified procedure. Mr. Scott argues that these portions of the affidavit are not evidence, but hearsay and opinion, or relate to matters immaterial to the proceeding. I agree. They are struck. [13] The respondent argues this is not proper case for summary judgment under either the General Rules (Q.B. Rule 129) or Rule 488 (Simplified Procedure). He contends there is conflict in the evidence as to what he agreed to and that he should have full-fledged trial for that purpose. He contends that the trial will not likely occupy more than one day, and that making an order that it proceed as an action under the General Rules will permit the parties to utilize all of the General Rules including any further interim steps. [14] In answer to the applicant’s submissions with respect to the undertaking of March 5, 1993, the respondent refers to certain portions of the examination for discovery of the plaintiff’s officer, Hamm. Hamm was referred to letter of January 8, 1997 the plaintiff sent to Power. He was asked the following questions with respect to that letter: 259 And in the letter you say in the second paragraph, middle of the second paragraph, “Given the amount of time, energy and cash payment of Connie Yuzak, Lloyd Johns, fees, et cetera have invested in this case, must now look to recovery of my investment”? Yes, said that. 260 And dealing with the issue in the last paragraph, saying that, “Given the facts and opinions above” and you have described particulars of the fact that “loss of liability issue resulting in zero, nil recovery of investment for all interested parties, strongly recommend we upgrade the litigation and settle the strategy;” would that be fair? Yeah. It’s written there. 261 Would it be fair to say that you were one of the interested plaintiff parties, sir? In the sense that sensed that my fees were going to be paid out of the proceeds, that was the plan, that was the fee; and therefore, had an interest in the outcome of the process, yes. 262 So you were concerned, sir, that if this matter wasn’t successful, you were concerned that you weren’t going to get paid? Yeah. It was concern. 274 So you knew when you wrote this letter of January, 1997, that your ability to get paid was dependent upon the result of this lawsuit? No. didn’t know, but had concerns that it was. had no idea where Mike was going to get the money to pay me, although suspected he was going to get it from the lawsuit. That was always my understanding. Mr. Scott drew to my attention that there were other portions of the examination for discovery which placed these statements, as he put it, in context. reviewed the questions immediately following Question No. 274 and they are set out below: 275 Just that things went little bit sour in the lawsuit, that he was going to be on the hook? That was concern, yes. 276 That wasn’t concern; that’s what you had indicated your understanding was in February of 1993, sir. Yes, it is. It was fact that he was on the hook. He had contract with me. 277 In the letter of January 8th, 1997, you say, “I must look to the recovery of that investment.” And then you make reference to the issue of “particularly that the loss of the liability issue would result in nil recovery of investment of all interested plaintiff parties.” [15] will deal first with the contention that the applicant’s admissions at discovery confirm the interpretation of the undertaking set out in the statement of defence. [16] With respect, they do not. It is obvious that Hamm recognized that the farmers were intending to fund their costs from settlement or judgment. Power was in the same position. What is also clear is that his disbursements would be paid by his clients regardless of the outcome of the suits. That would include the costs of any experts’ reports commissioned by them or the defendant. [17] The applicant took the steps it decided were necessary to protect what it called its “investment”. The strong concerns expressed to the respondent resulted in the March 5, 1993 undertaking. [18] The Code of Professional Conduct of the Law Society of Saskatchewan, c. XVI, comm. 10 states: The lawyer shall give no undertaking that cannot be fulfilled, shall fulfil every undertaking given, and shall scrupulously honour any trust condition once accepted. Undertakings and trust conditions shall be written or confirmed in writing and shall be absolutely unambiguous in their terms. If the lawyer giving an undertaking does not intend to accept personal responsibility, this should be stated clearly in the undertaking itself. In the absence of such statement, the person to whom the undertaking is given is entitled to expect that the lawyer giving it will honour it personally.... [Emphasis in original] The undertaking given by the respondent on March 5, 1993 is absolutely clear. The addition of the word “protect” puts the question beyond doubt. [19] If more were needed, one need only note that these statements of account were all directed to the respondent without objection. His inquiry of March 12, 1997 makes it clear also that Power recognized his responsibility and was hoping for some resolution of the matter of the applicant’s account. [20] The only conclusion that can be drawn from the facts is that the respondent guaranteed the payment of the applicant’s account regardless of the outcome of their mutual client’s actions. have sympathy for the respondent but he is presumed to know the canons of the Law Society. great deal of attention has been focussed on solicitors’ undertakings over the past decade as evidenced by the frequent reports of breaches which appear in the reports of the Discipline Committee of the Society. In one sense, an undertaking given to layperson is to be viewed in an even more critical light as that person does not have the training and experience to understand the nuances of legal language. [21] The applicant is entitled to succeed. DISPOSITION [22] The applicant will have payment for the amount of its claim, interest as provided for in the undertaking and costs of the action.

FIAT. An application for summary judgment under Part Forty. In issue was whether a solicitor is bound by an undertaking to protect an expert witness for its professional fees. The defendant solicitor, who represented several farmers and farming companies in suits brought against Saskatchewan Crop Insurance Corporation on a contingency fee basis, confirmed in writing in 1993 that his office would undertake to protect the plaintiff consultants for their fees and disbursements and to pay interest at a rate of 12% per annum. The plaintiff was hired to provide technical evidence as to crop losses and damages the farmers claimed as a result of actions of SCIC. When all of the claims were dismissed at trial, the solicitor rejected the plaintiff's demand for payment arguing he had no obligation to pay as the farmers' actions had not resulted in the recovery of any monies. The plaintiff sued the solicitor in 1997 for professional fees of $37,604.33. The plaintiff objected to certain portions of the defendant's affidavit. HELD: The plaintiff was awarded $37,604.33 plus interest at 12% per annum as provided for in the undertaking, and costs of the action. 1)The plaintiff commenced its action under the general rules but amended its claim without objection to continue under the Simplified Procedure. 2)Portions of the defendant's affidavit were struck as being hearsay and opinion or related to matters immaterial to the proceeding. 3)The applicant's admissions at discovery did not confirm the interpretation of the undertaking set out in the statement of defence. It was obvious the plaintiff's officer recognized the farmers were intending to fund their costs from a settlement or judgment and that disbursements, including the costs of any expert's reports commissioned by them or the defendant, would be paid by his clients regardless of the outcome of the suits. 4)The only conclusion that could be drawn was that defendant guaranteed payment of the applicant's account regardless of the outcome of their mutual client's actions. A solicitor is presumed to know the cannons of the Law Society including c.XVI, comm.10 of the Code of Professional Conduct with respect to undertakings. The solicitor's undertaking in 1993 was absolutely clear. The addition of the word 'protect' put the question beyond doubt. His inquiry in 1997 made it clear the defendant recognized his responsibility and was hoping for some resolution of the applicant's account.

b_2000skqb420.txt

QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2013 SKQB 397 Date: 2013 11 06 Docket: Q.B. No. 339 of 2013 Judicial Centre: Prince Albert BETWEEN: JEAN RICHER and LESLIE SINOBERT, and THE ATTORNEY GENERAL OF CANADA, Counsel: Jean Richer and Leslie Sinobert appearing on their own behalf Christopher J. Bernier appearing for the respondent JUDGMENT DOVELL J. November 6, 2013 [1] The applicants, Jean Richer and Leslie Sinobert, (hereinafter referred to as “Richer” and/or “Sinobert”) have brought an application for writ of habeas corpus with certiorari in aid, seeking unconditional release from the Riverbend Minimum Institution in Prince Albert, Saskatchewan, due to “threat” to their respective liberties claiming that the Correctional Service of Canada has violated their rights under the Canadian Charter of Rights and Freedoms (the “Charter”) in not allowing them to reside in common housing unit so that they can participate in their long-standing, same-sex relationship outside of the public domain. A. Preliminary Request [2] Prior to this application being heard, Richer requested that the Court allow him to represent Sinobert “as he has no ability to represent himself, having suffered three strokes since 1993 and suffers the effects from mercury poisoning (Minamata disease) and its effects, for which he has suffered with for his 62 years of life”. [3] It was obvious from the evidence the Court received concerning Sinobert’s physical and mental health and the Court’s observations of Sinobert during the application that he was suffering from some kind of disability. Rule 2-34 of The Queen’s Bench Rules requires that party with disability be represented by lawyer. However, in the unique circumstances of this case, with Sinobert consenting and the respondent not really taking issue with Richer’s request, the Court allowed Richer to make submissions to the Court on Sinobert’s behalf as well as his own. That proved to be beneficial for everyone as towards the end of the argument Sinobert had to be assisted by court official for blood sugar related situation that had culminated during the application. B. Background Facts [4] Most of the facts in this matter are not in dispute. Both Richer and Sinobert had been serving their “life” or “indeterminate” sentences at the medium security Saskatchewan Penitentiary until they were both transferred this year to the minimum security Riverbend Annex; Sinobert on April 9, 2013 and Richer on May 14, 2013. Richer and Sinobert are both residing in housing units at Riverbend; Sinobert residing in housing unit specifically designated for individuals with mental health issues. [5] On May 21, 2013, Richer submitted an Inmate’s Request requesting that he and Sinobert be allowed to reside together at Riverbend in the same housing unit. [6] Pursuant to policies of the Correctional Service of Canada and as contained in the Riverbend Inmate Handbook, on June 5, 2013, Darcy Begrand, Manager of Assessment and Intervention, responded to the May 21, 2013 Inmate’s Request as follows: No promises were made that you could move into Sinobert’s house. His house is specifically for inmates with Mental Health needs. You and Sinobert have ample opportunity to visit socialize in the AM, after work, on weekends, outside of the Minimum Security houses. [7] The Inmate Handbook outlines the institutional policy that all offenders are not allowed in housing units other than their own, but are to visit in common areas such as the multi-purpose building, the gymnasium and recreational areas, the cultural centre or outside the individual housing units. [8] Rather than bringing grievance under the Offender Complaint and Grievance Process as is outlined in Commissioner’s Directive 081, Richer wrote to the Deputy Regional Commissioner, Brenda LePage, on June 14, 2013 requesting meeting to discuss his concerns that he had not been allowed to reside or have private visits with Sinobert. [9] Attached to his June 14, 2013 letter was copy of his previous letter to her of May 26, 2013, and copy of first-level grievance response dated July 27, 2007, which had been provided to Richer in response to grievance he had filed in 2007 when he and Sinobert had been at the medium security Saskatchewan Penitentiary. Richer’s grievance in 2007 was in regard to the same issues that were outlined in his May 21, 2013 Inmate’s Request. [10] In response to Richer’s June 14, 2013 letter, Joan Dunajski, Regional Director, Communications and Executive Services, on July 3, 2013 wrote to Richer indicating that his concerns should be addressed through the Offender Complaint and Grievance System as it was the established process for offenders’ redress when they felt they had been treated unfairly, or in manner that was not consistent with the Correctional Service of Canada legislation and policies. Ms. Dunajski also informed Richer that the most fair and expedient resolution of offender concerns began with first‑level grievance and that his concerns could be addressed through that forum. [11] Notwithstanding that direction, Richer, who is familiar with the grievance process as he has in the past made use of it on numerous occasions, has not made first‑level grievance with regard to the concerns as contained in this application. [12] On July 13, 2013, Richer was located in Sinobert’s Riverbend housing unit and was charged with the disciplinary offence of being in housing unit other than his own. Richer was convicted of that offence and fined $5.00. Although institutional charges may sometimes lead to security reclassification of an offender, Richer has remained assessed as minimum security offender and has continued to be housed at minimum security Riverbend Institution. [13] Rather than following the Offender Complaint and Grievance System, both Richer and Sinobert chose to bring habeas corpus application to this Court in September 2013. [14] As at the time of the application being heard both Richer and Sinobert continued to be housed at minimum security Riverbend Institution in separate living units, neither having had their security levels reclassified and neither having filed first‑level grievance. The Court assumes that neither of the applicants’ situations have changed for the purpose of rendering this decision. Analysis [15] Although this Court and the Federal Court have concurrent jurisdiction to grant the remedies of habeas corpus and certiorari in aid of habeas corpus, in this case the Court has concluded that it must decline its jurisdiction to grant a remedy on the application guised as a habeas corpus application. [16] Our Court’s jurisdiction to grant remedies against federal institutions and decision-makers is narrow. It is not for this Court to determine the reasonableness of the administrative decisions made by the Correctional Service of Canada within the confines of its jurisdiction. Habeas corpus cannot be used to review the decision of the Correctional Service of Canada declining housing reassignment request or the policy that all inmates found in housing unit other than their own will be subject to disciplinary charges. [17] The applicants are seeking to challenge administrative decisions of the Correctional Service of Canada which do not impact their residual liberty. While Richer and Sinobert have framed their application under the pretence of habeas corpus, the true character of the remedies being sought by them is a writ of certiorari, prohibition or mandamus. These remedies fall within the exclusive jurisdiction of the Federal Court of Canada through a judicial review process. [18] Thus, habeas corpus cannot be used to review the way the Correctional Service of Canada manages an inmate’s sentence as is the case here. Habeas corpus is guarantee of liberty, not channel for drawing our Court into the day-to-day management of prison. [19] Rather than bringing this application to this Court, the applicants should have followed the grievance process on the issue of housing assignments. Richer knows full well the process as he followed it in 2007. In his letter to Brenda LePage of June 15, 2013, Richer enclosed copy of the first-level grievance response he received when he grieved decision in 2007. It is not that Richer does not know the proper procedure; he has chosen not to follow it as he finds the grievance process frustrating and time consuming. It may very well be all those things, but it is process that must be followed as opposed to applying to this Court for remedy. The grievance process must be followed by the applicants with view to eventually bringing judicial review application to the Federal Court if no favourable responses are obtained by them before then. [20] In the event the Court had assumed jurisdiction over this habeas corpus application, the application for habeas corpus would have failed in any event. On the materials before the Court, the applicants have not established any deprivation of liberty, and the respondent has established that any possible deprivation of liberty is lawful. Not every constraint on an inmate amounts to “deprivation of liberty”. Conclusion [21] For all the reasons as outlined in this decision, the application of the applicants is dismissed with costs to be taxed. J. M. L. DOVELL

HELD: The Court dismissed the application. It held that although it had concurrent jurisdiction with the Federal Court regarding habeas corpus applications, it declined jurisdiction in this case to grant a remedy because habeas corpus could not be used to review a decision of CSC made within the confines of its jurisdiction. The applicants were trying to use habeas corpus when they actually were seeking a writ of certiorari, prohibition or mandamus. These remedies were available only through the Federal Court.

8_2013skqb397.txt

J. QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2005 SKQB 450 Date: 20051024 Docket: F.L.D. No. 221/1998 Judicial Centre: Regina, Family Law Division BETWEEN: BETTY EILEEN DONALD and GEORGE EDWIN BROWN Counsel: Michael B. Ryan, Q.C. for the Betty Eileen Donald M. Dean Brown for the George Edwin Brown JUDGMENT GUNN J. October 24, 2005 [1] There are two applications before the Court. Betty Donald seeks an order varying the support order granted by Archambault, J. on September 11, 1998. She seeks the following: (a) An order increasing the current $200.00 per month payment on behalf of the child, Warren Brown (born February 26, 1986), retroactive to October 1, 2003; (b) An order for lump sum payment for past s. post-secondary expenses incurred on behalf of the child for 2002-2003; and 2003-2004 school years; (c) An order for monthly payment toward ongoing s. expenses; (d) An order exempting the parties from attending the Parent Education Program; (e) Costs of the application. [2] At the commencement of the hearing Ms. Donald abandoned any claims for retroactive support and retroactive s. expenses. She now seeks an order for ongoing child maintenance, based on the Federal Child Support Guidelines (SOR/97‑175, as am.) (the “Guidelines”) commencing September 1, 2005 payable to and including March 1, 2006. She seeks review in August of 2006 for further determination of whether Warren remains person within the meaning of The Family Maintenance Act, 1997, S.S. 1997, c. F-6.2 (the “Act”). She accepts Mr. Brown’s income to be $21, 953.52 as set out in his financial statement and on that basis claims monthly support for Warren in the sum of $181.00 per month. She further seeks an order pursuant to s. of the Guidelines for some contribution to Warren’s post-secondary expenses commencing September 1, 2005. [3] Mr. Brown seeks an order that his child support obligations for Warren cease effective July 2004, and that he be reimbursed for any payments made subsequent to that date. Mr. Brown takes the position that in July of 2004 and thereafter, Warren ceased to be a person within the meaning of the Act as he was not, by reason of the pursuit of reasonable education, unable to withdraw from Ms. Donald’s charge or to obtain the necessaries of life. In the event any ongoing payments are ordered, Mr. Brown submits his income should be found to be $16,049.73 as that is his most recent income. [4] Betty Donald and George Brown cohabited as spouses from 1980 to February 1997. They have two children, one of whom is Warren George Brown, born February 26, 1986. Pursuant to the order of Archambault, J., Mr. Brown is required to pay $200.00 per month maintenance for Warren. His payments are current to August 2005. [5] Since her separation from Mr. Brown, Ms. Donald has lost her sight. This occurred in 2001. She currently receives Canada Pension disability benefits of $859.00 per month (affidavit April 25, 2005 paragraph 5) net of tax or $947.03 gross per month (affidavit September 9, 2005 paragraph 9). This is her only current source of income. On an annual basis this is $11,364.36 gross. In 2004 she received, in addition, the sum of $3,394.38 from the Regina Qu’Appelle Health District, her former employer, on account of 2001 holiday pay owing to her. [6] Mr. Brown continues to be employed as long-haul truck driver working for Corcoran Trucking, the head office of which is in Billings, Montana. He has held this type of employment for the past 30 years, although not always with the same employer. He lives in Regina with his former wife, Rita Brown, with whom he has reconciled. They have lived together in Regina since August 1, 2004. The income reported in the past three years on his income tax return is the following: [7] In his financial statement, he states his annual income is $21,953.52. This is the average of the past three years. Warren Brown [8] Warren is now 19 years of age. He completed Grade 12 in June of 2004, however he returned to Thom Collegiate in the fall of 2004 to complete three further classes. letter dated September 7, 2005 was filed from the principal of Thom Collegiate confirming that Warren was student at Thom from August 27, 2004 until October 20, 2004. [9] October 15, 2004 he was accepted at SIAST in Pre-Trades Carpentry program commencing November 1, 2004 and ending April 1, 2005. His tuition was $1,810.00, plus books and other materials of $600.00. Warren achieved an overall weighted average of 69% at SIAST. [10] February 3, 2005 Warren was accepted at New Media Campus taking an on-line Multimedia Professional Studies/Film Animation course through New Media Campus. He was, at this time, still finishing his classes at SIAST. The description of this course was provided in letter dated August 10, 2005 by Jon Ketch, the Office Manager of New Media to Ms. Donald’s counsel. Portions of the letter read as follows: ... Warren is currently enrolled at New Media Campus and taking the Online Multimedia Professional Studies program. The Online Multimedia program is full-time program in which the student is allowed 52 weeks to complete the program. The Online Multimedia program is exactly the same content-wise as the In-class Multimedia program, which runs for 10 months, Sept-May, Mon-Fri, 9-5; the only difference being the flexibility of studying from home on your own schedule. As declared by Saskatchewan Learning, students must be enrolled in 60% or more of full course load for the school term in order to be deemed full-time student. Warren is enrolled in 100% of full course load for the school term and is therefore full-time student. The number of hours the student puts in to the program is entirely up to the individual, as long as all assignments are completed and handed in before the given end date.... [T]he course actually begins on the exact day the student receives his computer. In Warren’s case, this was March 14, 2005, making his end date March 13, 2006.... [11] Warren’s current average on his assignments at New Media is 83%. He hopes to continue with his studies in September of 2006 taking 3D Animation Game Design which is an in-class program, starting in September and running for 10 months, Monday to Friday 9:00 a.m. to 5:00 p.m. [12] The tuition at New Media is $12,000.00 per annum plus registration fee of $75.00. This tuition is to be paid by deposit of $6,270.00 followed by monthly payments of $716.00. Warren’s employment history and income is the following: [13] Warren deposes that he worked for some time at McDonald’s earning $7.55 per hour. His income in 2003 was $6,348.00 and in 2004 it was $10,175.32. Warren also began to receive CPP child benefits of $195.96 per month in March of 2004. The total income reported in his 2004 tax return was $12,167.00. [14] Warren’s income from McDonald’s in 2005 is $3,368.91. He changed jobs in April 2005. Warren is currently working approximately 20 hours per week at WalMart earning $8.10 per hour. His take home pay is about $200.00 to $250.00 every two weeks. He has reduced his hours of work because he needs to concentrate on his school work. [15] Warren has been approved for Canada and Saskatchewan Student Loan. The details of the payments approved to date are the following: (a) Canada Student Loan disbursement of $6,270.00 on February 8, 2005; (b) Saskatchewan Student Loan payments of $380.00 paid and/or authorized for March 1, 2005 to and including January 1, 2006. Warren’s Expenses [16] In May of 2004, Warren applied for and received $2,600.00 loan from TD Canada Trust which was used to pay outstanding fees owed to Thom Collegiate. In November of 2004, he applied for $2,500.00 student line of credit to pay for his expenses while he was attending SIAST. Subsequently these two loans were consolidated, and Warren is making payments on these loans. As at April 26, 2005, Warren deposes that the balance owing was approximately $3,600.00. [17] Warren deposes that his monthly expenses are the following: TD Canada Trust Payment $100.00 Gas, licence and insurance $155.00 School supplies(This is for CD’s to upload school work to New Media 50.00 Entertainment and Recreation $180.00 Monthly tuition to New Media $716.00 Hair care, toiletries and clothing $100.00 Parental Support [18] Warren lives with Ms. Donald who provides him with room and board. She also pays for the high speed internet at cost of $49.95 per month as it is required for his on-line course. [19] Prior to March of 2005, Warren had not spoken to his father in couple of years. He did see his father along with Rita Brown in March of 2005, but has not seen him since. Mr. Brown deposes that the March meeting went very well, but that they have not heard from Warren since that time. 1. Was Warren person within the meaning of s. 4(2) of The Family Maintenance Act, 1997 after July 2004? 2. What is Mr. Brown’s income? 3. On what basis should Mr. Brown’s obligation be determined? 4. Conclusions. LEGISLATION [20] The pertinent sections of The Family Maintenance Act, 1997 and regulations are as follows: 3(1) Every parent has an obligation to provide maintenance for his or her child to the extent that the parent is capable of so doing. (2) Subject to subsections (4) and (5), the amount of maintenance to be provided pursuant to the obligation mentioned in subsection (1) is to be determined in accordance with the guidelines. (3) On application, the court shall order maintenance for child in accordance with the guidelines. (7) An order made pursuant to this section continues in effect after the eighteenth birthday of the person for whom maintenance is payable where the person is: (a) under the claimant’s charge; and (b) unable, by reason of ... pursuit of reasonable education or other cause to: (i) withdraw from the claimant’s charge; or (ii) obtain the necessaries of life. 4(1) In this section “parent” means, with respect to person described in subsection (2): (a) the father or mother of the person, whether the person was born within or outside marriage.... (2) On the application of parent of person who is 18 years of age or older, the court may order the person’s other parent to pay maintenance to the claimant for the benefit of the person if the person is: (a) under the claimant’s charge; and (b) unable, by reason of ... pursuit of reasonable education or other cause, to: (i) withdraw from the claimant’s charge; or (ii) obtain the necessaries of life. (3) Every parent has an obligation to provide maintenance for person described in subsection (2) in accordance with the guidelines or, if the court considers that amount to be inappropriate, in an amount the court considers appropriate, having regard to the needs, means and economic circumstances of the person described in subsection (2) and the ability of each parent to contribute to the maintenance of that person. 10(1) Where an order for maintenance has been made pursuant to this Act or any previous Act which provided for maintenance for child ... or person described in subsection 4(2), and the court is satisfied that there has been material change in circumstances since the order was made, the court, on application may: (a) discharge, vary or suspend any term of the order, prospectively or retroactively.... The Family Maintenance Regulations, 1998, R.R.S, c. F‑6.2, Reg. 3(1) The Child Support Guidelines, as amended from time to time, are adopted for the purposes of maintenance orders pursuant to section or or the Act. (2) In applying the Child Support Guidelines for the purposes of the Act and these regulations, reference to spouse in the Child Support Guidelines is to be read as reference to parent as defined in section or or the Act, as the case may require. Re: 1. Was Warren person within the meaning of s. 4(2) of The Family Maintenance Act, 1997, after July 2004? [21] In Zaba v. Bradley (1996), 1996 CanLII 4930 (SK CA), 137 Sask. R. 295 (C.A.), the Saskatchewan Court of Appeal outlined number of factors court should consider in determining whether an adult child who is attending post-secondary education qualifies as “a child of the marriage” pursuant to s. of the Divorce Act, R.S.C. 1985, c. (2nd Supp.). The factors are equally applicable to the application before me. The factors set out in Zaba, supra, are the following: (a) Is the child eligible for student loans or other financial assistance” (b) Are the child’s career plans reasonable? (c) The ability of the child to contribute to his or her own support; (d) What were the parental plans for the child’s education, particularly those made during cohabitation? (e) Has the child unilaterally terminated his or her relationship with the payor? (f) Could the child reasonably have expected assistance if the marriage had not broken down? [22] Other factors which courts have considered in making this determination are the age of the child, the child’s academic ability, the possibility of securing employment at the end of the course of study and whether the child is full-time or part-time student. [23] As indicated by Madam Justice Ryan-Froslie in Fergusson v. Kurylo, 2005 SKQB 131 (CanLII); (2005) 264 Sask. R. 119 (Q.B.) at para. [8] Generally speaking, parents will remain financially responsible for bona fide adult student until the child has obtained degree or certificate that equips him or her for entry level employment in an appropriate field within reasonable period of time. Whatever course of study is chosen by the child, the length of time for which the parent will be required by law to support that course of study will depend on the reasonableness of the choice and the means and needs of the child and parent. (See: Jamieson v. Jamieson (1995), 1995 CanLII 6227 (NB CA), 14 R.F.L. (4th) 354 (N.B.C.A.); English v. English (1995), 1995 CanLII 5733 (SK QB), 16 R.F.L. (4th) 250 (Q.B.); Smith v. Smith (1990), 1990 CanLII 8083 (MB CA), 27 R.F.L. (3d) 32 (Man. C.A. )).... [24] The burden is on the applicant to prove the adult child’s ongoing economic dependence. [25] Warren completed Grade 12 in July 2004, having turned 18 in February. He then returned to highschool in the fall of 2004. He worked at McDonald’s during that year and continued to live at home with his mother, who provided him with room and board. Thereafter he attended SIAST and then commenced his classes with New Media. [26] Warren is still under Ms. Brown’s charge as he continues to live with her rent free. She provides him with room and board and some additional assistance in the form of high speed internet access in order for him to be able to continue with his studies. He is only 19 years of age and has been diligently pursuing his education. The fact that he has changed his course of study will not disentitle him to consideration for support. [27] He is eligible for student loans and he has applied for and received same. He has been continuously employed on part-time basis in order to contribute to his own support. He has changed employment recently, which has resulted in him receiving higher hourly wage, but fewer hours. He deposes, and accept, that this was done to permit him to devote more time to his school work. [28] I am satisfied on the basis of the evidence before me that Warren is a person within the meaning of s. 4(2) of The Family Maintenance Act, 1997 and that he has had that status on a continuing basis to the present time. This will continue until March 13, 2006 when he has completed his current course of study with New Media. Warren has deposed that it would be his hope and intention to enroll in the second year of his program, which would commence in September of 2006. therefore direct that there be review of Warren’s status in August of 2006 on chambers date to be fixed by the parties. Re: 2. What is Mr. Brown’s income? [29] Mr. Brown’s income has fluctuated in the past three years. No evidence has been presented that the 2004 income is indicative of future years. Accordingly, it is appropriate to take an average of the last three years to determine his income for the purposes of determining the appropriate amount of maintenance to be paid. (See: MacDonald v. Rasmussen, 1997 CanLII 11182 (SK QB), [1998] W.W.R. 588; (1997) 161 Sask. R. 103 (Sask. Q.B.); Woods v. Woods, (1998), 1998 CanLII 14068 (SK QB), 171 Sask. R. 170 (Q.B.)). [30] Accordingly, find Mr. Brown’s income to be $21,953.52, as set out in his financial statement. Re: 3. On what basis should Mr. Brown’s obligations be determined? [31] The presumptive approach in circumstances where child is residing with parent while pursuing post secondary education would be the table amount plus proportionate allocation of the reasonable and necessary expenses of Warren’s post‑secondary education. [32] The party seeking to exclude the application of the Guidelines must establish that applying them would be inappropriate. This is two-step process. Initially there ought to be determination of the applicable table amount and the amounts which may be appropriate under s. 7. (See S.D.B. v. P.W. (1998), 47 R.F.L (4th) 228 (N.S. Fam. Ct.) MacDonald v. Rasmussen, 2000 SKQB 494 (CanLII); (2000), 198 Sask. R. (Q.B.)). Applying the Guidelines would mean table amount of $181.00 per month. [33] Warren’s monthly income consists of his CPP child benefit of $195.96 per month, employment income of approximately $500.00 per month and Saskatchewan Student Loan payments of $380.00 per month. His total monthly income is $1,075.96. [34] His necessary school expenses are the following: CD’s $50.00 per month, high speed internet access $49.95 per month; tuition to New Media $716.00 per month. That would leave Warren with surplus of $260.01 per month. Warren has identified other expenses which are not directly related to school. He has loan payment to TD Canada Trust of $100.00 which relates to previous post-secondary expenses. Ms. Donald has abandoned her claim for any retroactive post-secondary expenses. Requiring Mr. Brown to contribute to the payment of this loan would indirectly accomplish the same result. Accordingly, it will not be taken into account. That leaves claim for $155.00 for gas, licence and insurance; $100.00 for hair care, toiletries and clothing; and $180.00 for entertainment and recreation. Given that Ms. Donald actually pays the cost of high speed internet access this leaves Warren with monthly shortfall of approximately $250.00 per month of which only $150.00 would be considered as shareable expense by the parties. [35] Ms. Donald’s income is $11,364.36. Mr. Brown’s income has been found to be $21,953.52. Their pro-rata share would then be 34% and 66% respectively or $51.00 and $99.00. [36] It would not be appropriate for the Court’s analysis to stop here. Some attention must be paid to the financial ability of each parent to contribute. In the Annual Review of Family Law, 2004 (Toronto: Thomson Carswell, 2004) James G. McLeod at p. 127 said the following: (ii) Adult Children Where child is the age of majority or older, unless otherwise provided under the Guidelines, the amount of child support is the amount determined by applying the Guidelines as if the child were under the age of majority or, if this would be inappropriate, the amount that court considers appropriate having regard to the condition, means, needs, and other circumstances of the child and the financial ability of each spouse to contribute to the support of the child: Minty v. Minty (2003), 2003 CarswellOnt 4354 (S.C.J.) (court applying presumptive rule); Black v. Black, 2003 CarswellSask 860, 2003 SKQB 521 (CanLII), 246 Sask. R. 174 (Q.B.) (presumptive rule where child attended school year round).... [37] Here, after deducting the table amount, on an income of $21,953.52, Mr. Brown would have a gross annual income of $19,781.52. On that basis I am not prepared, even in the face of some shortfall for Warren to order Mr. Brown to pay any additional amounts. [38] I do find, however, that as Ms. Donald is supporting Warren by providing him with room and board, that Mr. Brown has an obligation to provide his support as well, and that the Guideline amount is the appropriate amount to be paid until the end of this year’s study on March 13, 2006. Re: 4. Conclusions [39] Accordingly, Mr. Brown is ordered to pay to Ms. Donald for the maintenance of Warren Brown, born February 26, 1986, the sum of $181.00 per month commencing September 1, 2005 and payable on the first of each and every month thereafter up to and including February 1, 2006. Mr. Brown is ordered to pay the sum of $90.50 on March 1, 2006 for the month of March 2006. further direct that on the application of Ms. Donald, there be review of whether or not Warren is then person within the meaning of s. 4(2) of The Family Maintenance Act, 1997 in August of 2006. [40] Mr. Brown’s applications are dismissed. In the circumstances of the issues before the Court decline to make any order as to costs.

The petitioner seeks an order for ongoing child support based on the Federal Child Support Guidelines. The respondent seeks an order that his child support obligations for their child ended July 2004 because their child ceased to be a person within the meaning of The Family Maintenance Act as he was not, by reason of the pursuit of reasonable education, unable to withdraw from his mother's charge. HELD: 1) The child completed grade 12 in 2004 having turned 18 in February. He returned to high school in the fall of 2004. He worked at McDonald's during that year and lived with his mother. Thereafter he attended SIAST and then commenced classes with New Media. He is still under his mother's charge. She provides him with room and board. He is only 19 years old. He has been pursuing his education. The fact that he changed his course of study does not disentitle him to consideration for support. He is a person within the meaning of s. 4(2) of the Act. This will continue until March 2006 when he has completed his current course of study. 2) The respondent's income fluctuates. It is appropriate to take an average of the last 3 years to determine his income. 3) Some attention must be paid to the financial ability of each parent to contribute. After deducting the table amount, the respondent would have a gross annual income of $19,781.52. On that basis the court was not prepared, even in the face of some shortfall for the child, to order the respondent to pay any additional amounts. The guideline amount is the appropriate amount to be paid until the end of this year's study.

c_2005skqb450.txt

Q.B. A.D. 1993 No. 488 J.C.S. IN THE QUEEN'S BENCH JUDICIAL CENTRE OF SASKATOON BETWEEN: HELEN CHRISTENSEN and PRO-MED ENVIRONMENT INTERIOR DESIGN INC. PLAINTIFF (RESPONDENT) and KELLY KOCAY DEFENDANT (APPLICANT) M. Hinds for the defendant (applicant) J. Bailey for the defendant (applicant) K. Stevenson, Q.C. for the plaintiff (respondent) FIAT WRIGHT J. April 15, 1998 [1] The endorsement in the file indicates that Mr. Justice Hrabinsky reserved his decision with respect to the hearing of this motion in conjunction with the proposed trial of the action. Judge Hrabinsky advises, however, that he did not intend to do so and there was no impediment to the matter being reargued and disposed of by me. Counsel are agreed that that is the appropriate course to follow. There is considerable urgency in this matter as the trial is imminent. [2] advised counsel would not have sufficient time to give reasons for my rulings on the applicant's motion because of the scheduling of possible further pre-trial conference. The parties will decide after my ruling if the conference is to proceed. [3] will deal with the various aspects of the motion as counsel did in their briefs. The issues raised in the application are complicated and not at all clear in their implications. Negotiations and Settlement of the May 3, 1985 Accident [4] The jury may be advised of the prior accident, thedate of the accident, that proceedings were commenced in thisCourt, the date of those proceedings and that the accidentultimately was settled, and the action discontinued. [5] After reviewing the authorities, I am satisfied thatthe terms of the settlement should not be disclosed nor thesum paid to settle the applicant\'s claim. Similarly the release completed by her should not be referred to as it is part and parcel of the settlement. Beyond the issue of privilege, which in itself is complete answer to the applicant's request, is the more critical problem of revisiting that action. There is no doubt in my mind that if the amount and terms of the settlement were to be reviewed that the jury would ultimately be obligated to revisit the whole entire matter as preliminary to making decision with respect to the present action. The sum paid to settlethe first action was not allocated to any head of damages sothat those issues would have to be traversed also. The Applicant\'s Prior Medical Records WithRespect to the 1985 Accident (May 1985-July 1991) [6] The applicant may introduce these records intoevidence subject to compliance with the usual rules as tonotice and admissibility. In that respect the applicant may choose to require the medical witnesses in question to appear to testify in person, subject to the usual rules as to costs. [7] Some question was raised as to the sufficiency of notice to the respondent but am satisfied from the course the proceedings have taken that the respondent has been fully apprised of the applicant's intentions in this respect for some little time. The Statement of Claim in Queen's Bench Action 1408/86 [8] The statement of claim in that action may not beentered at this trial. It is not evidence. At best it is aseries of allegations made by the respondent against the priordefendant. [9] The applicant may, however, examine the respondent as to the particulars of her claim in the earlier action and if need be refer to the material paragraphs in the previous statement of claim. The Respondent's Examination for Discovery in Queen's Bench Action 1408/86 [10] The applicant will be restricted to using therespondent\'s examination for discovery in the prior action forthe purpose of cross-examination. agree with the authorities cited by the respondent on this question also. [11] If counsel require it, might add to or extend my reasons for my decision in this respect but trust the above comments will be sufficient to indicate the rationale for my [12] The matter of costs of this application will be reserved to the trial judge.

FIAT. At issue was what evidence of a prior action could be put before the jury. The trial was imminent. HELD: 1)The jury may be advised of the prior accident, its date, that proceedings were commenced in this Court and date of those proceedings and that the accident was ultimately settled and the action discontinued. The terms of the settlement and the sum paid were not to be disclosed. Beyond the issue of privilege which was a complete answer to the request, revisiting that action was a more critical problem. The sum paid to settle the first action was not allocated to any head of damages so those issues would have to be transversed as well. 2)The applicant may introduce his prior medical records with respect to the 1985 accident subject to compliance with the usual rules as to notice and admissibility. 3)The statement of claim in that action could not be entered at this trial as it was not evidence. At best it was a series of allegations made against the prior defendant. The applicant could examine the respondent as to particulars of her claim in the earlier action and refer to material paragraphs. 4)The applicant was restricted to using the respondent's examination for discovery in the prior action for the purpose of cross-examination. 5)Costs were reserved to the trial judge. 6)The previous judge did not intend to reserve his decision with respect to the hearing of this motion and there was no impediment to the matter being reargued and disposed of.

1998canlii13455.txt

J. 2003 SKPC 139 INFORMATION #37201666, 39841185, 40484796, 40484175, 39840902 IN THE PROVINCIAL COURT FOR SASKATCHEWAN YOUTH CRIMINAL JUSTICE COURT SASKATOON, SASKATCHEWAN BETWEEN: HER MAJESTY THE QUEEN S. T. T. M. Gray For the Crown K. Healy For the Accused REASONS FOR DECISION RENDERED: S.P. WHELAN, PCJ October 6, 2003 Introduction [1] This was an application by the Provincial Director pursuant to s. 98 of the Youth Criminal Justice Act for continuation of the custody portion of a custody and supervision sentence made pursuant to s. 42(2)(n). [2] The application, dated October 3rd, came to the attention of the Court on October 3rd during the youth docket. understood that the custody portion of the young person’s sentence would run out before the next court date, on Monday, October 5th. The Young Person was unrepresented and he, Crown counsel and the Court had no prior notice of this application such that we might address the issues in docket court that day. remanded S. T. T. to appear before me on Monday, October 6th. On that date ruled that he be released pending full hearing of the application. indicated then that would provide written reasons for my decision. This decision addresses the procedure as well as the substance of the application. [3] The Court was provided with Review (Progress) Report in support of the application. This in turn referred to psychological assessments and access was had to the Young Person’s file, specifically: psychological assessment dated April 2, 2003 and the Pre-Sentence Report prepared for this sentencing, dated April 9, 2003. The Crown filed record. [4] S. T. T. was born on February 12, 1985 and was 18 years of age when he appeared on this application. He was sentenced on April 9, 2003 to 180 days open custody followed by 90 days in the community, concurrent. The custody portion of the sentence expired October 5th and the community portion expires January 3rd, 2004. The offences, together with their occurrence dates are listed as follows: Sept 25/02 aggravated assault s. 268(1) designated serious violent offence. Oct 30/02 assault s. 266 Aug 1/02 breach of probation curfew s. 26 YOA Aug 14/02 breach of undertaking curfew s. 145(3) Aug 26/02 breach of undertaking failure to attend court s. 145(2)(a) Jan 6/03 breach of undertaking curfew s. 145(3) [5] He has record of previous findings of guilt as follows: Jan 22/01 sentenced to probation for year 70 hrs community service work for: possession of stolen credit card s. 342(1)(c) break, enter theft s. 348(1)(b) take motor vehicle without consent s. 335 May 10/01 sentenced to 42 days open custody year probation for: counts of break, enter theft possession of stolen property, under s. 355(b) assault s. 266 failure to comply with disposition s. 26 YOA Oct 2/01 sentenced to mos open custody mos probation for: robbery s. 344(b) failure to comply with disposition s. 26 YOA Dec 5/01 sentenced to time served for: prowl by night s. 177 Feb 27/02 sentenced to mos probation for: failures to comply with disposition s. 26 June 26/02 sentenced to 10 hours community service work for: failure to comply with disposition s. 26 Mar 11/03 sentenced to time served for: breach of undertaking s. 145(3) [6] This Young Person is serving sentence for two offences involving violence, one of which was designated serious violent offence and the record includes crimes of violence. He was convicted of assault in May of 2001 and of robbery in October of 2001. These offences are, more so than the other entries on his record, relevant to this application as they involve violence; however the Crown did not provide particulars of these offences. [7] He has not been charged with any new offences since the sentence was imposed on April 9, 2003. His last conviction was for an offence occurring January 6, 2003. [8] It is difficult to revisit the facts of offences for which someone has already been sentenced; however the aggravated assault and domestic assault for which he is serving remain relevant to this application. [9] The September 25, 2002 aggravated assault was committed when the Young Person was intoxicated due to alcohol. He had dispute with the Complainant over the sum of $10.00 and the purchase of cigarettes. According to the Pre-sentence Report and the Crown he hit the Complainant over the left eye with beer bottle. The Complainant chased him and he retreated into house. They confronted each other again and he stabbed the Complainant with knife, injuring him just below nipple. According to the hospital report the Complainant was punched and kicked numerous times and surgery was required to repair the knife wound but this aspect of the assault was not addressed in the submissions on this application. [10] The October 30, 2002 assault was upon his girlfriend who was, to his knowledge, pregnant at the time. He punched her twice about the head and face. This occurred in the presence of her year old child and while he was heavily under the influence of alcohol and cocaine. [11] Essentially this application was brought because the case plan for community reintegration broke down. It broke down due to perceived lack of commitment or compliance with the plan on the part of S. T. T. As understand the position of the Provincial Director, the concern was that as he had not followed through with his treatment needs, he presented as high risk to re-offend in violent way. [12] The author of the Review (Progress) Report advised that serious consideration was given to making an application for continuation on August 18th due to lack of commitment or compliance with case planning. However as S. T. T. made the necessary commitments at that time the application was not pursued. [13] The timing of the application was apparently determined when subsequently, it was learned that S. T. T.’s job had been terminated and he failed to report this and left the facility for two successive evenings, under the pretence of reporting to work. On the morning of October 1st he returned in condition where it was believed he was under the influence of an illicit drug. [14] The case plan included drug and alcohol treatment, parenting classes, anger management and personal counselling and in particular an alternatives to violence program for domestic violence. His participation did not meet the expectations of the Provincial Director. [15] S. T. T. was referred by his addictions counsellor to treatment centre for admission at the end of May, 2003. He declined to attend so arrangements were made for him to receive outpatient treatment on one-to-one basis with his addictions counsellor. He was tested positive for cannabiniods while in open custody on occasions between June 17th and October 1st. Four of these positive tests occurred during re-integration leaves. He opted to attend basketball camp rather than attend parenting classes and was unwilling to attend recommended counselling services outside his contact with Elder Duquette. His reluctance to participate in the treatment programs was at least in part based upon his desire to maintain his employment. According to his July 5th letter, attached to the Progress (Review) Report he wanted to have the ability to pay support for his son. [16] August 18th case conference was called and with S. T. T.’s commitment revised case plan was developed. He agreed to: attend Alternatives to Violence, reside apart from the victim to the assault, his girlfriend, until he completed the Alternatives to Violence programs, continue employment, and continue meeting with his addictions counsellor. [17] When in September he tested positive times during re-integration leaves, the leaves were discontinued and it was resolved that he would complete his sentence custody at the open custody facility. The planned post custody residential placement broke down as consequence. [18] S. T. T. has achieved some success while in custody. He maintained job at Mitchell’s Gourmet Foods for over months. S. .T. says that it broke down when he injured his back and misunderstanding grew out of that. He attended one to one addictions counselling. He had consistent contact with an Elder who counselled him and he played basketball in the Huskie’s summer League. He incurred no new offences in the 180 days that he was in open custody or indeed since his March 10th remand. He consistently paid child support for his son in the amount of $200.00 per month and saved approximately $1500.00 from his employment. Up to the point when Dr. Vandergoot examined him in late March, 2003, his was adapting very well to the routine at the remand facility and was not seen to be violent or aggressive by facility staff. [19] The psychological assessment on file was prepared by Dr. Vandergoot in April of 2003, at the request of the Court in preparation for sentencing. She said that he expressed remorse but exhibited somewhat limited empathy. He also tended to minimize the seriousness of his offending and attempted to shift blame onto others. He expressed desire to cut down on his use of drugs and alcohol but did not think he had an addiction problem. He denied having problem with anger or aggression. He had positive aspirations which included playing basketball, obtaining his grade 12 and playing role in parenting his son. [20] Cognitive testing revealed that overall he functions in the average range of intellectual functioning. Despite history of school attendance problems his academic achievement was fairly solid; his various skills ranged in capability from grades to 12. [21] Dr. Vandergoot found that his substance use was significant criminogenic factor and that there was pattern of anti-social and criminal behaviour. She observed that his pattern of compliance indicated more success in custody than in the community. Intensive supervision during the community portion of his sentence was recommended. [22] Regarding the risk of re-offending, Dr. Vandergoot stated on page 11 of her report: “Based on this youth’s past re-offending, the seriousness of the current offenses, the repeated use of knives in his offences, his minimization and rationalization of his offences, his non-compliance with probation orders, his substance abuse, and his difficulty accepting structure and supervision in his life, he will be at risk for violent re-offending in the community.” Counsel were unable to explain the reference to “repeated use of knives”. [23] It is important to stress that the Youth Criminal Justice Act presents marked departure, procedurally, from our previous experience under the Young Offenders Act. While the new Act has been in place for over months this was the first experience with an application of this nature in Saskatoon. It’s my intention that discussion of the procedure be helpful and instructive for future applications. Where the liberty of an individual is at issue, it’s important that the new procedures under the Youth Criminal Justice Act be well understood and followed carefully. [24] It is instructive to refer to the relevant portions of the Youth Criminal Justice Act, sections 98 and 99: Application for continuation of custody (1) Within reasonable time before the expiry of the custodial portion of young person's youth sentence, the Attorney General or the provincial director may apply to the youth justice court for an order that the young person remain in custody for period not exceeding the remainder of the youth sentence. Continuation of custody (2) If the hearing for an application under subsection (1) cannot be completed before the expiry of the custodial portion of the youth sentence, the court may order that the young person remain in custody pending the determination of the application if the court is satisfied that the application was made in reasonable time, having regard to all the circumstances, and that there are compelling reasons for keeping the young person in custody. (3) The youth justice court may, after giving both parties and parent of the young person an opportunity to be heard, order that young person remain in custody for period not exceeding the remainder of the youth sentence, if it is satisfied that there are reasonable grounds to believe that (a) the young person is likely to commit serious violent offence before the expiry of the youth sentence he or she is then serving; and (b) the conditions that would be imposed on the young person if he or she were to serve portion of the youth sentence in the community would not be adequate to prevent the commission of the offence. (4) For the purpose of determining an application under subsection (1), the youth justice court shall take into consideration any factor that is relevant to the case of the young person, including (a) evidence of pattern of persistent violent behaviour and, in particular, (i) the number of offences committed by the young person that caused physical or psychological harm to any other person, (ii) the young person's difficulties in controlling violent impulses to the point of endangering the safety of any other person, (iii) the use of weapons in the commission of any offence, (iv) explicit threats of violence, (v) behaviour of brutal nature associated with the commission of any offence, and (vi) substantial degree of indifference on the part of the young person as to the reasonably foreseeable consequences, to other persons, of the young person's behaviour; (b) psychiatric or psychological evidence that physical or mental illness or disorder of the young person is of such nature that the young person is likely to commit, before the expiry of the youth sentence the young person is then serving, serious violent offence; (c) reliable information that satisfies the youth justice court that the young person is planning to commit, before the expiry of the youth sentence the young person is then serving, serious violent offence; (d) the availability of supervision programs in the community that would offer adequate protection to the public from the risk that the young person might otherwise present until the expiry of the youth sentence the young person is then serving; (e) whether the young person is more likely to reoffend if he or she serves his or her youth sentence entirely in custody without the benefits of serving portion of the youth sentence in the community under supervision; and (f) evidence of pattern of committing violent offences while he or she was serving portion of youth sentence in the community under supervision. (1) For the purpose of determining an application under section 98 (application for continuation of custody), the youth justice court shall require the provincial director to cause to be prepared, and to submit to the youth justice court, report setting out any information of which the provincial director is aware with respect to the factors set out in subsection 98(4) that may be of assistance to the court. Written or oral report (2) report referred to in subsection (1) shall be in writing unless it cannot reasonably be committed to writing, in which case it may, with leave of the youth justice court, be submitted orally in court. Provisions apply (3) Subsections 40(4) to (10) (procedures respecting pre‑sentence reports) apply, with any modifications that the circumstances require, in respect of report referred to in subsection (1). Notice of hearing (4) When an application is made under section 98 (application for continuation of custody) in respect of young person, the provincial director shall cause to be given, to the young person and to parent of the young person, at least five clear days notice of the hearing in writing. Statement of right to counsel (5) Any notice given to parent under subsection (4) shall include statement that the young person has the right to be represented by counsel. Service of notice (6) notice under subsection (4) may be served personally or may be sent by confirmed delivery service. When notice not given (7) When notice under subsection (4) is not given in accordance with this section, the youth justice court may (a) adjourn the hearing and order that the notice be given in any manner and to any person that it directs; or (b) dispense with the giving of the notice if, in the opinion of the youth justice court, having regard to the circumstances, the giving of the notice may be dispensed with. [25] The first notice of this application was contained in document described as “Review (Progress) Report”. The purpose of the Report was not clear until the last page when under Summary and Recommendations the report recommended s. 98 continuation of custody. When the Young Person appeared in the dock, he didn’t know why he was there and had not received the Report. [26] Section 99(4) to (6) provides for at least days notice in writing to the young person and his/her parent. It’s to contain advice regarding the right to counsel and is to be served personally or by confirmed delivery. Section 99(7) provides that in the absence of the required notice, the Court may adjourn or dispense with notice. In this case, on the adjourned date, Defence Counsel indicated that he was ready to proceed. These notice provisions must be read and understood in the context of the requirements of s. 98(2). [27] Section 98(2) provides that an application for continuation is to be brought within reasonable time before the expiry of the custody portion of the sentence. If the application can’t be completed before the expiry of the custody portion, the Court may order that the young person remain in custody pending the determination of the application if the court is satisfied that the application was made in reasonable time, having regard to all the circumstances, and that there are compelling reasons for keeping the young person in custody. [28] It is recommended that when an application for continuation of custody is brought pursuant to s. 98 that there be simple one page notice, prepared in language which is understandable to the young person. The notice should include some of the following basic information: advice that an application is being brought for continuation of custody (to date not beyond the community portion of the sentence now being served) pursuant to s. 98 of the Youth Criminal Justice Act and the date of the application, advice that he/she is entitled to representation by lawyer, name, DOB and location of the young person, the sentence being served with conviction, and custody and community expiry sentence dates, brief statement of the reasons for the application, the possible outcomes of the application, the name and position of the person authorized to make the application, and advice that should the application not be heard prior to the expiration of the custody portion of the sentence that the Court may be asked to remand the young person in custody until hearing and decision is made. [29] This notice, together with the required notice to parent, with proof of service should be filed with the Court before the hearing. The report may be filed at the time of the application but in any event should be filed after service upon the young person, within reasonable time prior to the hearing date. The report may be made orally, but this is not provision which should be relied upon frequently as the young person and his/her counsel will likely require the report in order to prepare for the hearing. Every effort should be made to make application and comply with the notice requirements, well in advance of the expiry of the custody portion of the sentence so that hearing date may be set in that time frame. [30] It may be difficult at times for the Attorney General or the provincial director to decide when to bring the application. Pursuant to s. 99(4) there must be minimum of clear days notice of the application but that does not mean to say that the application can or should be left to the last day of the custody portion of the sentence. The young person will require time to retain and instruct counsel and prepare for hearing which may proceed in summary fashion in youth docket court or it may require that trial court time be set aside. The reasonableness of the timing will depend upon many factors including the length of the sentence, the reasons for bringing the application and when the events which form the basis of those reasons arose and came to be known. The Court may in proper circumstances adjourn for proper notice or dispense with notice but this is provision that should not be relied upon. The safest course would be to bring the application at the earliest possible date. Release or Remand pending Hearing [31] The Court will ultimately be guided by the provisions of s. 98(2), (3) and (4) of the Act. Section 98(2) provides for the event when the hearing cannot be heard prior to the expiry of the custody portion of the sentence. In my view it directs the Court to consider the merits of the application on prima facie basis. The Court may order that the young person remain in custody pending the hearing, if satisfied that the application has been made within reasonable time having regard to the circumstances and provided there are compelling reasons for keeping the young person in custody. Section 98 would seem to permit an application to continue to hearing although the Court has declined to hold the young person in custody. [32] At the time of my decision on October 6th, reasoned that this matter might be adjourned for the hearing, notwithstanding that was of the view that the application had not been brought within reasonable time. At the time took this to be defect that was not fatal to my decision regard remand or release pending the hearing. [33] Section s. 98(3) provides the criteria for the decision to order that the young person continue in custody until the expiry of the community portion of the sentence and must be considered when answering the question, “Are there compelling reasons for keeping the young person in custody?” pending the hearing of the application. [34] At first blush the test for continuation of custody does not appear too stringent as the Court need only be satisfied on reasonable grounds of the governing criteria for continuation. However the criteria in section s. 98(3), itself is really quite limiting. [35] The 1st criteria (s. 98(3)(a)): is the young person is likely to commit serious violent offence before the expiry of the youth sentence being served? This can be relatively short period of time where the application is brought near the end of the custody portion of sentence. This young person had served 180 days in custody and had only 90 days remaining for the community supervision portion. The issue is not whether the young person is likely to re-offend in violent way but that he or she may do so within the time remaining in the sentence being served. It is very immediate limitation. “Serious violent offence” has been defined in s. of the Act to mean, “an offence in the commission of which young person causes or attempts to cause serious bodily harm.” The Court must find that this likely event. These limitations indicate that it was intended that an order for continuation of custody be step that is taken rarely. [36] The factors listed in s. 98(4) are an important guide to decision to be made at this stage of the proceedings. The Court must necessarily look to these factors to determine whether there are compelling reasons to hold the young person pending hearing. will consider these factors in light of the evidence that has been provided to the Court, referring to s. 98(4) (a) to (f) in turn: [37] (a) evidence of pattern of persistent violent behaviour and, in particular, (i) the number of offences committed by the young person that caused physical or psychological harm to any other person, (ii) the young person's difficulties in controlling violent impulses to the point of endangering the safety of any other person, (iii) the use of weapons in the commission of any offence, (iv) explicit threats of violence, (v) behaviour of brutal nature associated with the commission of any offence, and (vi) substantial degree of indifference on the part of the young person as to the reasonably foreseeable consequences, to other persons, of the young person's behaviour; The Court did not receive particulars of the robbery and assault on his record. However the information provided with respect to the aggravated assault and assault for which S. T. T. is serving confirms in my mind that physical and likely psychological harm was caused in both cases. There is no evidence that he has difficulty controlling violent impulses. We know that weapon was used in the commission of the aggravated assault. He has no convictions for uttering threats. The information available does not suggest “brutal behaviour” in the commission of an offence. Nor is there evidence of substantial degree of indifference. The previous assault and robbery convictions occurred in 2001 and while the current offences occurred within one month of each other, there are extensive periods where there is no evidence of violent behaviour. There is some suggestion in the psychological assessment that there has been pattern of violence in the relationship between this youth and his girlfriend, but as there are no convictions, am not in position to draw any conclusions, even on balance of probabilities, about this alleged behaviour. In conclusion, while there is evidence of pattern of violent behaviour, would not classify it as persistent. [38] b) psychiatric or psychological evidence that physical or mental illness or disorder of the young person is of such nature that the young person is likely to commit, before the expiry of the youth sentence the young person is then serving, serious violent offence; This young person has not been diagnosed with physical or mental illness or disorder. [39] (c) reliable information that satisfies the youth justice court that the young person is planning to commit, before the expiry of the youth sentence the young person is then serving, serious violent offence; There is no evidence of planning to commit serious violent offence. [40] (d) the availability of supervision programs in the community that would offer adequate protection to the public from the risk that the young person might otherwise present until the expiry of the youth sentence the young person is then serving; Some inquiry was made about the degree of supervision that was planned for this young person. It was intended that he live in room and board situation. The Court recommended that greater degree of supervision be considered. This points to some awkwardness in the legislation because the conditions for supervision in custody and supervision sentence are determined by the provincial director. At full hearing of this matter the availability of supervision programs in the community would need to be fully canvassed. By way of illustration, the Court is aware that, dependant upon risk assessment information, more intensive supervision may be provided, including reporting to the youth worker every 48 hours. The Court was not provided with the risk assessment information although the Review (Progress) Report referred to one having been conducted with no change in the risk. [41] (e) whether the young person is more likely to reoffend if he or she serves his or her youth sentence entirely in custody without the benefits of serving portion of the youth sentence in the community under supervision; and There was no evidence in this regard. [42] (f) evidence of pattern of committing violent offences while he or she was serving portion of youth sentence in the community under supervision. There was no evidence in this regard. [43] The 2nd criteria (s. 98(3)(b)) requires consideration of the conditions that would be imposed and whether they would be adequate to prevent the commission of serious violent offence. It is my understanding that following my decision on October 6th that there was meeting to discuss the conditions of his supervision in the community. In the discussion before me, this was not fully canvassed. The representatives of the Provincial Director had yet to consider conditions of supervision in light of this latest decision to make application for continuation. Clearly there are number of alternatives short of continuing open custody which can increase the level of supervision and these may be canvassed at the hearing of this matter. Decision on the merits of the application [44] Each case be decided on its own merits. However the Youth Criminal Justice Act has provided considerable guidance insofar as the decision to be made on an application for continuation. This Court concerned itself with the question of release pending the hearing of the application, alone. This was done, over the request from Defence Counsel to decide the application on the merits at that time. This aspect of the legislation was new to Counsel and believe the first application of its kind in the province, hence it seemed appropriate to proceed slowly, despite the Court’s obvious view of the merits. There was likely relevant information which was not provided to me. [45] It is important when considering an application pursuant to s. 98 that we not lose sight of the principles in the Youth Criminal Justice Act. In this application the Declaration of Principle found in s. 3, the Purpose and Principles of Sentencing found in s. 38(1) and the Purpose and Principles applicable to custody and Supervision, found in section 83 of the Act are all instructive. Perhaps the principles most applicable to consideration of this application are as follows: Declaration of Principle Section 3.(1) The following principles apply in this Act: (a) the youth criminal justice system is intended to (ii) rehabilitate young persons who commit offences and reintegrate them into society, (b) the criminal justice system emphasize the following: (i) rehabilitation and reintegration,. (iii) enhanced procedural protection to ensure that young persons are treated fairly and that their rights, including their right to privacy, are protected,. (d) special considerations apply in respect of proceedings against young persons and, in particular, (i) young persons have rights and freedoms in their own right, such as right to be heard in the course of and to participate in the processes, other than the decision to prosecute, that lead to decisions that affect them, and young persons have special guarantees of their rights and freedoms, (iv) parents should be informed of measures or proceedings involving their children and encouraged to support them in addressing their offending behaviour. Sentencing Purpose and Principles Section 38. (1) The purpose of sentencing under section 42 is to hold young person accountable for an offence through the imposition of just sanctions that have meaningful consequences for the young person and that promote his or her rehabilitation and reintegration into society, thereby contributing to the long-term protection of the public. Custody and Supervision (1) The purpose of the youth custody and supervision system is to contribute to the protection of society by (a) carrying out sentences imposed by courts through the safe, fair and humane custody and supervision of young persons; and (b) assisting young persons to be rehabilitated and reintegrated into the community as law‑abiding citizens, by providing effective programs to young persons in custody and while under supervision in the community. Principles to be used (2) In addition to the principles set out in section 3, the following principles are to be used in achieving that purpose: (a) that the least restrictive measures consistent with the protection of the public, of personnel working with young persons and of young persons be used; (b) that young persons sentenced to custody retain the rights of other young persons, except the rights that are necessarily removed or restricted as consequence of sentence under this Act or another Act of Parliament; (c) that the youth custody and supervision system facilitate the involvement of the families of young persons and members of the public; (d) that custody and supervision decisions be made in forthright, fair and timely manner, and that young persons have access to an effective review procedure; and (e) that placements of young persons where they are treated as adults not disadvantage them with respect to their eligibility for and conditions of release. [46] On October 6th, dealt only with the decision pursuant to s. 98(2) and declined to hold the young person in custody pending the hearing of the application for continuation. It was adjourned to later date at the option of the Crown for the hearing of the application. This decision was made having regard to the applicable purposes and principles under the Youth Criminal Justice Act, the circumstances underlying this application and the test and factors governing an application for continuation of custody pursuant to s. 98, discussed above. As this was novel step for the Provincial Director and the Crown, it seemed best to proceed in step by step process. [47] With regard to my decision, make the following pointed observations: Notice and application within reasonable time [48] The application was not brought in a reasonable time having regard to all of the circumstances. It had been under consideration as early as August 18th and might have been brought at that time. When the calendar is running the Provincial Director must be decisive and put the young person on notice that the application is being made. It’s preferable to discontinue an application because of change in circumstances, rather than wait to the last minute to bring the application. [49] The young person did not receive days clear notice and there was no reason to waive notice. He was not advised of his right to counsel. There was no notice to parent. The day notice requirement would have taken the application outside the custody period. The Provincial Director proceeded, not with form of notice, but with the report that might be ordered by the Court pursuant to s. 99(3) and as such the “notice” was not in good format which should contain information as outlined in paragraph [28] above. [50] The early preparation of the Review (Progress) Report did facilitate early consideration of this application and it is a good practice to prepare it in anticipation of it being ordered by the Court (s.99(2)), especially having regard to the importance of conducting the hearing prior to the expiry of the custody portion of the sentence and it should be available at the earliest date possible. It represents a form of disclosure for the young person and as such should be available well in advance of the hearing date. [51] The application was brought, not because of the loss of employment, or even the failure to be accountable for the two nights that he pretended to be at work. This was just the last event that signalled lack of commitment on the part of S. T. T. Rather the application was brought due to failure to follow through with treatment plans. Compelling reasons to keep the young person in custody [52] This decision, made pursuant to s. 98(2) was guided by the test in s. 98(3) and the factors outlined in s. 98(4). In this case the Young Person has serious history of violence but there is nothing in the information presented which even suggests that he is likely to commit serious violent offence within the remaining 90 days of his sentence. While his risk to re-offend has not improved since he was sentenced and he has not followed through with all of the treatment plans and expectations, he held job in the community for over months, and made some personal strides. There was no suggestion of violence following the occurrence of the assault on October 30th, in the community or in custody, having been remanded March 10th, 2003. have discussed the factors and their application to these facts in more detail above. The application lacked compelling reasons to keep the Young Person in custody. Procedure on an application for continuation of custody [53] This application should proceed typically in summary fashion, where counsel agree at the outset that the Court may make decision based on materials filed and argument. In some circumstances it may be appropriate to set the matter for hearing at later date for viva voce testimony, especially where there are factual issues in dispute. The burden of the application lays with the applicant. As the Crown conducts the application typically, there needs to be coordination between the provincial director and the Crown in advance of such applications so that the Crown will be ready to proceed. The Crown will be expected to proceed with little notice and will be guided largely by the time remaining in the custodial portion of the sentence. For many reasons It is not desirable that the hearing take place once the community portion of the sentence has commenced. The merits of an application for continuation of custody [54] This decision is governed most specifically by s. 98(3) and (4). The test in s. 98(3) is restricted to the likelihood that serious violent offence might be committed within time remaining in the sentence being served. While the factors listed in s. 98(4) are not exhaustive, it seems apparent from these factors and the test in s. 98(3) that an application for continuation of custody is designed to deal with relatively rare circumstances. One must be careful not to use such an application to revisit the wisdom of the sentence originally imposed. Nor should it be used specifically to influence cooperation in the rehabilitation and reintegration plans of the provincial director. In some cases failure to follow through with treatment plans may be sufficient for such an application but the backdrop to the application must necessarily focus upon the factors in s. 98(4) and compelling evidence of the following: i) likelihood that serious violent offence will be committed within short time. ii) while serving the custody portion of the sentence, actual or planned violence, aggression, or threats of violence. iii) history of pattern of violence which is particularly disturbing for its lack of remorse, indifference and cruelty. iv) psychological or other evidence of physical or mental disorder or propensity which places the concern for violent re-offending into category, requiring psychiatric or psychological treatment and supervision such as may only be provided in custodial setting. v) history which indicates an inability to remain violence free in the community for anything but short period. vi) degree of certainty that protection and supervision concerns override the benefits of rehabilitation and reintegration. Rights of the young person [55] Having considered the nature of this application in some depth, it is important to reinforce the importance of focussing on the young person’s rights when such applications are contemplated. These rights have been emphasized in s. 3(1)(d)(i) of the Declaration of Principles applicable to the Act as whole, which provides: (i) young persons have rights and freedoms in their own right, such as right to be heard in the course of and to participate in the processes, other than the decision to prosecute, that lead to decisions that affect them, and young persons have special guarantees of their rights and freedoms, This emphasis on rights is found again in the Principles applicable to Custody and Supervision, found at s. 83(2) (b) and (d) which provide: (b) that young persons sentenced to custody retain the rights of other young persons, except the rights that are necessarily removed or restricted as consequence of sentence under this Act or another Act of Parliament; (d) that custody and supervision decisions be made in forthright, fair and timely manner, and that young persons have access to an effective review procedure; [56] The Attorney General and provincial director must be mindful of the rights of the young person in any decision-making process which affects the liberty of young person. Such is the case in the event of an application for continuation pursuant to s. 98. The application should be communicated clearly and in timely fashion. The young person must be advised of his right to consult with and be represented to lawyer on the application. The notice of the application should be served in reasonable time prior to the expiry of the custody portion of the sentence. It should clearly and concisely provide the young person with sufficient information so that he/she knows what is at stake so that reasoned decision may be made in response. Parliament has developed scheme which calls for community reintegration period in any sentence. In the relatively rare circumstances when an application for continuation of custody is brought, the applicant, the Attorney General and/or the provincial director, will bear the burden of establishing the appropriateness of continuing the custody portion of the sentence and should expect to be held to the procedure and guiding principles in the Youth Criminal Justice Act. [57] These then are the reasons for my decision rendered October 6th and referred to in paragraph [2] above. Dated at Saskatoon, Saskatchewan this 14th day of October, 2003. S. P. Whelan

The Provincial Director applied pursuant to s. 98 of the Youth Criminal Justice Act for continuance of the custody portion of a custody and supervision sentence made pursuant to s. 42(2)(n). The Provincial Director was concerned that, because S.T.T. had not followed through with his treatment, he was at a high risk to offend again. HELD: The application lacked compelling reasons to keep the young person in custody. 1) This was the first experience with an application of this nature in Saskatoon and the Court provided a detailed discussion of the procedure for the benefit of future applications. 2) The application was not brought in a reasonable time having regard to all of the circumstances. The young person must be put on notice that the application is being made. 3) The Review (Progress) Report is a form of disclosure for the young person and should be available well in advance of the hearing.

c_2003skpc139.txt

S.C.A. No. 02318 IN THE SUPREME COURT OF NOVA SCOTIA APPEAL DIVISION Hallett, Matthews and Freeman, JJ.A. BETWEEN: ATLAS SUPPLY COMPANY OF CANADA LIMITED, body corporate and YARMOUTH EQUIPMENT LIMITED, and JOHN M. MURPHY Respondent Charles Peter McLellan Bernard Francis Miller for the appellant D.A. Caldwell, Q.C. Dennis James for the respondent Appeal Heard: January 14, 1991 Judgment Delivered: April 23, 1991 THE COURT: Appeal dismissed per reasons for judgment of Matthews, J.A.; Freeman, J.A. concurring; Hallett, J.A. dissenting by separate reasons MATTHEWS, J.A.: The principal issue before us is whether an exclusionary clause in written agreement between the parties precludes giving effect to acts and statements made by the agents of the appellant to the respondent Murphy. The appellant is a wholly owned subsidiary of Imperial Oil involved in the distribution and sale of automotive parts and related products. Prior to 1985 that activity, exclusively wholesale, was achieved through nation wide network of outlets leased from the appellant and operated by agents on commission basis. Those agents were not required to make personal investment nor were they financially responsible for the inventory. There were nine such agencies in Atlantic Canada. The appellant became concerned respecting its position in the market place. For example, the total revenue from sales for the Atlas agency at Yarmouth, Nova Scotia, had declined from $700‑$750,000.00 in the early 1980's to $450‑$500,000.00 during 1983‑85. Franchises such as Canadian Tire, together with specialty operations dealing directly with the public, were adversely affecting the appellant's business. In or about 1985‑6 the appellant carried out an intensive and extensive assessment of its total operations with view to changing its manner of conducting business by way of an agency to offering franchise to business people. Atlas had no previous experience in retailing. However, it is obvious, Imperial Oil had. Atlas took about year to prepare franchise program to replace the existing agencies. The appellant would enter the retail market and challenge its competitors. In essence this new system would require that local business people make personal investment in the franchise, provide among other things, premises, chattels, personnel and vehicles and assume control and financial responsibility for the inventory. John MacDougall, the appellant's regional manager for Atlantic Canada, had the duty to obtain franchisee suitable to the appellant for Western Nova Scotia, to replace its Yarmouth agency. As the trial judge, the Honourable Mr. Justice W.J. Grant, in his decision rendered April 4, 1990 said: "The recent experience Atlas had. with Yarmouth was anything but encouraging. It was declining operating as an independent agency. It reached the point where it was no longer independent but had to be combined with Metro. When it became satellite of the Dartmouth agency it declined even more." MacDougall prepared promotional brochure incorporating some of the material he received from his head office. At trial, MacDougall admitted that the purpose of the brochure was to inform, induce and entice prospective franchisees. Before advertising for franchisees, MacDougall sent the brochure to the appellant's national sales manager R.M. Ritchie, who was specifically responsible for the franchise program. In memo dated October 23, 1985, Ritchie informed MacDougall that: "We have taken the liberty of producing pro forma financial outlook for the above (Yarmouth) agency as franchise operation. The sales mix is based on the data obtained through the Inventory Turns Report. Based on the typical type of operation, as we know it today, the outlook indicates that we do not have viable case for development." After detailed analysis, the net earnings after finance costs as disclosed in the pro forma financial outlook for wholesale and retail sales totalled $11,000.00. However, MacDougall prepared his own projections. These were in several important aspects more enthusiastic than those‑ of his superior, Ritchie. His material was in much less detailed form than Ritchie's and, importantly, showed the combined net earnings for wholesale and retail sales at $33,000.00. The respondent, Yarmouth Equipment, expressed interest in the Yarmouth franchise. It had only been in operation for short period, having been incorporated in late 1985. It was hardware venture, selling nuts and bolts in bulk, hydraulic hoses, rubber products, industrial vee belts and line of fire extinguishers. Its targeted market included fishing plants, service stations, contractors and auto body shops. Its principal officer, the respondent Murphy, was business man, primarily involved in real estate and rental properties. He had high school equivalency; had been partner in Shell Service Station and part owner of used car business; was president of construction company, company involved in building and selling fishing boats, and company in the wholesale and building supply business. He had little prior experience in the automotive parts industry or retail sales. In each of his enterprises, Murphy had knowledgeable partners or employees who carried out the majority of the work and management. All of this was known to the appellant. MacDougall did not give Murphy the Ritchie calculations, nor did he inform Murphy until the discovery stage of this litigation that, in the opinion of Ritchie, the Yarmouth operation, as discussed with Murphy, was not viable. The following exchange took place during MacDougall's cross‑examination: "Q. Yeah, and in Atlantic Canada the plan was virtually to convert all nine agencies to franchise agencies? A. As recall that is correct. Q. Yeah, and the purpose of the promotional literature that was put together was to inform prospective franchisees was it? Q. And ultimately to induce them to come into the franchise program if they were otherwise suitable? Q. Right. And so the object of the promotional literature was that, to entice prospective franchise operators, correct? A. Yes. That's correct." Ritchie subsequently, on January 15, 1986, adjusted some of the MacDougall figures. The result was somewhat brighter than his October 23, 1985 figures, but they were projected over three year period. Ritchie sent that information to MacDougall. Again MacDougall did not give this material to Murphy. The appellant argues that MacDougall's adjusted projections only showed "marginally greater potential" than Ritchie's. Twenty‑two thousand dollars may not be great difference if few hundred thousand dollars were estimated as the combined earnings, but here that is not the case. The point is, that MacDougall was in possession of figures prepared by Ritchie and his staff. Ritchie was the national sales manager specifically responsible for the franchise program. Ritchie's projections were such that Atlas did "not have viable case for development" in Yarmouth. MacDougall's projections were prepared to induce franchisee to enter into the agreement. They did not display Ritchie's gloomy forecast. The respondents' argument is that in order to induce Murphy to enter into the franchise agreement MacDougall gave his projections to Murphy and refrained from informing Murphy that other projections had been prepared by his head office which led Ritchie to conclude that the proposed Yarmouth franchise was not viable. The trial judge remarked: "MacDougall said he knew that Murphy did not have the resources to check out the accuracy of the Atlas projections. He said he knew Murphy was relying on them. He said he told Murphy that they 'put the resources of Atlas into the program'. He also knew Murphy had no experience in the sale of retail auto parts. He said the figures for specialty sales were 'guess work', put up arbitrarily." And further: "Murphy said he relied on the Atlas projections. He had no means to check them out nor did he have any reason to doubt the figures as he knew Atlas was owned by Esso. He said he was assured by MacDougall that Atlas had done its homework." MacDougall did not give the "Atlas projections" or its "homework" to Murphy. He gave Murphy instead his more favourable projections. The following is an exchange from MacDougall's direct examination: "Q. Now what comment could you make as to the, what this showed you when you prepared these projections as to the viability of the, of the operation operating as you've shown here? A. Well it was marginal, $33,000 for the investment plus the effort and responsibility, it was marginal type operation." When MacDougall showed Murphy his projections, Murphy immediately raised some concerns as to the retail sales figures. Ultimately, it was this aspect of the business which led to the failure of both the Yarmouth and Charlottetown franchises. The following is from Murphy's direct examination: "Q. Yeah, let's go to those projections and now think they're found at page 11 of tab one My Lord. What discussion was there about the projections then Mr. Murphy? A. We asked Mr. MacDougall how they arrived at that figure of $93,000 because there was no retail sales of Atlas never before in Yarmouth and we knew that, and Mr. MacDougall quickly went to this population. Q. Yes? That's page 16 My Lord. That's the one headed Franchise Program Yarmouth, Bridgewater, Kentville, ...population. A. That's the one yes. And he assured us that these figures and the projections were all done scientifically through believe himself, or head office at Toronto and that it was based on figures that they had received from competitors of theirs that 20% of the wholesale business should be retail and from there relied, we relied on his projections, Atlas's projections. Q. Did you have any way or any means yourself to check or confirm or not, the projections that were made? A. had no reason to doubt these figures because know Atlas is wholly owned subsidiary of Esso and Mr. MacDougall was representing Atlas so at that time when they tell me they've done their homework, was assured and had no reason to further check." The figures and projections were not those done scientifically and as result of investigation and research by Atlas's head office. They were MacDougall's but held out to be from head office to persuade Murphy to rely upon them. Some of the MacDougall projections, particularly respecting retail sales, were guess work; they were based upon assumptions which, the evidence discloses, could not be justified. Those assumptions included: "(a) the potential of the retail market; (b) the profit potential of the franchise; (c) the target for the specialty sales; (d) staff of two, rather than three; (e) the franchisee was required to devote full time to the business without pay." Murphy was not informed that the MacDougall projections were based on two employees, rather than three as determined by Ritchie; or that both the projections of MacDougall and Ritchie were based upon franchisee spending full time in the business without remuneration. MacDougall in cross‑examination, when commenting upon the projections of the total earnings after finance costs at $11,000.00 said: "A. Well, that's certainly not viable, would think not. Q. No that's not viable at all is it, especially if you are, assuming as you say you did, that the owner is going to donate his labour free, then it's not viable at all is it? A. That's absolutely correct, yes. Q. No, no, and note that Mr. Ritchie has inserted here manpower from two, vehicles two, and there's no place there for the assumption that the owner donates his time for nothing is there? [Actually Ritchie had altered MacDougall's required manpower from two to three] Q. In fact, in any of these documents that we see that were provided by Atlas, we do not see the state of assumption that the owner is expected to donate his time for nothing, do we? A. That is correct. Q. Nor was that discussed with, with Mr. Murphy, that he was expected to donate his time for nothing, correct? A. Mr. Murphy was aware that the franchise program was designed for the franchisee to assume full time responsibility at the franchise location. Q. Oh no doubt about that, since he's the owner, but there's great difference between him being one of the employees and him being the owner isn't there? A. Yes. Q. Yeah, because you, you knew, believe you knew in your own mind that it took at least three people to run the franchise operation in Yarmouth, not two. But you say your assumption was he was expected to be the third of them? A. believe that he was aware of that as well. Q. Oh, did you tell him that? A. think we discussed it yes. Q. In your discovery however, you haven't mentioned anything about that discussion have you, even after asked you to relate all of your discussions with Mr. Murphy. You don't recall ever having said that before do you? A. guess this is the first time. Q. Yeah, yeah, and in any event, it's, it's very important assumption to make in these kind of projections that the owner is expected to devote his time as an employee to the company on full time basis. That's very important assumption isn't it? A. Yes it certainly is. Q. And it makes great deal of difference whether the net result of the operations makes the thing viable, true? A. Yes. Q. For example, on net, net earnings after finance costs of $11,000 there simply is no room for the employer to get either paid for his work or to get an adequate return on his investment of $106,000, is there? A. cannot believe because it's such an important assumption that we would not have discussed it, you know, at sometime. Q. But you just don't recall having discussed it though do you? A. No not at this stage; not specifically." agree that is such an important assumption that it should have been discussed with Murphy. It was not. The trial judge said: "It would require full time franchisee who, from MacDougall's financial assessment, would be required to work without pay. MacDougall knew Murphy was not prepared to spend much time at the business because he had other irons in the fire including real estate, manufacturing and sales operations." Murphy said that he informed MacDougall "immediately", that is, in the early discussions that he was involved in other enterprises and he could not devote full time to the franchise. There can be no doubt MacDougall and Ritchie knew that to be the fact. Atlas was in possession of the figures produced from all of its resources over substantial period of time. That information was not made available to Murphy. Indeed it was withheld from him. He was led to believe that the MacDougall figures were those of Atlas's head office. As result, Murphy did not have equal opportunity with Atlas to properly assess the project. MacDougall meanwhile was inducing Murphy to enter into the agreement, holding out that the appellant had scientifically done its homework. As the trial judge concluded, MacDougall not only expected and intended Murphy to rely upon MacDougall's financial forecast, he knew Murphy was relying upon it. He also concluded that Murphy had neither the resources nor ability to check the financial forecast given to him and that indeed MacDougall knew that Murphy did not do so. All of this led the trial judge to the reasonable conclusion that: "It seemed to me that if MacDougall had been open with Murphy and told him what Ritchie thought and what Ritchie expected, the deal would never have been completed. As well had MacDougall inquired into the viability of Yarmouth Equipment and passed that information on to Ritchie probably the deal would have been squelched. At no time was MacDougall up front with the defendant Murphy by telling him that the Atlas experience in latter years with Yarmouth had been bad or that he was required to marry up the franchise with an otherwise successful business." That conclusion, based as it was upon evidence adduced before the trial judge, should not be disturbed unless it is demonstrated to be clearly wrong. In the circumstances, as will later discuss, in my opinion, these parties were not in an equal bargaining position. It is significant that Ritchie did not testify. In late January, 1986, MacDougall and Ritchie met with Murphy in Yarmouth. They visited the proposed site for the franchise and found it adequate. The trial judge found that: "There were discussions of the franchise and its viability. Ritchie raised no concerns of the projections or the viability of the operation." This despite Ritchie's prior memo to MacDougall concluding that the proposal, without alternatives, was not viable. These alternatives, as set out in Ritchie's memo of October 23, 1985, were: "1. Marriage with an existing jobber business in the Digby, Yarmouth, Liverpool, Shelburne, Bridgewater areas. 2. Possibility of development of the Cash'n Carry business to $100,000.00 rather than the $60,000.00 indicated on the outlook. The additional margin generated from retail would present viable case. 3. Operation of the franchise as wagon jobber, which would eliminate sales vehicle and driver and make the offer viable one." MacDougall neither informed Murphy of the existence of the memo nor of any of its contents. On February 28, 1986, the respondent Yarmouth Equipment, entered into franchise agreement with the appellant. The respondent Murphy signed the agreement on behalf of Yarmouth Equipment and as guarantor of the obligations of Yarmouth Equipment. The trial judge remarked: "The franchisee operation transferred the financial responsibilities to the franchisee who purchased direct from Atlas. It was responsible to pay Atlas. It dealt in cash with the public and was responsible for any credit extended. It also penetrated the retail market for the first time. It was certainly in the interests of Atlas to transfer these responsibilities to the franchisees. The Atlas agency concept may not have been exactly sinking ship but it was certainly leaking, particularly the Yarmouth agency." And also: "Atlas of course, wanted successful franchisee. If it was the sole operation then of course it would depend on its own merits. These merits apparently were not there, at least Mr. Ritchie concluded that Yarmouth was not viable and he so instructed MacDougall." MacDougall and Ritchie knew that Murphy was engaged in other businesses and could not spend full time with the franchise. Also the appellant knew after the franchise began that Murphy was not spending full time there and also knew that in June, 1986 Murphy moved to Ottawa due to the special education requirements of two of his children. However, the appellant did not inform Murphy that the financial assumptions in the material given to Murphy were based upon the fact that Murphy was to spend full time in the franchise without pay. The trial judge concluded that: "During March, April, May and early June of 1986 Murphy spent 50‑60% of his time at the franchise, which was more than he had anticipated. Murphy said he discussed his Ottawa move with MacDougall in mid‑May. He told him that the former employees of Atlas could handle the operation. He said there was no disagreement from MacDougall. On June 6th he and his wife and family moved to Ottawa." It certainly is reasonable to assume that had Murphy been informed of the appellant's adjustment in the figures, based as they were on ill founded assumptions, and the conclusions reached, then as the trial judge said "the deal would never have been completed"; it "would have been squelched". In October and November, 1986, Murphy's new accountant expressed great concern about the profitability of both Yarmouth Equipment and the franchise. He later prepared projections which demonstrated that both businesses were losing propositions. Unfortunately Ritchie's dire predictions came true and the Yarmouth franchise suffered from an "horrendous failure" in its retail sales. On February 12, 1987, the appellant delivered notice of default to the respondents, thus bringing the franchise to an end. Indeed, by 1987, the only two Atlas retail franchises in the Atlantic provinces, Yarmouth and Charlottetown, were not in business. The appellant (plaintiff) had sued for damages claiming that the respondent (defendant) Yarmouth Equipment had defaulted in its obligations to pay to the appellant certain amounts due under the terms of the franchise agreement. Those obligations were guaranteed by the respondent (defendant) Murphy. The respondents counterclaimed for damages. The trial judge found that Yarmouth Equipment was "doomed to failure regardless of Atlas". Its inventory and other assets were sold and the proceeds of that liquidation sale used to pay down the bank indebtedness. The appellant was adjudged to recover judgment against the respondent, Yarmouth Equipment, for $206,344.00 being the sum agreed upon by counsel. There has been no appeal from that ruling. The trial judge made certain findings of fact: "1. The projections of Ritchie showed that the franchise was not viable on its own merits. 2. MacDougall held out to Murphy through the material that the project was viable on its own merits. He held out that the profits were reasonably achievable. 3. MacDougall had an honest belief that all the material he got from head office was factual and accurate. However, it was not all either factual or accurate. 4. Ritchie found the forecasts showed the retail figures too high, the expenses too low and the projected profit too high. 5. The projections of MacDougall were inaccurate as to expenses and grossly inaccurate as to retail sales and profits. 6. MacDougall knew that Murphy was relying on the financial forecasts he had given him. He expected Murphy to rely on them and intended Murphy to do so. 7. MacDougall knew that Murphy did not have the resources and other ability to check out the Atlas financial forecasts and that he did not do so. 8. MacDougall knew that Murphy had questioned his retail sales forecast but was reassured by MacDougall telling him the resources of Atlas had gone into the forecasts. 9. It was the financial forecast which induced Murphy to enter into the contract and MacDougall knew that fact. The purpose of the financial forecast was to induce purchasers to enter into the contracts. 10. MacDougall knew and Ritchie knew that Murphy was not going to operate the franchise fulltime himself but would rely on the former Atlas employees. 11. Murphy went to Ottawa with the knowledge of Atlas and with no objection from Atlas.” After review of some of the relevant law the trial judge said: "FINDING: find the projections of MacDougall for Atlas relating to retail sales, expenses and profit were warranty. find they were meant to be relied upon by Murphy as an inducement to contract. find they were relied upon by Murphy and induced him to contract. Atlas was in position to have that information, purported to have that information and gave that information as being accurate. find the warranty was breached." The franchise agreement contained an exclusionary clause. The trial judge held that the clause did not foreclose the respondents' right to rely upon the breach of warranty. The trial judge weighed and evaluated all of the evidence. have carried out the duty of re‑examining the evidence as expressed in Stein v. The Ship 'Kathy K', 1975 CanLII 146 (SCC), [1976] S.C.R. 802. In my opinion, the appellant has not established that the trial judge made some palpable and overriding error which affected his assessment of the facts. It is evident from the decision that the trial judge must have concluded that Murphy was credible witness. have set out the facts, comments thereon and the trial judge's findings in some detail as they pertain to the representations made by the appellant's agents to the respondent Murphy. The effect of these representations upon the exclusionary clause in the agreement must now be considered. The exclusionary clause, sometimes referred to as disclaimer and the other relevant clauses in the agreement are: "2.06 Entire Agreement This Agreement, any documents incorporated by reference herein and the Schedules hereto constitute the entire agreement between the parties pertaining to the subject matter hereof and supersede all prior agreements, understandings, negotiations and discussions with respect to the subject matter hereof whether oral or written. Except as provided herein, there are no conditions, representations, warranties, undertakings, inducements, promises or agreements, whether direct, indirect, collateral, express or implied made by ATLAS to the Franchisee. No supplement, modification or waiver of this Agreement shall be binding unless executed in writing by the Guarantor and authorized signing officers of ATLAS and the Franchisee. Failure to deliver or accept delivery of Automotive Products which is excused by or results from the operation of any provision of this Agreement shall not extend the term of this Agreement." "4.02 Other Business The Franchisee shall not, directly or indirectly, carry on, be engaged in, be concerned with or interested in any business (other than the Franchised Business) that is carried on or conducted from the premises or adjacent thereto, whether or not related in any manner to the Franchised Business, hereunder, except with the express written permission of ATLAS." "6.01 Operation In order to maintain the high quality and uniform standards, methods, procedures and specifications of the System and to promote and protect the goodwill associated therewith, the Franchisee shall, except where otherwise agreed to in writing by ATLAS:... (o) subject to Section 4.02, cause the Guarantor to provide direct supervision and devote full time and attention to the Franchised Business in order to ensure the proper, efficient and effective operation thereof, and maintain at all times sufficient number of trained personnel to service all Customers of the Franchised Business;" "18.10 Investigation The Franchisee acknowledges that it has conducted an independent investigation of the Franchised Business and ATLAS and recognizes that the business venture contemplated by this Agreement involves business risks and that its success will be largely dependent upon the business ability of the Franchisee. ATLAS expressly disclaims the making of and the Franchisee acknowledges that it has not received any warranty or guarantee, express or implied, as to the potential volume, profits or success of the Franchised Business." "18.11 Review of Agreement The Franchisee acknowledges that it has received, has had ample time to read and has read this Agreement. THE FRANCHISEE FURTHER ACKNOWLEDGES THAT IT HAS HAD AN ADEQUATE OPPORTUNITY TO BE ADVISED BY ADVISORS OF ITS OWN CHOOSING REGARDING ALL PERTINENT ASPECTS OF THE FRANCHISED BUSINESS, ATLAS AND THIS AGREEMENT." In respect to clauses 4.02 and 6.01, the appellant knew from the time of the initial interview with Murphy that Murphy had no attention of spending his full time in respect to the franchise; that he did not do so; that Murphy had other businesses which required his time and attention; and indeed one of Ritchie's alternate proposals was that there should be "Marriage with an existing jobber business". The trial judge remarked: "MacDougall and Ritchie on behalf of Atlas both knew that Murphy intended only to work on the franchise part‑time. From the tenor of Tab this franchise would only be granted in violation of this Article." The appellant now wishes to seize upon the existence of Yarmouth Equipment to demonstrate that Ritchie's concerns were alleviated because of Murphy's involvement with that company. In so doing it follows that the appellant is forced into the position that it had no intention of applying the provisions of clauses 4.02 and 6.01. With hindsight, the appellant cannot contend that Ritchie's forecast was relieved because of the existence of Yarmouth Equipment. That company could not fit within the category of "an existing jobber business", as intended in Ritchie's memo of October 23, 1985. Yarmouth Equipment was new and different type of venture for Murphy, having been incorporated in late 1985. No one on behalf of Atlas suggested to Murphy that the viability of the franchise would depend upon the success of Yarmouth Equipment. The trial judge said: "Apparently MacDougall did not inquire in detail into the health of Yarmouth Equipment, otherwise he would have learned that it had just started and was having very rocky beginning". In respect to clause 18.10 the appellant knew full well that Murphy had not conducted any such independent investigation; that he did not have the resources and other ability to do so or to check the Atlas financial forecasts; that MacDougall and Ritchie intended that Murphy be induced to enter into the agreement by having him rely upon the projections produced by MacDougall. Not only did the appellant know that Murphy had not conducted any such independent investigation, but by MacDougall's conduct, Murphy was encouraged not to do so. That is, the appellant participated in breach of the terms of the agreement which it prepared. The trial judge held respecting clause 18.10: "MacDougall, being Atlas, knew Murphy was not doing any independent investigation as he did not have the ability or means to do so. MacDougall gave the material on volume and profits to Murphy. This clause is totally in. conflict with the facts of what actually happened. Atlas cannot have MacDougall on its behalf do these acts, acquire this knowledge and make these inducements and also have their drafters deny that which in fact happened." He had earlier commented: "MacDougall said he knew that Murphy did not have the resources to check out the accuracy of the Atlas projections. He said he knew Murphy was relying on them. He said he told Murphy that they 'put the resources of Atlas into the program'. He also knew Murphy had no experience in the sale of retail auto parts. He said the figures for specialty sales were 'guess work', put up arbitrarily." And further: "Murphy said he relied on the Atlas projections. He had no means to check them out nor did he have any reason to doubt the figures as he knew Atlas was owned by Esso. He said he was assured by MacDougall that Atlas had done its homework." must now consider clause 2.06 and the applicable law. have reviewed the case law cited by counsel, other cases and articles. In particular both counsel rely upon the following cases: 1. Beaufort Realties, 1980 CanLII 47 (SCC), [1980] S.C.R. 718; 2. Esso Petroleum, [1976] All E.R. 5; 3. Harry v. Kreutziger (1978), 1978 CanLII 393 (BC CA), 95 D.L.R. (3d) 231; 4. Heilbut, Symons, [1913] A.C. 30; 5. Hunter Engineering, 1989 CanLII 129 (SCC), [1989] S.C.R. 426; 6. Lister v. Dunlop (1978), 1978 CanLII 2165 (ON SC), 85 D.L.R. (3d) 321; 7. Lloyd's Bank v. Bundy, [1974] All E.R. 757; 8. Midland D. Central Trust (1985), 68 N.S.R. (2d) 103; 9. Pao On and Others, [1979] All E.R. 65; 10. Photo Production, [1980] All E.R. 556; 11. Pizza Hut v. P.M. Foods (1985), 1985 CanLII 1301 (AB QB), 61 A.R. 340; 12. Sodd Corp. v. Tessis (1977), 1977 CanLII 1415 (ON CA), 79 D.L.R. (3d) 632; 13. Kathy K., 1975 CanLII 146 (SCC), [1976] S.C.R. 802; 14. Stephenson v. Hilti (1989), 1989 CanLII 191 (NS SC), 93 N.S.R. (2d) 366. agree with appellant's counsel, the contracts considered in some cases contain no exclusionary clause and thus the conclusions reached in those cases cannot be given the weight of those where the clause is present. Historically, the common‑law sought, as far as possible, to give effect to the presumed intention of the contracting parties. There was reluctance to impugn the certainty of the written contract. Hence the so‑called parol evidence rule. "Extrinsic evidence is generally inadmissible when it would, if accepted, have the effect of adding to, varying or contradicting the terms of judicial record, transaction required by law to be in writing, or document constituting valid and effective contract or other transaction." Cross on Evidence, sixth edition, 1985 at pp. 615‑6. Exclusionary clauses are often fair and necessary. However, when evidence discloses otherwise, courts have devised various methods to avoid injustice. For example, the contra proferentum principle, collateral warranty, fundamental breach and unconscionability. Waddams, in the Law of Contracts, 1984, traced the development of the doctrine of unconscionability and its use to control exclusionary clauses which, as he said, "are commonly found in standard form printed documents" and stated at pp. 348‑9: "It is submitted that the only workable criterion is rule of unconscionability, for exclusions can be perfectly fair and limitations very unfair. ... more direct attack has come in the form of the doctrine known as 'fundamental breach'." Waddams traced the evolution of the "rule" that "an exemption clause cannot be construed to excuse liability for 'fundamental breach' of contract or for 'breach of fundamental term'" (p. 350), and suggested "a deep rooted unwillingness [on the part of courts] to enforce agreements they see as unfair". (p. 352). The Supreme Court of Canada recently considered the issue of fundamental breach in Hunter Engineering Co. Inc. v. Syncrude, 1989 CanLII 129 (SCC), [1989] S.C.R. 426. The facts there differ considerably from the instant case. This case and others are cited only for the principles contained therein. In Hunter there was an express warranty in the contract and outside the contract, statutory warranties. The contract included clause stating that the: "Provisions of this paragraph represent the only warranty...and no other warranty conditions, statutory or otherwise shall be implied". Dickson, C.J., with LaForest, J. concurring, reviewed number of English and Canadian authorities, including some will mention later, demonstrating the changes in the law over the years. He and Wilson, J. approached the doctrine of fundamental breach in different fashion. He said at pp. 455‑6: "I have had the advantage of reading the reasons for judgment prepared by my colleague, Justice Wilson, in this appeal and agree with her disposition of the liability of Allis‑Chalmers. In my view, the warranty clauses in the Allis‑Chalmers contract effectively excluded liability for defective gearboxes after the warranty period expired. With respect, disagree, however, with Wilson J.'s approach to the doctrine of fundamental breach. am inclined to adopt the course charted by the House of Lords in Photo Production Ltd. v. Securicor Transport Ltd., [1980] A.C. 827, and to treat fundamental breach as matter of contract construction. do not favour, as suggested by Wilson J., requiring the court to assess the reasonableness of enforcing the contract terms after the court has already determined the meaning of the contract based on ordinary requiring the court to assess the reasonableness of enforcing the contract terms after the court has already determined the meaning of the contract based on ordinary principles of contract interpretation. In my view, the courts should not disturb the bargain the parties have struck, and am inclined to replace the doctrine of fundamental breach with rule that holds the parties to the terms of their agreement, provided the agreement is not unconscionable."(My emphasis) With respect to counsel, in my opinion this passage cannot be relied upon to demonstrate the sanctity of contract, for the caveat is there: the parties will be held to the terms of their agreement "provided the agreement is not unconscionable". Parenthetically add that Wilson J. in Hunter made similar comments. The chief justice commented at p. 456: "The doctrine of fundamental breach in the context of clauses excluding party from contractual liability has been confusing at the best of times. Simply put, the doctrine has served to relieve parties from the effects of contractual terms, excluding liability for deficient performance where the effects of these terms have seemed particularly harsh. Lord Wilberforce acknowledged this in Photo Production, supra, at p. 843: 1. The doctrine of 'fundamental breach' in spite of its imperfections and doubtful parentage has served useful purpose. There was large number of problems, productive of injustice, in which it was worse than unsatisfactory to leave exception clauses to operate. In cases where extreme unfairness would result from the operation of an exclusion clause, fundamental breach of contract was said to have occurred. .. Thus, even if the parties excluded liability by clear and express language, they could still be liable for fundamental breach of contract. This rule of law was rapidly embraced by both English and Canadian courts." He remarked at p. 462: "Professor Waddams makes two crucially important points. One is that not all exclusion clauses are unreasonable. This fact is ignored by the rule of law approach to fundamental breach. In the commercial context, clauses limiting or excluding liability are negotiated as part of the general contract. As they do with all other contractual terms, the parties bargain for the consequences of deficient performance. In the usual situation, exclusion clauses will be reflected in the contract price. Professor Waddams second point is that exclusion clauses are not the only contractual provisions which may lead to unfairness. There appears to be no sound reason for applying special rules in the case of clauses excluding liability than for other clauses producing harsh results. In light of the unnecessary complexities the doctrine of fundamental breach has created, the resulting uncertainty in the law, and the unrefined nature of the doctrine as tool for averting unfairness, am much inclined to lay the doctrine of fundamental breach to rest, and where necessary and appropriate, to deal explicitly with unconscionability. In my view, there is much to be gained by addressing directly the protection of the weak from over‑reaching by the strong, rather than relying on the artifical legal doctrine of 'fundamental breach'. There is little value in cloaking the inquiry behind construct that takes on its own idiosyncratic traits, sometimes at odds with concerns of fairness. This is precisely what has happened with the doctrine of fundamental breach. It is preferable to interpret the terms of the contract, in an attempt to determine exactly what the parties agreed. If on its true construction the contract excludes liability for the kind of breach that occurred, the party in breach will generally be saved from liability. Only where the contract is unconscionable, as might arise from situations of unequal bargaining power between the parties, should the courts interfere with agreements the parties have freely concluded. The courts do not blindly enforce harsh or unconscionable bargains and, as Professor Waddams has argued, the doctrine of 'fundamental breach', may best be understood as but one manifestation of general underlying principle which explains judicial intervention in variety of contractual settings. Explicitly addressing concerns of unconscionability and inequality of bargaining power allows the courts to focus expressly on the real grounds for refusing to give force to contractual term said to have been agreed to by the parties. wish to add that, in my view, directly considering the issues of contract construction and unconscionability will often lead to the same result as would have been reached using the doctrine of fundamental breach, but with the advantage of clearly addressing the real issues at stake." am inclined to similar approach in the instant case. We must explicitly address "concerns of unconscionability and inequality of bargaining power" in order to determine the force to be given to relevant clauses in the agreement and, in particular 2.06 and 18.10. As read the reasons of Dickson, C.J. in Hunter, issues of unconscionability and inequality of bargaining power are to be determined from the facts. contract may be found to be unconscionable when there is unequal bargaining power between the parties. However, unequal bargaining power is not the only situation where unconscionability may arise. The Chief Justice did not review the law of unconscionability. He concluded at p. 464: "I have no doubt that unconscionability is not an issue in this case. Both Allis‑Chalmers and Syncrude are large and commercially sophisticated companies. Both parties knew or should have known what they were doing and what they had bargained for when they entered into the contract. There is no suggestion that Syncrude was pressured in any way to agree to terms to which it did not wish to assent." What then constitutes unconscionable behaviour? The task of determining whether acts are unconscionable is at times difficult because the meaning of the word is far from precise. suggest that it cannot be determined by recourse to dictionary or precedents. Those can assist but they cannot precisely apply. The answer must be found within the particular facts of the case: the result will differ as do the facts. As explained by Fridman in The Law of Contract in Canada, second edition, 1986, at p. 303, in contractual setting there may be present features which encourage and entitle court to apply equitable principles to intervene and grant rescission: those features are the ingredients of what might be termed "equitable fraud". It is not fraud in the classical, common‑law sense, involving misrepresentations of the truth. Nor is there any improper application of pressure amounting to duress or its equitable analogue of undue influence. "Nonetheless, the conduct of one party in obtaining the assent of the other to particular contract was of such character that court might well consider that to uphold the ensuing contract would be to perpetrate an injustice and produce an unfair result. contract may be rescinded if the behaviour of one contracting party was unconscionable." He continued at p. 304: "Where bargain is held to be unconscionable, it is not the consent of the victim that is impugned, but the reasonableness of the bargain, the conscientiousness of the other party, the equitable character of the transaction. In making such decisions, court may be concerned with the internal state of mind of the party seeking rescission. But it is also concerned with external matters, the state of affairs surrounding the making of the contract, to the extent that such externalities operated on the mind of the party seeking rescission." For our purposes his following comments (pp.304‑5) distinguishing unconscionability and undue influence are useful: "Moreover finding that there had not been undue influence does not preclude decision in favour of party who also alleges unconscionable conduct. In contrast with an attack upon consent, which is what is involved in plea of undue influence, plea that bargain is unconscionable, or has been obtained by unconscionable means or methods, permits court to invoke relief against an unfair advantage gained by an unconscientious use of power by stronger party against weaker. Where such misuse of power is shown, it creates presumption of fraud, in the equitable not common‑law sense. That presumption the stronger party must repel by proving that the bargain was fair, just and reasonable. The two doctrines are closely related. Indeed the latter is obviously an offshoot of the former. But they are distinct, even though their parentage is the same." In Lloyd's Bank v. Bundy, [1974] All E.R. 757 (C.A.), Lord Denning focused his attention on inequality of bargaining power while the majority of the court focused on undue influence in the traditional sense and the fiduciary duty which was found to exist between the bank and Mr. Bundy. After commenting upon Bundy, Fridman at p. 307 said: "...the traditional view of unconscionability is that it involves conduct that is tantamount to fraud in moral, if not strictly legal sense." In the author's view: "...it may be suggested that between traditional conceptions of what is unconscionable and the reformulation of what is unjust in terms of inequality of bargaining power there is not wide gap. To judge by recent Canadian authority, the two notions appear to be almost interchangeable." Lord Scarman in National Westminster Bank v. Morgan, [1985] All E.R. 821, after discussing several cases including Lloyd's Bank v. Bundy said at p. 831: "There is no precisely defined law setting limits to the equitable jurisdiction of court to relieve against undue influence. This is the world of doctrine, not of neat and tidy rules. The courts of equity have developed body of learning enabling relief to be granted where the law has to treat the transaction as unimpeachable unless it can be held to have been procured by undue influence. It is the unimpeachability at law of disadvantageous transaction which is the starting point from which the court advances to consider whether the transaction is the product merely of one's own folly or of the undue influence exercised by another. court in the exercise of this equitable jurisdiction is court of conscience. Definition is poor instrument when used to determine whether transaction is or is not unconscionable: this is question which depends on the particular facts of the case." In DeWolfe v. Mansour et al (1986), 73 N.S.R. (2d) 110 Nunn, J. refused to set aside contract between developer and real estate agent by reason of unconscionability because the parties had received independent legal advice; the party alleging unconscionability was not forthright in his dealings surrounding the execution of the contract; and there was no unfair advantage or inequality of bargaining power between the parties. He referred to Fridman and Lord Denning's reasons in Lloyd's Bank v. Bundy and then said (p. 114‑5): "In the same case Sir Eric Sachs, whose judgment was held by the House of Lords to be the real essence of the Lloyd's Bank case in National Westminster Bank v. Morgan, [1985] All E.R. 821, stated at p. 768: 'It may in the particular circumstances entail that the person in whom confidence has been reposed should insist on independent advice being obtained or ensuring in one way or another that the person being asked to execute document is not insufficiently informed of some factor which could affect his judgment. The duty has been well stated as being one to ensure that the person liable to be influenced has formed "an independent and informed judgment", or to use the phraseology of Lord Evershed, M.R. in Zamet v. Hyman, "after full, free and informed thought"." It should be noted that in Bundy the court was discussing fiduciary relationships. However, in my view, the‑statement of Sir Eric Sachs is applicable to situation where there is an inequality of bargaining power due to one party not being informed of all of the relevant and pertinent information, keeping in mind all of the surrounding circumstances. Sodd Corporation Inc. v. Tessis (1977), 1977 CanLII 1415 (ON CA), 79 D.L.R. (3d) 632 is in many respects similar to that at bar, other than the exemption clause preceded, rather than followed, the impugned statements. The Ontario Court of Appeal, per Lacourciere, J.A. at p. 633 commented that the trial judge found: "...that the defendant was negligent in misrepresenting the quantity and value of the items included in the assets of the bankrupt advertised for sale, and that the defendant was not entitled to rely on an exemption clause in the advertisement which reads as follows: 'Tenders will be accepted on the basis that the Purchaser has inspected the assets and title thereto, and no warranty or condition is expressed or can be implied as to designation, classification, quality or condition or in any manner whatsoever.'" He continued at p. 635: "However, the present case did, in fact, involve pre‑contractual negligent misrepresentation which induced the plaintiff to submit its tender, and the defendant's liability follows on the authority of Esso Petroleum Co. Ltd. v. Mardon, [1976] All E.R. 5; see also Walter Cabott Construction Ltd. v. The Queen (1974), 1974 CanLII 1263 (FC), 44 D.L.R. (3d) 82; varied (1975), 1975 CanLII 1054 (FCA), 69 D.L.R. (3d) 542, 12 N.R. 285. In our view, the trial Judge was correct in finding that the plaintiff was not negligent in relying on licensed trustee who had caused an inventory of the stock to be taken, when the plaintiff's opportunity for inspection was, at best, limited. There is one further aspect to consider with respect to liability. While the plaintiff's claim was pleaded on the basis of contract, it was clearly presented at trial as being founded upon the tort of negligent misrepresentation, without any amendments being sought or granted. In our view, while an amendment at this stage would not be unfair, it is unnecessary inasmuch as the defendant's negligent misstatement also constituted collateral warranty inducing the plaintiff to submit its tender. The defendant's stipulation amounted, in our view, to binding promise, depriving him of the terms of the exemption. On that basis, the conclusion can be supported in contract: Couchman v. Hill, [1974] K.B. 554; Esso Petroleum Co. Ltd. v. Mardon, supra. It is clear from the cases that the defendant's representation, whether characterized as negligent misstatement or as collateral warranty, falls outside the exemption clause."(My emphasis) McIntyre, J. A. in Harry v. Kreutziger (1978), 1978 CanLII 393 (BC CA), 95 D.L.R. (3d) 231 (B.C.C.A.) after reviewing series of cases dealing with unconscionability due to the unequal bargaining powers of the parties stated at p. 237: "From these authorities this rule emerges. Where claim is made that bargain is unconscionable, it must be shown for success that there was inequality in the position of the parties due to the ignorance, need or distress of the weaker, which would leave him in the power of the stronger, coupled with proof of substantial unfairness in the bargain. When this has been shown presumption of fraud is raised and the stronger must show, in order to preserve his bargain, that it was fair and reasonable. Like many principles of law, it is much easier to state than to apply in any given case. In the cases cited above the facts were such that the application of the remedy was clearly required. In the case at bar the facts do not speak as clearly. None the less, am of the view that this appeal should succeed and the contract be rescinded." He continued at p. 239: "It is true, as he (the trial judge) has pointed out, that appellant could have sought advice; he could have torn up the cheque; he could have refused to have any dealings with the respondent; but this will be true of almost any case where an unconscionable bargain is claimed. If the appellant had done these things, no problem would have arisen. The fact remains, however, he did not, and in my view of the evidence it was because he was overborned by the respondent because of the inequality in their positions and the principles of the cases cited apply." This observation by Maclntyre, J.A. is apt here. Applying that reasoning, albeit to different factual situation, if Murphy had given more thought to the specifics of the contract and had obtained legal advice or had prepared his own proposal, then the problems would not have arisen at the stage they did. However, he did not do so. He relied upon the representations made by MacDougall and MacDougall intended him to do so. As result he should not be denied consideration of the principles of unconscionability, as so urged by the appellant. The most frequently cited cases respecting the principle of unconscionability are Morrison v. Coast Finance Ltd. et al (1965), 1965 CanLII 493 (BC CA), 55 D.L.R. (2d) 710; Lloyd's Bank v. Bundy, supra; and Harry v. Kreutziger, supra. These cases represent somewhat different approaches to unconscionability, however, all of them are interrelated. In Morrison the traditional view of unconscionability (pre Bundy) was applied. As earlier mentioned, Bundy focused more on the inequality of the bargaining positions of the parties. However, all three have similar base. In Harry, Lambert, J. A. proposed community standards approach. He commented that he was not satisfied that the principle, as stated by Davey, J.A. in Morrison and by Maclntyre, J.A. in Harry, "exhausts all cases where rescission might be ordered under the rubric of unconscionable bargain". (p. 240). He then said: "I agree wholeheartedly with McIntyre, J.A., when he says that it is easier to state the principle than to apply it in given case. Indeed, to my mind, the principle is only of the most general guidance. It is not principle of the type which can be applied to facts to produce, by logical process, clear conclusion. To think of. it as such principle is to obscure the real process of consideration and judgment that leads to decision in this kind of case." He continued at p. 241: "In my opinion,questions as to whether use of power was unconscionable, an advantage was unfair or very unfair, consideration was grossly inadequate, or bargaining power was grievously impaired, to select words from both statements of principle, the Morrison case and the Bundy case, are really aspects of one single question. That single question is whether the transaction seen as whole, is sufficiently divergent from community standards of commercial morality that it should be rescinded. To my mind, the framing of the question in that way prevents the real issue from being obscured by an isolated consideration of number of separate questions; as, for example, consideration of whether the consideration was grossly inadequate, rather than merely inadequate, separate from the consideration of whether bargaining power was grievously impaired, or merely badly impaired. Such separate consideration of separate questions produced by the application of synthetic rule tends to obscure rather than aid the process of decision."(My emphasis) In Stephenson v. Hilti (Canada Ltd.) (1989), 1989 CanLII 191 (NS SC), 93 N.S.R. (2d) 366, Hallett, J., then of the Trial Division of this court, considered bargain struck to terminate an employment contract. The parties clearly were not in an equal bargaining position. He commented at pp. 369‑70: "The courts must be very slow to set aside an agreement made between parties for valuable consideration. However, agreements that are unconscionable will be set aside. The law on the subject has been stated by Mr. Justice Jones of the Appeal Division of this court in Stevens v. Stevens (1983), 57 N.S.R. (2d) 141; 120 A.P.R. 141, at p. 145 as being 'well settled'. Mr. Justice Jones then referred to the decision of Valta v. Valta and Johansson (1979), 1978 CanLII 410 (BC CA), R.F.L. (2d) 133, where Taggart, J.A., of the British Columbia Court of Appeal quoted from decision in Morrison v. Coast Finance Ltd. as setting out the law on unconscionable transaction. In the latter decision, the court stated: '...a plea that bargain is unconscionable invokes relief against an unfair advantage gained by an unconscientious use of power by stronger party against weaker. On such claim the material ingredients are proof of inequality in the position of the parties arising out of the ignorance, need or distress of the weaker, which left him in the power of the stronger, and proof of substantial unfairness of the bargain obtained by the stronger. On proof of those circumstances, it creates presumption of fraud which the stronger must repel by proving that the bargain was fair, just and reasonable.' He continued at p. 370: "Professor Fridman further stated with respect to employment contracts at p. 311: 'Reading these cases, and those which have turned on the traditional idea of unconscionability; the impression is obtained that, whichever test is being utilized and applied, the basic question for the court is the same: has there been an unconscientious use or abuse of power or position by one party against the other. In the final analysis, there does not seem to be too vast difference, if any at all, between rescission for unconscionable behaviour and rescission for taking advantage of an inequality of bargaining power. Whichever test is used, however, one issue does arise. How far is it valid and desirable for courts to exercise some discretionary power over contracts that have been negotiated without fraud, duress or undue influence in the classical sense, and without there having been some kind of misrepresentation, albeit innocent, giving rise to mistake that induced the making of the contract?' In Harry v. Kreutziger (1979), 1978 CanLII 393 (BC CA), 95 D.L.R. (3d) 231, the British Columbia Court of Appeal reviewed the authorities on unconscionable transactions. Mr. Justice Lambert proposed fairly simple test for determining whether transaction was unconscionable where he stated at p. 241 that the single question is whether the transaction, seen as whole, is sufficiently divergent from community standards of commercial morality that it should be rescinded. To put it even more succinctly, is the transaction so unconscionable that it requires the intervention of the court considering all the circumstances surrounding the making of the agreement." The approach of Lambert, J. in Harry is similar to that later expressed by Chief Justice Dickson in Hunter. Both cut through the artificial concepts surrounding this aspect of contract law. For emphasis, again refer to the statements of the Chief Justice in Hunter at p. 461‑2 earlier set forth. In Hunter Wilson, J. with L'Heureux‑Dube, J. concurring, agreed with the conclusion reached by the Chief Justice, but preferred as the test whether it would be fair and reasonable to enforce clear and unambiguous exclusion clause after breach had occurred. court must determine the boundaries of tolerable conduct. She referred (pp. 514‑5) to the decision of Anderson, J. in Davidson v. Three Spruces Realty Ltd. (1977), 1977 CanLII 1630 (BC SC), 79 D.L.R. (3d) 481 (B.C.S.C.) and his proposed criteria to ascertain whether freedom to contract had been abused so as to make it unconscionable for one of the parties (the bailee) to exempt itself from liability due to an exculpatory clause. She then said: "Anderson J.'s judgment in Davidson drew on Gillespie Brothers Co. v. Roy Bowles Transport Ltd., [1973] Q.B. 400 (C.A.), in which Lord Denning said at pp. 415‑16: The time may come when this process of 'construing' the contract can be pursued no further. The words are too clear to permit of it. Are the courts then powerless? Are they to permit the party to enforce his unreasonable clause, even when it is 'so unreasonable, or applied so unreasonably, as to be unconscionable? When it gets to this point, would say, as said many years ago: 'there is the vigilance of the common law which, while allowing freedom of contract, watches to see that it is not abused': John Lee Son (Grantham) Ltd. v. Railway Executive [1949] All E.R. 581. It will not allow party to exempt himself from his liability at common law when it would be quite unconscionable for him to do so. (Emphasis added). At pp. 509‑10 she set out the fair and reasonable test: "It is however, in my view an entirely different matter for the courts to determine after particular breach has occurred whether an exclusion clause should be enforced or not. This, believe, was the issue addressed by this Court in Beaufort Realties. In Beaufort Realties this Court accepted the proposition enunciated in Photo Production that no rule of law invalidated or extinguished exclusion clauses in the event of fundamental breach but rather that they should be given their natural and true construction so that the parties' agreement would be given effect. Nevertheless the Court, in approving the approach taken by the Ontario Court of Appeal in Beaufort Realties, recognized at the same time the need for courts to determine whether in the context of the particular breach which had occurred it was fair and reasonable to enforce the clause in favour of the party who had committed that breach even if the exclusion clause was clear and unambiguous. The relevant question for the Court in Beaufort Realties was: is it fair and reasonable in the context of this fundamental breach that the exclusion clause continue to operate for the benefit of the party responsible for the fundamental breach? In other words, should party be able to commit fundamental breach secure in the knowledge that no liability can attend it? Or should there be room for the courts to say: this party is now trying to have his cake and eat it too. He is seeking to escape almost entirely the burdens of the transaction but enlist the support of the courts to enforce its benefits." critique of Hunter is contained in an article by Robert Flannigan in (1990) 69 C.B.R. 515. To return to the instant case, in respect to clause 2.06, the trial judge held: "The wording of this (exclusionary) clause is very broad. The agreement and the forecasts were all given to Murphy at the same time or came in the same mail. The agreement attempts to create an artificial situation. MacDougall who gave the material to Murphy and discussed the projections with Murphy, also gave him copy of the Agreement. MacDougall, being Atlas, knew that Murphy was relying on that forecast. MacDougall considered it an inducement and knew that in reliance upon that inducement Murphy was signing up. find Atlas cannot divorce itself from the other material it gave out. find that in looking at all the circumstances the financial forecasts formed part of the documentary material upon which the contract was based and the inducement made. Atlas held MacDougall out as the inducer. It cannot now disassociate itself from his acts of inducement." He also found that the appellant was desirous of transferring the operation of the business to franchisees with the consequential relief of responsibilities and obligations. He found that the MacDougall projections were represented to Murphy to be factual and accurate and intended to be relied upon by Murphy to induce him to sign the contract. At the same time the appellant knew that Murphy did not have the resources or ability to check the accuracy of those projections. The trial judge found that the projections "were inaccurate as to expenses and grossly inaccurate as to retail sales and profits"; that even though MacDougall knew that Murphy had questioned the retail sales forecast, MacDougall reassured him "telling him that the resources of Atlas had gone into the forecast". It was Ritchie who produced the proforma financial outlook in detail. He concluded that "we do not have viable case for development" in Yarmouth. Ritchie's figures and his conclusion were not given to Murphy although there was ample opportunity to do so prior to the signing of the agreement. What can be said of the appellant's conduct? Was it such that it should be termed unconscionable? Counsel did not draw Hunter to the attention of the trial judge nor was the issue of unconscionability argued before him as it was before us. The trial judge had the unique opportunity to see the witnesses and evaluate their testimony first hand, perspective not given to us. It is evident from his comments that he believed the testimony of Murphy. Assessments of credibility were, of necessity, involved in the trial judge's conclusion. His various comments and findings of fact are pertinent to the issues of unconscionability. In the case at bar it is of importance to note that the franchise agreement was entered into on the one hand by large national company with international connections through its parent, Imperial Oil, and on the other by small business man who, though no neophite, had little or no retail experience. The agreement was prepared by the appellant and affords it protection including the exclusionary clause, while imposing obligations upon the franchisee. MacDougall admitted that the promotional brochure given to Murphy was not only for the purpose of informing a prospective franchisee, but of inducing and enticing such a prospect to enter into the contract. Murphy was informed that the appellant carried out an intensive and costly assessment of the market for such franchises. The MacDougall projections were given to Murphy with the intent that he rely upon them. Simply put: they should not have been relied upon. Even if MacDougall believed his own calculations, they ignored those of Ritchie which had forced Ritchie to the conclusion that the proposed operation was not viable without alterations. Indeed, MacDougall admitted that the assumption that on net earnings of $11,000.00 "there simply is no reason for the employer to get either paid for his work or to get an adequate return on his investment" was so important that he could not believe that it was not discussed with Murphy. It was not. MacDougall, in an attempt to induce Murphy to enter into the agreement gave only his financial forecast to Murphy, telling him "the resources of Atlas had gone into the forecast". He did this knowing, as the trial judge found, that "Murphy did not have the resources and ability to check out the Atlas financial forecast and that he did not do so." The MacDougall projections were based upon assumptions which could not be justified even to Ritchie. In addition MacDougall knew that, in respect to Murphy, they were false, for they were based on the rather startling proposition that the franchisee was expected to work full time without pay. Murphy was not informed of this "important assumption". Placing only the MacDougall projections forward, alleging that they had the full force of Atlas (and Imperial Oil) behind them, in these circumstances, these parties were not bargaining as equals. Not only that, but it is clear that the appellant had information which would have dissuaded any but the foolhardy to enter into the agreement and it withheld that information from Murphy. It appears to me that, having made certain statements respecting projections to Murphy, intending him to rely upon them, which statements were determinative respecting the viability of the franchise and knowing that Murphy did so rely, the appellant had an obligation to inform Murphy of the fact that MaDougall's projections were flawed to the extent that the project was not viable. Withholding that information from Murphy, deprived him of ability to then determine the extent of the flaws and if he wished to enter into the agreement. can only conclude, as did the trial judge, that "if MacDougall had been open with Murphy and told him what Ritchie thought and what Ritchie expected, the deal would never have been completed." In these circumstances, would apply the comments of Sir Eric Sachs in Bundy: the appellant should have ensured "in one way or another that the person being asked to execute document is not insufficiently informed of some factor which could affect his judgment." Business people entering into contract must have some certainty that its provisions will be applied and that courts will refrain from rewriting the contract. That proposition however is subject to the important caveat: the court will intervene, and properly so, when the party desiring to enforce its exclusionary clause has engaged in unconscionable conduct. To paraphrase Sir Eric Sachs in Bundy: Murphy reposed confidence in the appellant, for the reasons previously set out. The appellant knew that he did. The appellant also knew that by withholding the Ritchie figures and conclusion as expressed in his memo of October 23, 1985, Murphy was "not sufficiently informed of some factor which would affect his judgment". The trial judge said and repeat: "It seemed to me that if MacDougall had been open with Murphy and told him what Ritchie thought and what Ritchie expected, the deal would never have been completed. As well had MacDougall inquired into the viability of Yarmouth Equipment and passed that information on to Ritchie probably the deal would have been squelched. At no time was MacDougall up front with the defendant Murphy by telling him that the Atlas experience in latter years with Yarmouth had been bad or that he was required to marry up the franchise with an otherwise successful business.” There can be no doubt that Murphy had the agreement in sufficient time for him to have studied it and indeed he had time to give it to his solicitor for advice. However, it is equally clear, that he was relying upon MacDougall and Ritchie. In the circumstances, in my opinion, the position statements made by MacDougall and the withholding of contrary information, categorized MacDougall's projections as unconscionable. Although the principle of unconscionability should be used sparingly to avoid an exclusionary clause, this appellant should not be permitted to engage in such conduct secure in the knowledge that no liability could be imposed upon it because of the exclusionary clause or, as Wilson, J. said at p. 510 in Hunter: "...this party is now trying to have his cake and eat it too. He is seeking to escape almost entirely the burdens of the transaction but enlist the support of the courts to enforce its benefits." Employing the words of Fridman, supra, the appellant's conduct here, in my opinion, has been such that "it creates presumption of fraud, in the equitable not common‑law sense" and the appellant has not proved that "the bargain was fair, just and reasonable". To enforce the exclusionary clause in these circumstances would, in my opinion, produce an unconscionable bargain. In determining that Murphy should be discharged from his guarantee under the agreement the trial judge said: "I consider most of the debt arising from the Atlas franchise was owed to Atlas. It purchased all or nearly all of its stock from Atlas. The stock for its nuts and bolts operation was purchased through its credit arrangement with the bank. Atlas had the opportunity to have its account reduced by taking back inventory. It was not prepared to do so. Had it done so rather than expose the stock to the liquidation sale and its reduced prices the amount owing to Atlas would be less than at present. It did so to the prejudice of Murphy as guarantor. Atlas put the franchise on C.O.D. basis in January 1987. Notice of default was given on February 12, 1987. Under Article 16.05 the plaintiff had the obligation to take back the inventory at the current sale price less restocking charge. Murphy said the bank was prepared to waive its lien and the evidence disclosed no other encumbrances to 'good and marketable title'. find in failing to do so the plaintiff has acted in way which has compromised the rights of the guarantor. The details of the liquidation sale are not in evidence. The evidence was that the normal retail sales for the inventory were not there. The liquidation sale was reasonable act after the refusal of Atlas to take the inventory back. There was no suggestion that the defendants squandered the profits or the proceeds of the sales. In The Law of Guarantee, McGuinnes, Article 10.57 (page 283): 'A creditor must deal with security in reasonable manner so as to ensure that the maximum amount is derivable from it to satisfy the guaranteed debt'. find the failure of Atlas to accept the inventory was unreasonable. accept the evidence of Murphy that it was twice offered to Atlas with the bank's encumbrance waived. In the circumstances here find the defendant Murphy discharged from his guarantee. dismiss the claim against Murphy." Earlier he commented: "Murphy said he offered to return the stock to Atlas. He made arrangements with the bank that it would permit the return as the bank held some security. However, Atlas was not prepared to take the stock back. He said the stock, clear of encumbrances, was twice offered to Atlas and twice refused. This was not contradicted." study of the transcript discloses that Murphy testified that he had asked his brother, who was his lawyer, to contact Atlas and to offer all of the stock to them. There is no evidence that this was ever done. The brother did not testify. Mr. Murphy said that his bank manager had told him he was willing to let the stock go back, but no one from the bank testified. Murphy admitted in cross‑examination that he could not say that Atlas was ever told that the bank would permit the return of the inventory. He further admitted that the bank manager did not tell him "that the bank waived any claim to the proceeds of that inventory". An employee of Atlas testified that the inventory was not offered back to Atlas and that the bank had seized it. There was no admissible evidence that the inventory was offered to the appellant prior to the liquidation sale or that the bank was prepared to release its charge. The money realized from the sale of the inventory was paid to the bank to reduce its claim against Yarmouth Equipment and, as well, against Murphy under the guarantee he had given to the bank. In my opinion Murphy should not be released from his guarantee to the appellant to the extent of the value of the Atlas inventory. In all other respects Murphy should be released from that guarantee due to the unconscionable conduct of the appellant. As to the counterclaim of Murphy the trial judge said: "The defendant Murphy shall recover from the plaintiff his payment of $7,000.00 for the franchise and the sum of $16,500.00 which he paid for start‑up expenses of the franchise including renovations to meet the requirements of Atlas and the sign. accept the evidence of Murphy on these expenditures which were well detailed in his very thorough cross‑examination. He shall have pre‑judgment interest. will hear counsel orally or by letter on the relevant date and percentage." The pleadings were vague as to this claim. However evidence was produced, counsel argued and the trial judge made his findings. In the circumstances would not disturb his conclusions. In summary, I would allow the appeal in part. The appellant shall have judgment against Murphy for the value of the inventory together with pre‑judgment interest. In all other respects would dismiss the appeal. As the claim in respect to the inventory took but small portion of the argument, would divide the costs 80/20 in favour of Murphy, both here and in the court below. The contention was not pressed on appeal: there will be no costs to any party on that contention. J.A. FREEMAN, J.A.: (Concurring with separate reasons) In 1986 Yarmouth, Nova Scotia, businessman purchased an automative parts franchise from subsidiary of major multinationalcorporation and combined it with his newly established hardware business, the respondent, Yarmouth Equipment Limited. In nine months the new venture was dead with substantial losses all around. More accurately, the new venture was stillborn and collapsed after nine months of losses. It appears to have had no real chance of succeeding. The claim of the appellant, Atlas Supply, the vendor corporation, to recover its losses under guarantee signed by the businessman, the respondent Murphy, was dismissed at trial. Atlas has appealed. The failure did not result from any identified negligence or mismanagement on the part of Mr. Murphy or his company. It did not result from sudden change in the market; the vendor corporation was well aware of downtrend. The failure was the inevitable result of the inherent unsoundness of the whole enterprise. The respondents did not have the resources to identify that unsoundness. They were relying on the. appellant, which did. As part of the consideration for the franchise, Mr. Murphy signed personal guarantee to pay the losses of the appellant, Atlas Supply Company of Canada Ltd., subsidiary of the Imperial Oil Company. With the greatest respect for the reasoning of Mr. Justice Hallett, concur with the conclusions of Mr. Justice Matthews that the respondent should not be fully liable on the guarantee. These, briefly, are my reasons; have relied on the facts developed in both of the other judgments. The parties signed an agreement at the conclusion of negotiations in which the retail "nuts and bolts" business of Yarmouth Equipment came under consideration by Atlas as suitable vehicle for franchise. The agreement contained the guarantee and an exclusionary clause that the document was complete on its face with no further warranties. Mr. Murphy had the legal advice of his brother, lawyer, before he signed. No amount of legal scrutiny of the document could have uncovered the underlying weakness concealed by the flawed negotiations. Because there were no disclosures to the contrary, all parties were entitled to believe, and to believe that the other parties believed, that they were entering into the written agreement with reasonable expectations the business could succeed. If Atlas actually believed the venture could succeed, its belief was not reasonable one for national business with illustrious parentage. Mr. Murphy paid his money and signed the guarantee with the expectation that the transaction was sound within the business judgment of Atlas: that nothing in the experience and expertise of Atlas and its parent company indicated the new business could not succeed. He had, in fact, been given express assurances that Atlas considered it to be viable. The appellant's evidence is that Atlas considered that the Yarmouth franchise combined with Yarmouth Equipment would make "reasonable return." That acknowledgement, measured against the reality, discloses the measure of care and business judgment Atlas brought to its negotiations with Mr. Murphy. To large extent the facts speak for themselves. Such an early and thoroughgoing calamity, preceded by consistent losses, must have been predictable by any sophisticated modern business corporation which examined the facts. Mr. Murphy was told Atlas had done its homework. He was given no warning the venture was doomed. He committed his company and signed the guarantee. The calamity occurred. If Atlas had been unable to see the obvious, it had not done its homework. It had not exercised reasonable standard of care. It did not enter into the contract with reasonably held belief that the venture could succeed. Mr. Murphy was misled. John MacDougall, the Atlas representative, must bear much of the blame. Instead of protecting the best interests of his employer, which in the end would have protected Murphy, he assumed the role of broker between Murphy and Atlas. He overcame the valid misgivings of his superior, Mr. Ritchie, with unjustified assurances about Yarmouth Equipment based on inadequate inquiry. He overcame Murphy's concerns by assuring him that Atlas, with its substantial resources, believed in the viability of the venture on the basis of proper investigation and research. Initial projections by Atlas indicated only marginal profitability for the parts franchise. Mr. Ritchie pointed this out to Mr. MacDougall, and told him it was not viable unless it could be joined to an established business, essentially as sideline. Mr. MacDougall persuaded him that Yarmouth Equipment was suitable partner. Mr. MacDougall, and thus Atlas, should have known better. Yarmouth Equipment was new‑‑in business only two months‑‑and off to rocky start. Mr. Ritchie himself would have known that if he had made rudimentary inquiries. Atlas did not take Yarmouth Equipment's performance to the date of the agreement properly into account. It had suffered $40,000 loss. It should have been obvious to Mr. Murphy, as well, that wedding losing operation to marginal one is not formula for success. He appears to have been lulled by Mr. MacDougall's enthusiasm. After all, would Atlas and its mighty parent give their blessing to foredoomed union? As an independent broker, MacDougall's handling of information would have been questionable. As the employee who represented Atlas to Murphy, his smudging of the picture was less than conscientious. His projections for wholesale sales of Atlas parts were reasonably accurate; those for retail sales were disastrously short of the mark. The new combined operation created by his machinations, the Atlas parts business grafted to Yarmouth Equipment, fluttered weakly and fell. do not think it likely that would have happened to an enterprise founded on proper exercise of Atlas' business judgment. Mr. Murphy was entitled to expect that Atlas would not sell him franchise and enter into business relationship with him and his company without measure of care. He paid to associate himself with Atlas, its name, reputation and business acumen. Mr. Murphy did not get what he paid for: franchise operation deemed reasonably capable of succeeding in union with his own business by large corporation with access to substantial resources for market studies and great experience in the sales field. He was not entitled to expect guarantees of success or iron‑clad projections. But he was entitled to reasonable care‑‑reasonable business judgment applied to reasonably developed data. Atlas was not merely selling franchise; it was concerned with the new combined operation as an outlet for its parts. Mr. Murphy knew this. He says he was told Atlas was looking at the venture with scientific methods. He was no doubt swayed by Mr. MacDougall's unbased optimism: he needed lifeline. He was thrown an anchor. There are echoes here of the old doctrine of fundamental breach, failed consideration, mistake, breach of collateral warranty, reliance on the seller's skill and judgment. However the concept of unconscionability says it all. (See: Hunter Engineering Co. Inc. v. Syncrude, (1989] 1989 CanLII 129 (SCC), S.C.R. 426.) Atlas sold Mr. Murphy and Yarmouth Equipment on an enterprise that it should have known had no reasonable chance of success. Atlas now seeks to make Murphy pay for its losses under personal guarantee. It would have been reasonable for Murphy to sign the guarantee if he had been getting what he had the right to expect he was getting. It is not reasonable for Murphy to have to pay to protect Atlas from the effect of its own shortcomings. Atlas could afford to be careless. It knew it could not lose, whatever those shortcomings might be: as the major player it could demand guarantee from purchaser as term of doing business. It had the clout to shift the risk. Atlas could sell junk franchise and not be hurt. Only the purchaser would be hurt. In addition to paying his own losses he would have to pay any losses of Atlas. He would have to honour his guarantee. The arrangement is neat, but find it offensive to conscience. have no difficulty in finding it unconscionable that Atlas should recover from Murphy on the guarantee. would, however, find him liable to the extent that he should pay Atlas the value received for inventory received from Atlas which was sold by the bank and applied to his own debts. In the result, concur with Mr. Justice Matthews. Freeman, J.A. HALLETT, J. A.: (Dissenting) have read the reasons of Matthews, J.A., for allowing this appeal in part. With respect, cannot agree with his conclusion that the withholding of Mr. Ritchie's initial financial forecasts that the Yarmouth franchise operating on its own would only provide return of $11,000.00 was so unconscionable as to warrant the Court's refusal to enforce the clauses in the franchise agreement that sales volumes and profit projections were not warranted by the appellant. As the essential facts in the case are set forth in some detail in his decision, there will be no need for me to refer to the facts except with respect to the specific points that are relevant to my reasoning for allowing this appeal in full. The franchise agreement (the "franchise agreement") entered into between the appellant and the respondents, Yarmouth Equipment Limited and Mr. John M. Murphy as guarantor, was business contract negotiated between parties experienced in business. The terms of the franchise agreement were clear; there were no representations or warranties by the appellant respecting sales volumes or profitability of the franchise. The franchise agreement was stated to be the entire agreement between the parties. It was signed by Yarmouth Equipment Limited as the franchisee and signed by the respondent Murphy as the guarantor of Yarmouth Equipment Limited's obligations. Parties must be bound by the terms of their written contracts unless there was some form of fraud or duress that induced the making of the contract or the contract was so unconscionable that the weaker party could satisfy Court that the contract should not be binding upon the parties. There are no allegations of fraud or duress. In my opinion, the terms of the franchise agreement were reasonable and exactly what one would expect that is, that sales volumes and profitability were not guaranteed or warranted. These terms are not unconscionable in the circumstances of this case. THE TRIAL JUDGE'S FINDINGS In my opinion, the learned trial judge was in error when he found, despite the terms of the written agreement stating that there were no warranties respecting sales volume or profitability of the franchise, that certain projections by the appellant's representative with respect to both, which were presented to the respondents prior to the signing of the franchise agreement, were binding collaterial warranties. On the appeal, the respondents' principal argument was that the exculpatory clauses in the franchise agreement were unconscionable. However, will say word about the key cases relied on by the respondents to support the trial judge's findings that there was collateral warranty. The first is decision of the Ontario Court of Appeal in Sodd Corporation Inc. v. Tessis (1977), 1977 CanLII 1415 (ON CA), 79 D.L.R. (3d) 632, relied on to support the argument that the collateral warranty found by the learned trial judge to have been given by the appellant to the respondents with respect to the sales projections and profitability of the franchise continued to exist notwithstanding the clause in the franchise agreement stating that there were no such warranties. review of the Sodd decision shows it turned on the fact that the defendant, professional accountant, was in special relationship that created duty of care to the plaintiff. The accountant was negligent in the representation made to the plaintiff concerning the retail value of the stock that the defendant was selling in connection with liquidation of business. That case is distinguishable from the present appeal as the representation in the Sodd case was made after the advertisement for the sale of the goods appeared in the newspaper. The advertisement contained the statement that there were no warranties respecting the condition of the goods. In the present case, the franchise agreement between the appellant and the respondents was executed after the so‑called collateral warranties had been made; the terms of the franchise agreement stated there were no such warranties. Therefore, it ought to have been clear to the respondent Murphy at the time of execution that whatever he may have thought were representations or warranties respecting sales and profit projections were not to be part of the agreement. Secondly, the disclaimer in the advertisement in the Sodd case was vaguely worded whereas the franchise agreement in the case under appeal clearly stated the projections were not warranties. Thirdly, there was no special relationship between the appellant and the respondents; both were experienced in business and were. entering into standard business contract. would add that there does not appear to be any evidence supporting finding that the sales and profit projections had been warranted by the representative of the appellant in discussions between the parties. The projections, although found to have been made to induce the signing of the contract, were never put forward as being guaranteed. The parties subsequently agreed in the written franchise agreement that the projections were not warranted or guaranteed. In short, the terms of the franchise agreement represent the intention of the parties at the time the contract was made. Under these circumstances, subject to any finding of unconscionability, the Court must give effect to the contractual terms. Jirna Limited v. Mister Donut of Canada Ltd., 1971 CanLII 42 (ON CA), [1972] O.R. 251, and affirmed by the Supreme Court of Canada in [1975] S.C.R. 2. would note that the Jirna case involved franchise agreement and the circumstances were not unlike those presented in this case. In arriving at his decision, the learned trial judge stated that this case is very similar to Esso Petroleum Co. Ltd. v. Mardon, [1976] All E.R. 5. With respect, there is very basic difference between the two cases. In Esso Petroleum v. Mardon there was no clause in the written contract stating that there were no representations or warranties with respect to projected sales; in this case, there was such clause. It also appears that the learned trial judge relied on the following obiter statement by Lutz, J., in P. M. Foods Ltd. et. al. v. Pizza Hut Inc. et al. (1985), 1985 CanLII 1301 (AB QB), C.P.R. (3d) 330 at p. 358: "It is true that disclaimer clause does not affect liability where the representation complained of is to an overriding or collateral matter." That is too broad statement and cannot be applied to the facts of this case where the written contract very specifically states there were no representations or warranties respecting sales projections or profits. The learned trial judge seems to have taken the view that since all the material, including the projections and the draft of the franchise agreement, were presented to the respondents by the appellant, the appellant could not divorce itself from the projections and rely on the franchise agreement. With respect, that is exactly what the appellant could do. In my opinion, the learned trial judge was in error in reaching this conclusion in face of the clear written terms of the contract subsequently signed between the parties which provided that there were no warranties respecting projected sales or profits. The projections were just that, "projections." Mr. Murphy, an experienced businessman, would not have considered them to be anything else and the evidence indicates that he did not consider them to be anything other than "projections" even if the projections induced him to enter the franchise agreement. The franchise agreement was the contract between the parties and its terms must be given effect unless unconscionable: The learned trial judge did not give effect to the terms of the franchise agreement and therefore erred in finding there was collateral warranty. UNCONSCIONABILITY At trial, the respondents did not plead or raise the issue that the franchise agreement should be set aside as being unconscionable but on appeal that was the principal issue argued by the respondents' counsel. Counsel for the appellant agreed the Court could deal with the issue. The Court allowed the appellant to file supplemental factum. Argument was adjourned for week. Courts should be very slow to set aside contract on the ground of unconscionability, particularly where it is business contract made by experienced business people. That the respondent Murphy was an experienced businessman is clear from review of his business career which began in 1968, after he had been an insurance agent for some four years. In 1968, he became partner in Shell Service Station and part owner of used car business. In 1975, he started construction company and became its President. In the same year, he acquired family business, Murphy Boat Shop Limited, which was in the business of buying and selling fishing boats. In 1978, he became involved in real estate sales with Central Trust and Roy Andrews Realty in Yarmouth. In 1979, he started Millworks Limited to operate wholesale and retail supply business. As it would be in competition with the customers of the boat business, he ceased to operate the boat business. Millworks Limited was still in business at the time of the trial and Dun Bradstreet Business Information Report tendered at the trial shows this company in 1986 to have had annual sales of approximately $1.2 million and equity in excess of $200,000.00. In 1984, he acquired the majority interest in 1761 Realty Limited. By 1985 he had acquired eight small apartment buildings that he managed up until that time when he turned them over to real estate management firm. In 1985, he established Yarmouth Equipment Limited and became its President. He began this business because he felt from his experience there was need for such "nuts and bolts" business, as he described it, in that area of the province. In 1986, he decided to start an Atlas franchise to be operated with the existing Yarmouth Equipment Limited business. The principal focus of Mr. Justice Matthew's reasoning in concluding that the so‑called exculpatory clauses in the franchise agreement cannot be enforced on the grounds of unconscionability revolves around the fact that Mr. MacDougall, as the appellant's representative, had advised Mr. Murphy in December, 1985, or January, 1986, that the appellant had projected annual profits at $33,000.00 but did not bring to Mr. Murphy's attention an October 23, 1985, memo from Mr. Ritchie, the National Sales Manager, expressing his view to Mr. MacDougall, the Atlantic Regional Manager, that franchise in Yarmouth was not "viable". Mr. Ritchie had projected profit of $11,000.00 unless the business could be operated with an existing business. At that time (October, 1985), Mr. Ritchie was considering franchise in the Yarmouth area that would be operating on its own rather than in combination with another business. Mr. MacDougall, the Atlantic Regional Manager, was more optimistic about sales. He testified that with good businessman as the franchisee, the appellant would recover good part of its lost share of the market in that area. He projected that with two employees and an investment of about $100,000.00 the Yarmouth franchise would provide return of $33,000.00 to the franchisee for his full time work and his investment. Mr. MacDougall's projection of wholesale sales of $550,000.00 was not proven to be that far off the mark as evidenced by report will refer to later. However, the retail sales were far below those projected. In early January, 1986, Mr. Ritchie, after considering Mr. MacDougall's projection of profit of $33,000.00 for stand alone franchise in Yarmouth and taking into consideration the fact that the franchise would be operated in conjunction with Yarmouth Equipment Limited's existing business, revised his original projection of an $11,000.00 annual profit for the Yarmouth franchise to $19,000.00. His expense projections for the franchise allowed for three employees. This is significant because the evidence indicates the franchise required three persons to operate efficiently. Mr. MacDougall had assumed the franchise would be manned by the franchisee and two employees and would make profit of $33,000.00 if the franchisee did not take salary. Therefore, the revised Ritchie profit projection was not that much different from Mr. MacDougall's original projection as Ritchie provided for the expense of an additional employee to recognize that Mr. Murphy would not be working full time as he had other business interests. Counsel for the respondents takes the position and Mr. Justice Matthews has agreed that as Ritchie's initial opinion of an $11,000.00 projected profit for the Yarmouth franchise was not passed on to Mr. Murphy, coupled with the fact that the subsequent projections prepared by Mr. MacDougall of profit per year of $33,000.00 was used to induce Mr. Murphy to enter the franchise agreement and that Mr. Murphy was not advised he would personally have to work full time to meet that projection if there were only two employees as was the basis of MacDougall's projections, the appellant acted in such an unconscionable manner in inducing Mr. Murphy to enter the franchise agreement that the exculpatory clauses are not enforceable. With respect, this reasoning does not give due consideration to number of factors. Mr. Murphy became interested in taking on the franchise and operating it in conjunction with his existing Yarmouth Equipment Limited business. The trial judge's decision makes it clear that both Mr. Ritchie and Mr. MacDougall were very impressed with Mr. Murphy's ability as businessman. After meeting with Mr. Murphy in late January, 1986, Mr. Ritchie reviewed the MacDougall projections and made some adjustments, including providing for three employees; reduced the royalty payable by Yarmouth Equipment Limited to the appellant from 3% to 2% as agreed and increased projected "specialty" sales from $20,000.00 to $30,000.00 per year, ending up with projected profit of $19,000.00 for Yarmouth Equipment Limited (roughly 18% on investment). These projections recognize that Mr. Murphy would not be working other than providing supervision. In late January, 1986, it was agreed that Yarmouth Equipment Limited be made the franchisee for the area. The franchise agreement was signed on February 28, 1986. It seems to me that once the appellant was considering granting the franchise on the basis that it be operated in conjunction with Yarmouth Equipment Limited's existing business, the situation was so altered that Ritchie's initial income and expense projections for Yarmouth franchise operating on its own which showed return of $11,000.00 for work and investment were no longer relevant. But most important is the fact that these sales volumes and profit projections were never more than simply projections. Mr. MacDougall was of different opinion on the wholesale sales potential of the Yarmouth franchise. His projection of $33,000.00 return to the franchisee was not misleading; it showed two employees and he never represented that included in the expenses was salary for the franchisee. MacDougall's projections were prepared before he was in touch with Mr. Murphy. do not think Mr. MacDougall had duty to beat Mr. Murphy over the head to let him know that if he did not work, his profit would be reduced or any obligation to beat him over the head to show $33,000.00 was marginal return for the investment and the work of the franchisee. That aside, it was for Mr. Murphy to assess what return was acceptable to him and what his manpower requirements were in operating the combined businesses and for him to assess what time he would have to spend in supervising the combined businesses. also find it hard to conceive that the appellant had some obligation to the respondents to check out Yarmouth Equipment's business to make sure it was operating successfully before franchising it as inferred by the trial judge and referred to by Mr. Justice Matthews. Mr. Murphy appeared to be successful businessman and had made favourable impression on both Mr. MacDougall and Mr. Ritchie. THE EVIDENCE As the respondents did not allege at trial that the franchise agreement was unconscionable, Mr. Justice Grant did not address that issue. It is therefore appropriate to look at the evidence in relation to this issue. Mr. Murphy testified respecting the sales forecasts prepared by Mr. MacDougall. His evidence on direct examination about his reliance on the sales and profit projections of the appellant is in marked contrast to that which he had given at prior discovery. The direct examination went as follows: "Q. So he presented you with that blue book from Atlas on franchise agreements, what discussion was there about the contents of that or anything else? Just relate for His Lordship whatever you recall of your discussions with him that day. A. Well at that time we sat down and Andy Fitzgerald, Wayne Nickerson and myself quickly looked at projections and that they had projected for the Yarmouth area and raised some concerns immediately to retail sales. Q. Yeah, let's go to those projections and now think they're found at page 11 of tab one My Lord. What discussion was there about the projections then Mr. Murphy? A. We asked Mr. MacDougall how they arrived at that figure of $93,000 because there was no retail sales of Atlas never before in Yarmouth and we knew that, and Mr. MacDougall quickly went to this population. Q. Yes? That's page 16 My Lord. That's the one headed Franchise Program Yarmouth, Bridgewater, Kentville,...population. A. That's the one yes. And he assured us that these figures and the projections were all done scientifically through believe himself, or head office at Toronto and that it was based on figures that they had received from competitors of theirs that 20% of the wholesale business should be retail and from there relied, we relied on his projections, Atlas's projections. Q. Did you have any way or any means yourself to check or confirm or not, the projections that were made? A. had no reason to doubt these figures because know Atlas is wholly owned subsidiary of Esso and Mr. MacDougall was representing Atlas so at that time when they tell me they've done their homework, was assured and had no reason to further check. Q. You at first did doubt the validity or accuracy of that figure though? A. At first yes we questioned it. Q. Did you have any basis for doubting it other than some instinct? A. None whatsoever, just that gut instinct felt that it was high. Q. Alright, was there any other discussion of anything, these projections or anything else during that second meeting? A. Not that can recall...." (my italics) This testimony makes it clear that there was never another discussion respecting the financial projections. It is to be noted that he was not sure whether the projections had been prepared by head office or Mr. MacDougall personally. Furthermore, he was told how the retail sales projections were estimated (on information, from others in similar businesses, that one could expect retail to be about 20% of wholesale). Mr. Murphy knew the appellant had never been in the retail sales business. Therefore, one should not put lot of stock in his assertion that he relied on having been told that the projections were "scientifically" done. Mr. Murphy, when asked in cross‑examination whether he disputed the accuracy of any of the projections, reiterated his evidence in direct examination that Mr. John MacDougall assured him that the retail sales should be 20% of wholesale. It is to be noted MacDougall's projections were based on more conservative figure of about 13%. He went on to say that Mr. MacDougall assured him that was all done from Toronto and that they had checked on the industry and that is "exactly right and he laid any fears had to rest." He was then asked if he "discounted" the information. He responded that he could not say that he did. He was then pressed on this matter with respect to the projected retail sales of $60,000.00 to $73,000.00.. He acknowledged that at the time he felt they were bit high. He was then asked if he discounted Mr. MacDougall's retail sales projections and he responded not totally. He was then asked whether he considered that if there was any shortfall he could make it up in his nuts and bolts business. He responded “I can’t say for sure that did, no." After these self‑serving responses, he was then asked if he recalled giving evidence on discovery. He was confronted with the following: "Q. Examination of these proceedings, 28th day of March, 1989 and do you recall page 35 of the transcript? I'll go back bit further, at page 31 being asked the question line 10 What was your reaction to those projections, did you make any comment? Answer: Such as? Question: Did you look at them at all? Answer: Oh yes, certainly. Question: Did you have them reviewed by anybody? Answer: Yes Wayne Nickerson who was former employee of Atlas and myself and Andy Nickerson who is an employee of Atlas, we all sat down and went over the figures. Question: And you felt they were acceptable? Answer: Yes. Question: Did you have any concerns about any of the numbers that were provided to you by Atlas? Answer: think we had concerns with the retail sales. Question: Did you express those concerns? Answer: can't say for sure. Question: So you may not have expressed those concerns? Answer: I'm sure we discussed it but to what length can't remember, okay. Question: Did you discuss it with Mr. MacDougall? Answer: Yes sir. Question: And your concerns is that because you felt the retail sales were too high or too low? Answer: Too high. Question: And what response if any do you recall if any that you got from Mr. MacDougall when you raised those concerns? Answer: can’t remember. Question: You don’t recall any response that he made? Answer: No don’t really. And further at page 33, line 7, Okay did you make any suggested changes in the numbers? Answer: No sir. And further at page 35 Question: So take it that in your own mind then that you discounted somewhat kind of revenue that was shown here for that part of the business? Answer: would guess that probably figured could make it up with my nuts and bolts. Question: Right, so that when you analysed or you saw what was coming you said that what's shown for wholesale looks reachable by yourself or obtainable? Answer: Yes sir. Question: What's shown for retail is too high but you would make it up on your other business? Answer: Yes. Question: So that in the bottom line it would work out to about what you have here? Answer: Close to what's here." (My italics) It is clear that at the time of his discovery he could not remember what response Mr. MacDougall had given him when he raised concerns about the retail sales projections being too high. However, by trial, in his direct evidence and initial cross‑examination he seemed to have recalled in detail this conversation which has now taken on so much importance as to his reliance on Mr. MacDougall's assurance that the sales projections were reliable, had been done in the head office and that these assurances induced him to enter the franchise agreement. The trial judge does not make any reference to this cross‑examination.This is very relevant on the issue of unconscionability. Mr. Murphy finally acknowledged under cross‑examination, after being confronted with his discovery evidence, that he did discount the retail sales figures somewhat and acknowledged that he was confident at the time that he could have made up any shortfall in retail sales from his nuts and bolts business. He acknowledged that he had not done any studies himself about the retail side of the Atlas business and that he never raised the matter of the projections again with either Mr. MacDougall or Mr. Ritchie. Considering these extracts from Mr. Murphy's testimony, it is clear Mr. Murphy had reservations about the retail sales projections based on his experience and that of his associates. They were able to assess and did make their own assessment that the retail sales figures were high. Furthermore, Mr. Murphy ought to have realized from what Mr. MacDougall stated that there was not much "science" in the appellant's projection of retail sales. The appellant was relying on data from competitors and population statistics to make its projections and Mr. Murphy was so advised. would infer from the cross‑examination that Mr. Murphy was not particularly concerned about the retail sales as he felt any shortfall could be made up from his nuts and bolts business. He also testified that he had not given any thought to the manpower requirements of the business. He and his employees felt the wholesale sales were obtainable; they were former employees of Atlas' Yarmouth operation and would have been aware of any problems associated with that business and have feel for the manpower requirements. Mr. Murphy was not without resources to assess the merits of the proposed franchise. Assuming the conversation between Mr. Murphy and Mr. MacDougall took place as he testified in his direct examination, notwithstanding his direct evidence appears suspect as result of the cross‑examination, Mr. Murphy would have been aware that the figures for projected retail sales were simply based on population counts and information from competitors and should have realized their possible unreliability. will now deal in more detail with projections of profitability as it relates to the issue of unconscionable conduct. Mr. MacDougall as the Atlantic Regional Manager worked out projections that showed the Yarmouth franchise operating by itself could make return of $33,000.00 year. Mr. Murphy was given the $33,000.00 projection. In January, 1986, after talks had been initiated with Mr. Murphy to grant him the franchise to be operated in conjunction with Yarmouth Equipment Limited, Mr. Ritchie revised his projections and, based on three‑man operation in Yarmouth, calculated profit of $19,000.00 on retail sales of $60,000.00 and wholesale of $550,000.00. This is not at all that far off the return of $33,000.00 per year as projected by Mr. MacDougall with the franchisee working full time. The investment required to set up in Yarmouth was $106,000.00. When considered in relation to the sales volume required to generate these various profit projections, there is not significant variance between any of the profit projections and it does not seem to me that very much should turn on the failure of Mr. MacDougall to have shown Mr. Murphy the original projection of Mr. Ritchie of profit of $11,000.00, particularly where Mr. Ritchie had revised his projection of profit to $19,000.00 plus the fact that the situation had altered so much since that figure was initially calculated as the franchise was to be operated with an existing business. The appellant had no experience in retail sales. Mr. Murphy knew this. He was advised how Mr. MacDougall arrived at his projections. As businessman, he ought to have realized, and in my opinion from review of his testimony did realize, the possible unreliability of these sales forecasts. The appellant was not an established franchisee operator; Mr. Murphy knew this was new venture for the appellant. Business involves risks and sales forecasts are always speculative. Mr. Murphy himself had projected substantial profit on his nuts and bolts business. As it turned out, he too was very wrong. No doubt Yarmouth Equipment Limited failed for number of reasons. Some insight as to the failure of Yarmouth Equipment Limited can be gleaned from review of proposal made on January 26, 1987, by R. W. Murphy, the then Atlantic Regional Manager of the appellant, to his head office. He proposed that because of the financial difficulties of Yarmouth Equipment Limited, the appellant should forego interest charges on Yarmouth Equipment Limited's overdue accounts payable. In his proposal, he set out the justification for this request and, in doing so, commented on the operation of Yarmouth Equipment Limited over the previous year. He stated: "In April 1986, Jack Murphy owner of Yarmouth Equipment Limited became the Atlas Franchisee for the Yarmouth area. Yarmouth Equipment handles industrial hoses nuts and bolts and it was felt this business and the Atlas franchise would complement each other. The Yarmouth Atlas franchise with its low volume was marginal and it was felt the two businesses combined would make reasonable return. Mr. Murphy is very well‑known in the area and this was obvious by the sales improvements seen after he took over. Unfortunately, for personal reasons, Mr. Murphy had to move to Ottawa in August and has been an absentee owner since then. His staff however is very competent (ex‑Agent and ex‑Agency counterman) thus the strong sales have continued. Surprisingly, an income statement for Yarmouth Equipment for the year ending October 31, 1986 revealed the company had lost $85,685 in its first 12 months (see attached). On review of these statements it was realized that Yarmouth Equipment had lost approximately $40,000 prior to becoming an Atlas Franchise and these losses continued to grow to year end. When the writer reviewed the statements on December 15, it was found that the nuts and bolts operation had yielded only $65,000 in sales versus annual projections of $250,000. The Atlas wholesale sales volume for the first seven months totalled $321,000 or $500,000 annualized which was slightly short our pro forma projections of $550,000 but 25% greater than 1985. The retail side of the business fell horrendously short of sales projections at $3,200 for seven months versus $35,000." (my italics) It is to be noted that it had been the appellant's view that the Yarmouth franchise, when combined with Yarmouth Equipment Limited's nuts and bolts business, would make "reasonable return" rather than simply marginal one. This is significant because the learned trial judge seems to imply in his decision that the appellant, seeing that Mr. Murphy had some means, duped him into taking on its failing Yarmouth business and if it failed, Murphy would be liable. This report shows the appellant expected the franchise would make reasonable return. It is also of great significance that Mr. Murphy's projected sales for the nuts and bolts business of $250,000.00 were never met; in fact, the shortfall was almost $200,000.00 for the year ending October 31, 1986. The shortfall in projected retail sales for the franchise operation for the seven months was just over $30,000.00. It is obvious that sales in both businesses never reached projected levels; that is not uncommon. However, Mr. MacDougall's projection of wholesale sales, which was more optimistic than Mr. Ritchie's initial projection of October, 1985, was as accurate as Mr. Ritchie's initial projection which showed Ritchie projected an increase from $445,000.00 wholesale to $464,000.00. MacDougall projected increases to $550,000.00. Based on the seven month figures, the annual sales would have worked out to about $500,000.00. Projecting sales is difficult even in business one knows, let alone new business. Mr. R. W. Murphy, in his report, pointed to several causes of Yarmouth Equipment Limited's financial problems, including "poor sales on the equipment side"; "the lack of well planned business strategy and operating guidelines had left the business rather vulnerable in Mr. Murphy's absence" and "inefficient accounting". The major problem in Yarmouth Equipment Limited was the fact that the sales of the nuts and bolts business were so far below the projections of the respondent Murphy. Not only could the sales from the nuts and bolts business not supplement the marginal profits of the franchise business as Mr. Murphy had anticipated, but were resulting in substantial losses in Yarmouth Equipment. The respondent Murphy was apparently unaware of this when he entered into the franchise agreement. It would appear his business was not well run. The fact is that Mr. Murphy had entered into two new ventures and it would appear in hindsight that he made two bad business judgments. As. to the conduct of the appellant, it does not seem to me that deficient judgment in projecting sales and profits for new ventures or the failure to put before Mr. Murphy all their projections before he signed the franchise agreement can be equated with unconscionability. By the time the appellant began to talk to Mr. Murphy, the Ritchie projection of $11,000.00 profit was obsolete as it was made on the basis of franchise operated on its own and on the basis of wholesales estimated by Mr. Ritchie which, as it turned out, were below what was achieved over the first seven months. Furthermore, Mr. Ritchie in January, 1986, had revised the return on investment to $19,000.00. The trial judge found "the projections of MacDougall were inaccurate as to expenses and grossly inaccurate as to retail sales and profits." As have previously noted, deficient judgment in forecasting of sales does not equate with unconscionability. Furthermore, the fact that the business lost money was not solely related to the inaccurate retail sales forecast for the franchise operation. The trial judge found that MacDougall knew that Murphy was relying on the financial forecasts and that MacDougall intended that he do so. Again, in my opinion, that does not constitute conduct which can be equated with unconscionability. Mr. Murphy was businessman familiar with the Yarmouth area. The retail sales were but small percentage of the total franchise business which was primarily focused on wholesale. Mr. Murphy had in his employ two former employees of Atlas who would be familiar with the wholesale side. It was the shortfall in sales of the nuts and bolts business that appears to have been the primary cause of the failure of Yarmouth Equipment Limited. There was never any suggestion by the appellant's representatives that the projections of sales and profitability were guaranteed; projections never are and every businessman knows how unreliable projections can be. do not attach any significance to the fact Mr. Ritchie did not testify as the respondents had merely alleged "collateral warranties" at trial. Certainly, Mr. Ritchie, who had met Mr. Murphy only once, had not made any such warranties. Therefore, there was no particular reason to call him in view of the fact the appellant had written agreement stating there were no such warranties. Nor do attach great deal of significance to the fact that Mr. MacDougall was more optimistic in his projection of wholesale sales than Mr. Ritchie. His projections turned out to be at least as accurate as Mr. Ritchie's. Nor do consider it significant that the projections of retail sales, about 13% of wholesale, were little more than guesses as the appellant had not been in the retail sales and was relying on information from others and, most importantly, this was known to Mr. Murphy. do not consider it significant that Mr. MacDougall's projection of $33,000.00 profit did not provide in the expenses for salary for the franchisee, even though it was anticipated he would work full time. There was no suggestion made to him that he would not have to work. do not consider it significant or, for that matter, relevant that Mr. MacDougall did not advise Mr. Murphy what Mr. Ritchie had initially projected as profit as this projection was based on conservative wholesale sales volumes and on the basis of the franchise being operated by itself. do not attach any significance to the fact that MacDougall did not tell Mr. Murphy that sales in the Yarmouth agency had been declining in recent years. Mr. Murphy's employees would have known this and Mr. Murphy discussed this with them and they collectively thought the MacDougall wholesale sales projections were attainable. It is neither significant nor relevant that Mr. Ritchie did not question if Yarmouth Equipment's existing business was, to use that vague phrase, "viable". It is of no great significance that the material in the brochure prepared by Mr. MacDougall was intended to induce persons to enter franchise agreement. There was nothing fraudulent about the information; it was MacDougall's forecast of what was attainable in sales and profits and as subsequently shown was not out of line with Mr. Ritchie's revised projection of $19,000.00 profit with three employees. With respect, differ with those who attach significance to the foregoing points. The projections were never put forward as anything but projections. As to their having been prepared scientifically in the head office, Mr. Murphy in testifying on this subject stated he was not sure whether Mr. MacDougall had told him the projections had been prepared by himself or head office. Whether prepared by Ritchie or MacDougall before the franchise agreement was signed, both had come to the same conclusion that the franchise, operated in combination with Yarmouth Equipment, could make reasonable return. As it turned out, they were wrong in their forecasts for the franchise agreement just as Mr. Murphy was wrong in his forecast for the nuts and bolts business. The respondent Murphy had an opportunity to review the franchise agreement as he had received it month before it was executed. He had an opportunity to consult with his lawyer respecting its terms which, as have noted before, were very clear. His lawyer, who happens to be his brother, witnessed the execution of the franchise agreement. In short, Mr. Murphy was an experienced businessman familiar with the Yarmouth area and it is reasonable to infer he knew that the projections of the appellant respecting sales were just that, "projections." He knew the appellant, having previously been only involved in the wholesale business, had no prior experience in retail sales of its products. Most importantly, the respondent Murphy was under no pressure to sign the franchise agreement as presented; he could have walked away from the transaction. He did not request that the projections of sales and profits be incorporated as warranties or guarantees into the franchise agreement. He had full freedom of contract. Sales and profit projections made by the franchisor are not normally warranted by the franchisor. On its facts, the case is not unlike that of 447927 Ontario Ltd. v. Pizza Pizza Ltd. (1987), 1987 CanLII 4332 (ON SC), 44 D.L.R. (4th) 366. In that case, the learned trial judge dismissed the franchisee's claim for breach of collateral warranty re sales forecasts by the franchisor. He stated at p. 375: "This clause must be considered in deciding whether warranty should be found (quite apart from any result the clause might have upon the right to enforce warranty, if one were found). It seems to me more difficult to conclude that collateral oral warranty was intended, when, after it was alleged to have been made, formal written agreement was submitted for consideration by the plaintiff, was negotiated and amended, and ultimately executed, containing clause flatly asserting that no warranty had been made. It is significant that in Esso the agreement contained no such clause. Had it done, in the light of what was said by Shaw L.J. at p. 833 supra, the result might have been different." Counsel for the respondents focuses on the inequality of the parties large national company with international connections versus small businessman and failure of MacDougall to have advised Mr. Murphy that Mr. Ritchie initially had estimated that the Yarmouth franchise would only produce profit of $11,000.00. For the reasons have set out, this information had become irrelevant before the franchise agreement was signed. There is always degree of inequality in the bargaining position of parties to contract; that is insufficient reason standing alone to set aside business contract on the ground of unconscionability. If that were the case, business would become impossible. The Courts have always required more; there must be something that would make it unconscionable to enforce the right of the stronger party. Before Court should refuse to enforce clear terms of contract on the ground of unconscionability, there not only must be marked inequality in the bargaining position of the parties due to ignorance or distress of the weaker but the contract must be "substantially unfair" and the stronger party has taken such advantage of the situation that it would be "unconscionable" to enforce it. Morrison v. Coast Finance Ltd. et al. (1965), 1965 CanLII 493 (BC CA), 55 D.L.R. (2d) 710. The respondents' position is that the appellant's conduct in putting forward the MacDougall sales and profit projections while not advising Mr. Murphy about Ritchie's initial projections was unconscionable to the point that the clauses in the franchise agreement stating there were no such warranties should be set aside. This leads to the question what was the conduct of the appellant that should require this Court to refuse to enforce the clear terms of the franchise agreement. Was it the fact that the appellant's representatives did not advise Mr. Murphy of Mr. Ritchie's initial doubts about the profitability of the franchise operating alone? In my opinion, clearly not. have dealt with this issue. Was it the fact the representatives did not advise Mr. Murphy that, in their opinion, for the franchise agreement to be "viable" (whatever that means), it required the full time participation of the franchisee? That cannot be the case; it would have been apparent, from the face of the projections which showed two employees were required. No one represented to Mr. Murphy he would not have to work to earn the $33,000.00 profit MacDougall projected. Mr. Ritchie's revised figures showed the franchise would produce $19,000.00 annual profit while allowing for three employees; reasonable return on an investment of $106,000.00. This would provide for the hiring of the three persons needed to operate the business while Mr. Murphy could provide some overall supervision. Was there an obligation to advise Mr. Murphy that Mr. Ritchie had revised his figures to reflect the reality of the deal being struck with Mr. Murphy which showed profit of $19,000.00? think not; this was reasonable return on investment for Mr. Murphy and not out of line with MacDougall's projection of return of $33,000.00 with the franchise participating full time. In short, the appellant, prior to signing the franchise agreement with the respondents, had come to the conclusion that the franchise agreement, operating in combination with the existing business, could provide reasonable return to the franchisee. Was it the fact that the appellant's representatives did not tell Mr. Murphy the business may not have been very profitable as stand alone? No, because it was not going to operate as stand alone business. Was it unconscionable not to have advised Mr. Murphy that the projected profit of $33,000.00 as made by Mr. MacDougall was higher than that initially projected by Mr. Ritchie. think not. Who is to say that Mr. Ritchie's initial opinion sitting in the head office in Toronto was more valid than the Atlantic Regional Manager's. They were just opinions and never put forward as anything but opinions. In fact, after meeting Mr. Murphy, his revised projection showed return of about 18% on investment for Yarmouth Equipment. Was it unconscionable not to suggest to Mr. Murphy that whether the return was $11,000.00, $19,000.00 or $33,000.00, it may not have been particularly good return considering the risks and the investment of time and money. The answer must be no. Mr. Murphy could assess that for himself. Was it unconscionable not to advise Mr. Murphy that he should question the retail sales forecasts? The answer must be no. Mr. Murphy, being an experienced businessman, would know that such forecasts are not always reliable and knew the potential unreliability of the retail sales forecasts as based on information from competitors. Also, he felt any shortfall could be made up from the nuts and bolts business so he was not concerned. These were assessments Mr. Murphy had to make. Finally and most importantly, was it unconscionable to have provided in the franchise agreement that the sales and profit projections were not warranted when no such warranty had been given during the discussions between the appellant's representatives and Mr. Murphy prior to signing the franchise agreement? The answer must be no; the projections were merely estimates of what the representative of the appellant felt the business if operated properly could achieve. No reasonable person would consider them to be anything but estimates. The franchise agreement was not unusual in not guaranteeing projections of sales or profits and in stating that it constituted the entire contract between the parties. This was standard commercial franchise agreement and, applying the test developed by Lambert, J.A., in Harry v. Kreutziger (1979), 1978 CanLII 393 (BC CA), 95 D.L.R. (3d) 231, the transaction was not sufficiently divergent from community standards of commercial morality that it should be set aside. An intervention by the Court in this case would not on this test appear to be warranted. At the time the franchise agreement was signed, there did not exist on the facts of this case what Robert Flannigan in an Article entitled "The Judicial Regulation of Exculpatory Clauses" in (1990), 69 .C.B.R. 514 referred to as "severe situational disability". The respondents cannot, on the facts of this case, come close to meeting any of the tests for setting aside contracts on the ground of unconscionability as set out in the cases referred to in Stephenson v. Hilti (Canada) Ltd. (1990), 1989 CanLII 191 (NS SC), 93 N.S.R. (2d) 366. Mr. Murphy was an experienced businessman; he knew the basis upon which the "projections" were made; there was no compulsion to sign and the terms of the agreement were clear. Applying another recognized test although there was degree of inequality between the parties, there was nothing "substantially unfair" about not guaranteeing sales volumes or profits. No one would expect sales and profit projections to be guaranteed by the franchisor and it is perfectly reasonable for franchisor to provide that such projections are not warranted as success of the franchise depends on the way in which the franchise is operated. The failure to advise Mr. Murphy of Mr. Ritchie's initial projections was not unconscionable under the circumstances. In summary, and with respect, the learned trial judge was in error in finding collateral warranty on the evidence and in face of the clear terms of the franchise agreement that there were no such warranties. Secondly, in my opinion, considering all the circumstances of this case, the respondents have fallen far short of proving the franchise agreement was unconscionable. THE RESPONDENT MURPHY'S GUARANTEE The learned trial judge found that Yarmouth Equipment Limited was liable to the appellant for the sum of $206,344.00 but found the respondent Murphy, despite the broad terms of the guarantee that he signed as part of the franchise agreement, was not liable. The terms of the guarantee signed by the respondent Murphy for the obligations of Yarmouth Equipment Limited to the appellant were, as one would expect, comprehensive. Those provisions relevant to the issues raised on this appeal are contained in paragraph 15.04 of the franchise agreement, subparagraphs (a), (b), (c) and (f) of which set out as follows: "15.04 Guarantee In consideration of the sum of Two ($2.00) Dollars and good and other valuable consideration now paid by ATLAS to the Guarantor, the receipt of which and the adequacy of which is hereby expressly acknowledged by the Guarantor, and in consideration of ATLAS entering into this Agreement at the specific request of the Guarantor, to the extent that the Guarantor shall become primarily liable under the provisions hereof to ATLAS as if it were the Franchisee in this Agreement, the Guarantor hereby agrees as follows: (a) Guarantor guarantees to ATLAS the due payment by the Franchisee of all monies payable under this Agreement by the Franchisee to ATLAS at the time or times appointed therefor, and the due observance and performance by the Franchisee of all the covenants, terms, provisions, stipulations, agreements and conditions contained in the Agreement and on the part of the Franchisee to be observed and performed; (b) this shall be continuing guarantee and shall be binding upon the Guarantor as well after as before default until all monies due under this Agreement have been fully paid and satisfied, and all covenants, terms, provisions, stipulations, agreements, and conditions have been fully observed, performed, and carried out; (c) ATLAS shall not be bound to exhaust its recourse against the Franchisee before requiring payment of any monies or the observance or performance of any obligation by the Guarantor; (f) neither release or releases, indulgence or extension of time or waiver granted by ATLAS to the Franchisee with respect to the observance or performance of this Agreement, or any defaults or breaches thereunder on the part of the Franchisee, nor any dealings between ATLAS and the Franchisee shall in any way prejudice ATLAS or modify, alter, diminish or affect the liability of the Guarantor under this Agreement; ..." The learned trial judge not only concluded that the respondent Murphy was discharged from his guarantee, despite finding Yarmouth Equipment Limited liable, but went on to find that the appellant was liable in damages to the respondent Murphy for the sum of $23,500.00 to reimburse him for $7,000.00 franchise fee paid to the appellant and $16,500.00 incurred as franchise start‑up expenses. This finding was made even though there was no counterclaim for reimbursement of these expenses. Furthermore, the pleadings did not allege that the appellant had breached the franchise agreement in its dealings with Yarmouth Equipment Limited's inventory after the decision was made to close out Yarmouth Equipment Limited because of the losses it was suffering in both operations. In order to deal with this issue, it is necessary to set out in full that part of the learned trial judge's decision relating to these findings. He dealt with these issues starting at p. 29 of his decision under the heading of Damages: "DAMAGES: find the measure of damages to be the loss suffered by the parties. THE DEFENDANT YARMOUTH EQUIPMENT: It operated about two months before the Atlas franchise came on. It was thought that it would probably have loss in the first year. Instead of modest loss, as forecast, it was massive. It may be that too much effort was made by staff to start up the Atlas franchise thus depriving it of the attention it would have had if Atlas was absent. The projections for the Company may have been overly optimistic. The months prior to Atlas were not successful. In fact Robert Murphy said the losses were $40,000.00 (Tab 9). That being the case it was doomed to failure regardless of Atlas. The proceeds of the liquidation sale were used to pay down the bank indebtedness. Even with that Murphy was required to honor his personal guarantee to the tune of $70,000.00. Personnel of Atlas attended the sale. [p. 30] Atlas was not interested in taking the stock back. The bank had security which it was prepared to waive to permit Atlas to take the stock back. As of December 31, 1986 the Company had total assets of $174,700.00 including inventory of $90,000.00. This defendant cannot put the plaintiff back in its original position as it cannot now return the inventory. It had the inventory and had the use of it. It would not be reasonable or conscionable to permit it to retain the inventory without compensating the plaintiff for that inventory. The value of the inventory as realized from the liquidation sale was used for the credit of this defendant at the Bank. This defendant had its statements merged with Atlas and cannot accurately tell what it owed the bank for the 'nuts bolts' operation. The amount of the plaintiff's claim is not in issue. am unable to say that the loss of the Yarmouth Tourist Association loan was solely attributable to the plaintiff. The plaintiff shall recover judgment against this defendant for $206,344.00 (the sum agreed upon by counsel). LOSS TO THE DEFENDANT MURPHY: [p. 31] Murphy was required to pay out on his personal guarantee to the Bank. This entailed $73,640.00 raised by mortgage and cash. The defendant submits that it was the merger with Atlas which brought Yarmouth Equipment down. do not believe that was the case. consider Yarmouth Equipment was not viable before the merger and of course less viable after the merger. consider most of the debt arising from the Atlas franchise was owed to Atlas. It purchased all or nearly all of its stock from Atlas. The stock for its nuts and bolts operation was purchased through its credit arrangement with the bank. Atlas had the opportunity to have its account reduced by taking back inventory. It was not prepared to do so. Had it done so rather than expose the stock to the liquidation sale and its reduced prices the amount owing to Atlas would be less than at present. It did so to the prejudice of Murphy as guarantor. Atlas put the franchise on C.O.D. basis in January, 1987. Notice of default was given on February 12, 1987. Under Article 16.05 the plaintiff had the obligation to take back the inventory at the current sale price less restocking charge. [p. 32] Murphy said the bank was prepared to waive its lien and the evidence disclosed no other encumbrances to 'good and marketable title'. find in failing to do so the plaintiff has acted in way which has compromised the rights of the guarantor. The details of the liquidation sale are not in evidence. The evidence was that the normal retail sales for the inventory were not there. The liquidation sale was reasonable act after the refusal of Atlas to take the inventory back. There was no suggestion that the defendants squandered the profits or the proceeds of the sales. In The Law of Guarantee, McGuinnes, Article 10.57 (page 283): 'A creditor must deal with security in reasonable manner so as to ensure that the maximum amount is derivable from it to satisfy the guaranteed debt'. find the failure of Atlas to accept the inventory was unreasonable. accept the evidence of Murphy that it was twice offered to Atlas with the bank's encumbrances waived. In the circumstances here find the Defendant Murphy discharged from his guarantee. dismiss the claim against Murphy. COUNTERCLAIM OF MURPHY: [p. 33] The defendant Murphy shall recover from the plaintiff his payment of $7,000.00 for the franchise and the sum of $16,500.00 which he paid for start‑up expenses of the franchise including renovations to meet the requirements of Atlas and the sign. accept the evidence of Murphy on these expenditures which were well detailed in his very thorough cross‑examination. He shall have pre‑judgment interest. will hear counsel orally or by letter on the relevant date and percentage. COSTS: The plaintiff shall have its costs of the action against the defendant Yarmouth Equipment. The defendant Murphy shall have his costs of his defence of the plaintiff's claim and on his own counterclaim." (my italics) The appellant argues that the learned trial judge misconstrued the evidence in reaching his conclusions that the respondent Murphy was not liable on the guarantee of Yarmouth Equipment Limited's debts to the appellant. In addition to the part of the learned trial judge's decision have just set out, the learned trial judge had stated at p. 15 of his decision: "Murphy said he offered to return the stock to Atlas. He made arrangements with the bank that it would permit the return as the bank held some security. However, Atlas was not prepared to take the stock back. He said the stock, clear of encumbrances, was twice offered to Atlas and twice refused. This was not contradicted." (my italics) The learned trial judge found that under Article 16.05 the appellant had an obligation to take the inventory back. Clause 16.05 provides: 16.05 Purchase of Identified Inventory Within ten (10) days from the expiration or other termination of this Agreement and provided the Franchisee can pass good and marketable title to ATLAS, the Franchisee agrees to sell and ATLAS agrees to purchase the Franchisee's fully paid inventory of Automotive Products at ATLAS' then current sale price to the Franchisee plus applicable taxes less any restocking fee in effect at the time and freight costs on the purchased inventory. ATLAS' obligation to purchase the Franchisee's inventory of Automotive Products shall extend only to those products which were previously purchased from ATLAS and, in ATLAS' discretion, are in saleable condition at the time of the expiration or other termination of this Agreement (the 'Identified Inventory'). ATLAS may exclude from such assets to be purchased hereunder any assets which in the sole opinion of ATLAS are obsolete, damaged or otherwise not in marketable or useable condition. The Franchisee covenants and agrees that ATLAS shall have thirty (30) days from the date of the delivery of the Identified Inventory in which to make the payment contemplated above. ATLAS has the right to set‑off this payment obligation against any other indebtedness owed to ATLAS by the Franchisee, and ATLAS shall be entitled to enter the Premises of the Franchisee and perform any audit and inspection of the inventory it deems necessary to protect its rights herein. Any transfer and sale of the Identified Inventory shall include such instruments of conveyance and transfer as may be effective to vest good and marketable title in ATLAS free from all liens, charges and encumbrances. The Identified Inventory shall not include any inventory that should have been previously cleared in accordance with ATLAS' exchange and return policies. Any purchase and sale completed by ATLAS pursuant to this Section 16.05 shall be completed in accordance with applicable bulk sales legislation." (my italics) In summary, under this clause the parties agreed that on the termination of the franchise agreement, the respondent Yarmouth Equipment Limited would sell, and the appellant would purchase, the inventory provided Yarmouth Equipment Limited could transfer the inventory free from encumbrances. There is no dispute that the inventory had been pledged to Yarmouth Equipment Limited's bankers to secure its substantial bank loan. After finding that the bank was prepared to waive its lien, the learned trial judge concluded that in failing to purchase the inventory under Clause 16.05 of the franchise agreement, the appellant acted in way that compromised the guarantor. The learned trial judge then stated that the liquidation sale which Mr. Murphy decided to have was reasonable act after the appellant's refusal to take the inventory back. The learned trial judge concluded this issue by finding the appellant's failure to accept the inventory was unreasonable and that he accepted the respondent Murphy's evidence that the inventory was "twice offered to Atlas with the bank's encumbrance waived." The learned trial judge then found that, in the circumstances, the respondent Murphy's guarantee of the Yarmouth Equipment Limited debt was discharged. review of the transcript of evidence reveals the fact findings which formed the basis for discharging the respondent Murphy from his guarantee are not supported by the evidence. On the contrary, the evidence leads to only one inference: the appellant was never advised the bank was prepared to waive its charge on the inventory and thus enable the respondent Yarmouth Equipment Limited to sell the inventory to the appellant pursuant to Clause 16.05. During the cross‑examination, Robert W. Murphy, the Atlantic Regional Manager of the appellant who was responsible for the dealings of the appellant with Yarmouth Equipment Limited at the time it ceased to do business, having succeeded Mr. MacDougall, was asked about the liquidation sale being held by Yarmouth Equipment Limited: "Q. In fact he was holding liquidation sale wasn't he? A. Yes. Q. And he, at one point, offered to deliver this inventory back to Atlas didn't he? A. No, no the bank had taken that sir. Because I, in fact, in one of my communications, asked to let us know if he wanted to exercise his right to take it back. We wouldn't be out $100,000 today. We would have wanted to take the inventory. The bank seized it, it was my understanding." (my, italics) In light of this evidence, the learned trial judge was in error when he stated at p. 15 and p. 32 of his decision that there was uncontradicted evidence that the inventory was twice offered to the appellant free from encumbrances and twice refused. During direct examination of the respondent Murphy, he was asked the following line of questions regarding whether he had offered to sell the inventory back to the appellant: "Q. Alright, in March then you say you made the decision to come down and close the business out and you informed Mr. Murphy. What were the next steps you then took to liquidate the business? A. Well started an advertising. put an ad in the paper that we were going out of business sale and that we were selling goods at cost or below cost. Q. Do you recall whether you or someone on your behalf, ever offered to sell the stock back to Atlas? A. Yes. Q. What happened there? A. advised my lawyer, at least on two occasions, to contact Atlas and to offer all the stock to them; that would have been much much easier for me than to go down and have liquidation sale. So offered whatever was left, to Atlas, on, believe, two occasions and they refused. Q. This was your brother Rick was it that did that? A. That's correct. Q. Alright, was this, take it from what you say, was before the liquidation sale was it? A. This was just before the liquidation sale, yes. Q. Alright, so in any event, you liquidated it and closed the premises down and that was the end of it was it? A. That's correct." This evidence that the inventory had been twice offered to the appellant and refused by it was, of course, hearsay but it indicates the inventory was supposedly offered to the appellant before the liquidation sale and the appellant supposedly refused. The respondent Murphy's lawyer was not called by the respondents to testify on this matter. On cross‑examination, the respondent Murphy's evidence on this subject was far from persuasive. He was asked: "Q. Your direct evidence believe was, you requested your lawyer, your brother, ... A. Yes. Q. ...to see if Atlas would take the product back? Q. Did you receive any confirmation that such request had been made? A. No other than the fact that my brother told me that they said they couldn't take it back guess. Q. They couldn't take it back? A. That's right. Q. And, guess that would indeed be, be correct would it not, Atlas could not legally take it back? A. Sure they could. Q. You had given an account, assignment of inventory to your bankers? A. That's right. Q. This was your inventory? Q. And what makes you say sir that he could have given the inventory back to Atlas? A. Because I, had talked to the Bank Manager and he said it was my inventory and he was willing to let it go back. There was no, he was not going to put hold onto it. That's why offered to send it back. Q. So you went to your Bank Manager? A. But obviously, from what got from my brother was, it was Atlas's opinion that they could not take it and that's why they would not take it. Q. Did you, did you tell Atlas that your Bank Manager had agreed to give it up? Give any claim it had on it? A. I'm not sure if did, no. At that point it was my brother that was talking to Atlas. Q. Alright. Did you tell your brother to make sure that Atlas was told that, that the bank had no problems? A. can't say that did no. Q. And Mr. Murphy was in there during the, the close‑out sale? Q. And you didn't mention it to him? A. No. No. mean we were too far along guess in the close‑out sale at that point. Q. Mr. Murphy took back the, the defective products? Q. He had no problems with that? No. Q. And, did you have anything in writing from your Bank Manager that it could be released to Atlas without any claim? Q. But the assignment of inventories that signed with the bank as shown in your financial statements was still, actually in place? A. would imagine yes." (my italics) It is clear from this evidence that the respondent Murphy could not even say if he had told his brother, who was dealing with the appellant, that the bank had agreed to give up its charge on this inventory. It will become apparent from the following testimony that the respondent Murphy was not at all sure the bank manager was prepared to forego the bank's claim on the inventory: "Q. Did he tell you that the bank waived any claim to the proceeds of that inventory? A. I, don't think so. Q. He just said you could send it back to Atlas? Did he say that the assignment of inventories the bank had under the Bank Act was waived? A. can't recall if he said, you know like that. Q. Or released? No. Q. And, by you having that product and receiving some, some monies, meant that you were able to reduce your indebtedness to the bank? A. guess that's what he was relying on because as sold product brought the money to the bank." (my, italics review of this evidence reveals that Yarmouth Equipment Limited held liquidation sale and the money realized was applied against the bank debt that was secured by Yarmouth Equipment Limited's inventory. There is no admissible evidence that the inventory was ever offered to the appellant before the liquidation sale or at any time, let alone twice as found by the learned trial judge. There is no evidence that the appellant was advised the inventory would be offered to the appellant free from the bank's charge; on the contrary, the respondent Murphy testified he did not know if the bank was prepared to release its charge. In fact, the money realized from the sale of Yarmouth Equipment Limited's inventory was paid to the bank, thus reducing the respondent's liability under the guarantee he had given to the bank. There was no admissible evidence that permitted the learned trial judge to find as he did that the inventory, clear of encumbrances, was twice offered to the appellant and "twice refused" before the liquidation sale. The evidence points conclusively to decision by the respondent Murphy to have liquidation sale and pay down Yarmouth Equipment Limited's bank loan which he had guaranteed. Had the bank waived its lien and the inventory returned for credits against the respondents' debt to the appellant, the respondent Murphy would have been liable for an even greater amount than he was required to pay to Yarmouth Equipment Limited's bankers under his guarantee of its debt to the bank. The learned trial judge apparently accepted the hearsay evidence of the respondent Murphy that his brother had offered the appellant the inventory notwithstanding it was hearsay and notwithstanding the doubts the respondent Murphy had as to whether he even told his brother the bank was prepared to waive its charge against the inventory. His doubt is easily understood as the respondent Murphy acknowledged under cross‑examination that he did not know if the bank was prepared to waive its charge on the inventory. In fact, the bank took all the money realized from the sale of the Yarmouth Equipment Limited inventory. Both the appellant and the respondents knew the bank had charge on the inventory and that Yarmouth Equipment Limited was not in position to offer the inventory to the appellant unless the bank waived its claim. There is no evidence that this ever happened, yet the learned trial judge made such finding at several points in his decision and, most particularly, immediately before he stated at p. 32 of his decision that in the circumstances the respondent Murphy was discharged from his guarantee. The duty of an Appeal Court where the appellant asserts that the findings of fact made by the trial judge are not supported by the evidence is described by Ritchie, J., in Stein v. The Ship "Kathy K", 1975 CanLII 146 (SCC), [1976] S.C.R. 802, at p. 808: "These authorities are not to be taken as meaning that the findings of fact made at trial are immutable, but rather that they are not to be reversed unless it can be established that the learned trial judge made some palpable and overriding error which affected his assessment of the facts. While the Court of Appeal is seized with the duty of re‑examining the evidence in order to be satisfied that no such error occurred, it is not, in my view, part of its function to substitute its assessment of the balance of probability for the findings of the judge who presided at the trial." The trial judge's findings on this issue are not supported by the evidence and therefore cannot stand. Under the terms of Clause 16.05, the appellant had an obligation to purchase the inventory on termination of the franchise agreement, provided the inventory could be transferred to the appellant free from encumbrances. The respondents could not comply with the terms of Clause 16.05 without obtaining release of the bank's charge; that was not done. The respondent Murphy elected to liquidate the inventory and pay down Yarmouth Equipment Limited's bank loan which he had guaranteed. Under the circumstances, there was no obligation on the appellant to purchase the inventory. Therefore, with respect, the learned trial judge was in error when he found, based on his finding that the appellant had acted unreasonably in not accepting the inventory, that the respondent Murphy was discharged from his guarantee to the appellant of the Yarmouth Equipment Limited's debt. It is not necessary to deal with other provisions of the guarantee which clearly state that the guarantor Murphy was not relieved of his obligations under the guarantee, notwithstanding how the appellant dealt with Yarmouth Equipment Limited. The terms of the guarantee are very clear. The respondent Murphy is liable for the full amounts owing by Yarmouth Equipment Limited to the appellant under the franchise agreement. The respondent Murphy is therefore liable for the amount the parties agreed was owing by Yarmouth Equipment Limited, $206,344.00. The Order of the trial judge should be set aside. There was no basis for the trial judge finding the appellant was required to repay to Murphy the amount he paid for the franchise and start‑up expenses totalling $23,500.00. The Order granted after trial provided that the appellant would have judgment against the respondent Yarmouth Equipment Limited in the amount of $206,344.00. This figure had apparently been agreed to by the parties. The Order is dated June 14, 1990. would assume that it would be inclusive of pre‑judgment interest as there was no reference in the Order to pre‑judgment interest other than in respect to the respondent Murphy's counterclaim. The appeal should be allowed and the appellant should have judgment against the respondent Murphy in the amount of $206,344.00 with interest in accordance with the Interest on Judgments Act, R.S.N.S. 1989, c. 233, from June 14, 1990. The appellant should have its costs at trial and on appeal against both Yarmouth Equipment Limited and John M. Murphy. Hallett, J.A. 1987 S.H. No. 61042 IN THE SUPREME COURT OP NOVA SCOTIA TRIAL DIVISION BETWEEN: ATLAS SUPPLY COMPANY OF CANADA LIMITED, body corporate, and YARMOUTH EQUIPMENT LIMITED, and JOHN M. MURPHY, Defendants HEARD: at Halifax, Nova Scotia, before the Honourable Mr. Justice William J. Grant, Trial Division, on January 10, 11, and February 9, 1990. DECISION: April 4, 1990 COUNSEL: P. McLellan, Esq., B. Miller, Esq., for the plaintiff D. A. Caldwell, Q.C., D. J. James, for the defendants S.C.A. No. 02318 IN THE SUPREME COURT OF NOVA SCOTIA APPEAL DIVISION BETWEEN: ATLAS SUPPLY COMPANY OF CANADA LIMITED, body corporate and YARMOUTH EQUIPMENT LIMITED, and JOHN M. MURPHY Respondent REASONS FOR JUDGMENT BY: MATTEWS, J.A.

The appellant, which was a wholly owned subsidiary of a major international company, induced the respondent to enter a franchise agreement by making representations as to the viability of the venture. The appellant sought to recover its losses from the respondent and relied on an exclusionary clause. Allowing the appeal in part, that (1) the agreement was unconscionable, having regard to the unequal bargaining power of the parties, the fact that the agreement was prepared by the appellant, and the fact that the appellant induced the respondent with its promotional brochure and its verbal representations as to the venture's viability to enter the franchise agreement; (2) the appellant cannot rely on an exclusionary clause given its unconscionable conduct; and (3) the appellant's claim for the value of the inventory together with pre-judgment interest was payable by the respondent. In a dissenting opinion, it was held that neither the appellant's conduct nor the franchise agreement was unconscionable; rather the respondent was an experienced businessman and the representations as to the venture's viability were mere projections, which he should have realized were unreliable.

d_1991canlii2552.txt

nan THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2013 SKCA 001 Date: 2013-01-08 Between: Docket: CACV2249 McMillan LLP and Michael Friedman Proposed Appellants (Defendants) and Melvin Schneider Proposed Respondent (Plaintiff) and Royal Crown Gold Reserve Inc., Douglas Stewart Scott, Claude Taillefer, and John and Jane Doe (Defendants) Before: Klebuc C.J.S. (in Chambers) Counsel: James Ehmann, Q.C. and Keith Kilback for McMillan LLP and Michael Friedman Scott Spencer for the Respondent, Melvin Schneider Bradley Jamieson for the Respondent, Royal Crown Application: From: 2012 SKQB 111 (CanLII) Heard: June 13, 2012 Disposition: Applications Dismissed Written Reasons: January 8, 2013 By: The Honourable Chief Justice Klebuc Klebuc C.J.S. I. Introduction [1] The proposed appellants, McMillan LLP and Michael Friedman (collectively “McMillan”) are two of the defendants in the within action commenced by the proposed respondent, Melvin Schneider (“the representative plaintiff”). In his statement of claim the representative plaintiff pled that he and others suffered financial losses due to negligence on the part of McMillan. McMillan responded by seeking an order pursuant to Rule 173(c) of The Queen's Bench Rules striking the within action on the ground that it was devoid of merit. They also opposed the certification of the within action on the basis that the relationship between them and the representative plaintiff was insufficient to found a recognized duty of care between a lawyer and non-client. Consequently, no common issue existed upon which class action could reasonably be certified. [2] The learned Chambers judge dismissed the s. 173(c) application and certified the action as a class action against all defendants. See his fiat dated March 15, 2012: 2012 SKQB 111 (CanLII), 392 Sask. R. 199. [3] McMillan then applied pursuant to s. 8 of The Court of Appeal Act, 2000, S.S. 2000, c. C-42.1 and Rule 49 of The Court of Appeal Rules for an order granting them leave to appeal from the Chambers judge's certification order and his dismissal of their Rule 173(c) application. They raised the following grounds in their proposed notice of appeal: 4(a) the learned chambers judge erred in law in failing to find that the relationship between the Respondent (Plaintiff) and the class members (collectively the "Respondent") and McMillan did not fall within category within which existing precedent recognizes duty of care owed by lawyer to non-client; 4(b) the judge erred in law in failing to properly apply the Anns test, in particular: (i) The judge erred in law by conflating foreseeability with proximity in the first leg of the Anns [[1977] All E.R. 492 (U.K.H.L.)] test; and (ii) the judge erred in law by failing to consider and apply the policy considerations which may preclude or negate the finding of duty of care, under the second leg of the Anns test; 4(c) the judge erred in law by relying upon expert evidence as to the standard of care to find that duty of care may be owed by McMillan to non-clients such as the Respondent; 4(d) the judge erred in fact and in law in finding that “the full extent of the conversations between Mr. Friedman and Mr. Scott are not before me, but are proper subject for evidence at trial…” when there was no conflict between the affidavits of Messrs. Friedman and Scott as to what had transpired between them and there was no reason to entertain the supposition that the evidence at trial would be different; 4(e) having found (wrongly, in view of the errors recited above) that McMillan had failed to establish that it was plain and obvious that there was no duty of care owed by McMillan to the Respondent, the judge then erred in law in failing to consider and decide whether the Respondent had met the burden of establishing “some basis in fact” for the proposition that McMillan owed duty of care to the Respondent with respect to the subject matter of the claim. [4] The material facts and procedures undertaken prior to the date of the within application are fully canvassed in the learned Chambers judge's fiat. Thus, only brief review of the facts is necessary. [5] The within action arises out of the purchase by the representative plaintiff and other investors of interests called “cells” in gold exploration prospect owned and promoted by Royal Crown Gold Reserve Inc. (”Royal Crown”). Its sole shareholder and director is Mr. Douglas Scott. [6] Mr. Friedman, lawyer associated with McMillan LLP, provided Mr. Scott with three or more legal opinions which allegedly state that the purchase price paid to Royal Crown for cell could be deducted by the purchaser from his or her taxable income for income tax purposes. Copies of Mr. Friedman’s opinion letters were indirectly made available to potential investors by Royal Crown, including the representative plaintiff. These opinion letters were also posted on Royal Crown’s website where the representative plaintiff and others were able to view them. [7] The representative plaintiff alleged that he and other investors purchased cells based on (a) the representation by Royal Crown that the purchase price paid for cell was deductible from purchaser’s earned income for income tax purposes; and (b) the tax opinions provided by McMillan. Subsequent to purchasing cells from Royal Crown, the representative plaintiff and other purchasers filed tax returns wherein they deducted the purchase price paid for cells from their taxable income. [8] The Canada Revenue Agency disallowed the deduction of the purchase price the representative plaintiff and other purchasers paid for cells from their taxable income. This event resulted in the representative plaintiff and other purchasers suffering damages due to the alleged negligence of McMillan. [9] In support of their Rule 173(c) application, McMillan filed affidavits sworn by Michael Friedman and Douglas Scott wherein they deposed, inter alia, that the tax opinions were not to be given to prospective investors. The representative plaintiff filed an affidavit sworn by David Davies wherein he deposed: [23] Other members of my firm and are often asked to issue an opinion to clients regarding the tax consequences to investors of transaction structured by our clients, including circumstances such as those described in paragraph hereof. My practice, and my firm's practice, is to not issue such an opinion letter without first reviewing all relevant documents and agreements and stating in the scope of the opinion that it is based upon review of those documents and agreements. Our experience has shown complete review of the underlying documents and agreements is necessary in those circumstances because clients often use our opinion as marketing tool to potential investors and we need to ensure the accuracy of the opinion in order to maintain our reputation. [10] The requirement to obtain leave to appeal from an interlocutory order is prescribed by s. of The Court of Appeal Act, 2000, supra, except as otherwise provided by specific statute or regulation. Subsection 39(3) of The Class Actions Act, S.S. 2001, c. C-12.01 provides that leave of justice of this Court is prerequisite for all appeals from an order certifying or refusing to certify an action as class action. [11] The criteria to be considered in leave applications were articulated by Cameron J.A. in Rothmans, Benson Hedges Inc. v. Saskatchewan, 2002 SKCA 119 (CanLII), 227 Sask. R. 121, and are well known to counsel. nan Cameron J.A. said: [6] Generally, leave is granted or withheld in consideration of merit and importance as follows: nan First: Is the proposed appeal of sufficient merit to warrant the attention of the Court of Appeal? nan Second: Is the proposed appeal of sufficient importance to the proceedings before the court, or to the field of practice or the state of the law, or to the administration of justice generally, to warrant determination by the Court of Appeal? [Emphasis in original.] [12] Whether the within proposed appeal is of sufficient merit requires me to consider whether proposed ground of appeal raises an argument or proposition worthy of consideration and not one that is destined to fail. In this sense, am not to definitively decide the merits of proposed ground of appeal advanced by prospective appellant but merely determine whether it warrants consideration by full panel of the Court. Thus, any view may express herein is only relevant to the extent it relates to the criteria set out in Rothmans, Benson Hedges. [13] The following issues, expressed as questions, arise out the submissions by the parties, the facts pled by the representative plaintiff, the affidavits filed by the parties, the decision of the Chambers judge, and the law applicable thereto: A. Did the Chambers judge err by not striking the claim against McMillan on the basis that McMillan owed no duty of care to the representative plaintiff? B. Did the Chambers judge err by certifying the claim of negligence as common issue that predominates over other issues affecting individual members of class? [14] With respect to the first question, I am satisfied the Chambers judge correctly held the action against McMillan was not devoid of merit or vexatious. He reviewed the conflicting decisions relied upon by the parties, the affidavits of Michael Friedman, Douglas Scott and David Davies, and the pleadings. Based thereon, he concluded that a lawyer may owe a duty of care to a non-client in specific circumstances, including circumstances akin to those before him. In his opinion, evidence of clients involved in the mining industry using legal opinions provided by their legal counsel as a marketing tool is so commonly known among tax lawyers that McMillan should have been alive to the practice and should have taken appropriate steps to guard against their opinion letters being inappropriately used for the purpose of inducing potential investors to invest with the client or clients. Based thereon, he determined it was not plain and obvious that the representative plaintiff had no cause of action against McMillan. [15] The Chambers judge also concluded the proximity argument raised by McMillan is one for the trial judge to address for he or she would have the full benefit of expert evidence regarding the duty of care, if any, applicable to the proven facts before the court. In my view, he had no other reasonable choice given the evidence before him was incomplete and conflicted in some respects, and that comprehensive review of expert opinions was required in the context of all evidence that may come before the court during trial. [16] Moreover, the argument by McMillan that the Chambers judge failed to properly apply the Anns [[1977] All E.R. 492 (U.K.H.L.)] test, or to consider policy reasons that may prevent the imposition of duty of care on them, are essentially aspects of their defence and not reasons to strike the negligence claim at this juncture. Thus, the Chambers judge cannot be said to have erred by not taking these factors into account when dealing with the Rule 173(c) application. [17] With respect to the submission that the Chambers judge erred in relying upon Mr. Davies’ affidavit, am satisfied it is an issue of insufficient merit to warrant consideration at this time. To the extent the Davies affidavit speaks to lawyer’s duty of care, it normally would be appropriate for Chambers judge to consider that aspect of an affidavit when determining whether claim advanced by plaintiff is devoid of merit. [18] In sum, am satisfied that the proposed appeal by McMillan regarding Rule 173(c) is prima facie destined to fail and not of sufficient merit to warrant the attention of this Court. [19] That said, turn to Question B. B. Did the Chambers judge err in certifying the claim of negligence as common issue that predominates over other issues affecting individual members of class? [20] While McMillan conceded the cause of action in negligence pled by the representative plaintiff met the requirements of s. 6(1)(a) of The Class Actions Act, they maintain the factual base pled by the representative plaintiff does not establish a common issue which meets the commonality requirements of s. 6(1)(c) of The Class Actions Act. In support of this argument they relied on the decision in Re: Collections Inc. v. Toronto Dominion Bank, 2010 ONSC 6560 (CanLII). In Collections Inc., the Court held that the common issues would do nothing to advance the claims of the class because they were all predicated on theory that had no foundation in fact. The losses the plaintiffs alleged in that case were based on flawed premise. In the instance action, class members suffered real losses allegedly as a result of McMillan’s negligence. These facts, coupled with case law stating a lawyer may owe a duty of care to a non-client and the evidence of Mr. Davies, establish a common issue which appears to meet the requirements of The Class Actions Act. [21] Furthermore, nothing in the Chambers judge’s reasons suggests he applied Rule 173(c) analysis when determining whether “some basis in fact” supported the existence of common issue within the meaning of s. 6(1)(c). Nor is an analysis by this Court of the interplay between Rule 173(c) and s. 6(1)(c) otherwise warranted [22] That said, turn to the submission that the claim against McMillan by each member of the class might be unique and require an individual trial and, therefore, their distinct claims do not comprise common issue for the purposes of s. 6(1)(c). In my view, the Chambers judge made no error in his interpretation of the applicable law or the evidence before him, or in his application of the law to the relevant facts before him, which would warrant leave being granted based on arguments advanced by McMillan. [23] In conclusion, I dismiss both applications for leave with costs to be costs in the cause. Dated at the City of Regina, in the Province of Saskatchewan, this 8th day of January, A.D. 2013. “Klebuc C.J.S.” Klebuc C.J.S.

The proposed appellants are some of the defendants in an action commenced by Schneider against them on the grounds that he, as representative plaintiff, and others suffered financial losses due to negligence on the part of McMillan. The representative plaintiff and other investors purchased 'cells' in gold exploration prospect owned and promoted by Royal Crown Gold Reserve Inc. based on that defendant's representation that the purchase price was deductible from the purchaser's earned income for income tax purposes and the tax opinions provided by McMillan. McMillan's opinion letters were posted on Royal Crown's website. The representative plaintiff purchased the cells and then filed tax returns claiming deduction, which was disallowed by the Canada Revenue Agency. The representative plaintiff commenced this action claiming that he and others suffered financial losses due to McMillan's negligence. McMillan applied to strike the statement of claim on the grounds that it was devoid of merit pursuant to Queen's Bench Rule 173(c) and opposed the certification of the action on the basis that the relationship between them and the representative plaintiff was insufficient to found a recognized duty of care between a lawyer and a non-client. Their application was supported by affidavits indicating that their tax opinions were not to be given to prospective investors. The plaintiff filed an affidavit from another lawyer, who deposed that when he prepared such opinion letters regarding tax consequences he reviewed all the underlying documents and agreements beforehand to protect the reputation of his law firm, knowing that the opinions were often relied upon as marketing tool to potential investors. The Chambers judge dismissed McMillan's application and it brought this application for leave to appeal under s. 8 of The Court of Appeal Act except as provided by s. 39(3) of The Class Actions Act. HELD: The Court dismissed the applications. It held that the Chambers judge was correct in holding that the action was not devoid of merit or vexatious. The judge had reviewed the affidavits and concluded that a lawyer may owe a duty of care to a non-client in specific circumstances, including those of this case. McMillan should have been aware of the use made by the mining industry of opinion letters and taken steps to prevent their opinion being used inappropriately for the purpose of inducing potential investors to invest with their client. The Court also found that the Chambers judge did not err in certifying the claim of negligence as a common issue that predominated over other issues affecting individual members of a class. McMillan's argument that the factual base pled by the representative plaintiff did not establish a common issue to meet the requirements of s. 6(1)(c) of The Class Actions Act failed because, in this case, the class members suffered real losses allegedly as a result of McMillan's negligence. These facts coupled with the case law stating that a lawyer may owe a duty of care to a non-client and the plaintiff's affiant's evidence, established a common issue that met the requirements of the Act.

e_2013skca1.txt

D.P. Ball IN THE SMALL CLAIMS COURT OF NOVA SCOTIA Citation: Wickwire Holm v. Stephen, 2008 NSSM 39 Date: 20080728 Claim: 293130 Registry: Halifax Between: Wickwire Holm v. Melanie Stephen Respondent Adjudicator: J. Scott Barnett Heard: April 29, 2008 Written Decision: July 28, 2008 Counsel: Lyndsay Jardine and Janet Stevenson, Counsel for Wickwire Holm Melanie Stephen, Self‑represented By the Court: [1] INTRODUCTION: The Applicant, Wickwire Holm, has requested a taxation of the accounts that it issued to the Respondent, Melanie Stephen. Janet Stevenson and other members of her firm provided legal services to Ms. Stephen in connection with Ms. Stephen's divorce and related matters. [2] According to her Response to Taxation, Ms. Stephen firmly believes that "this is an obvious overbilling." Ms. Stephen also says that Ms. Stevenson did not keep her informed of all actions taken on her behalf and that, on occasion, Ms. Stevenson acted without instructions. Ms. Stephen further alleges that Ms. Stevenson was negligent with regard to the execution of a Court Order that granted interim exclusive possession of a matrimonial home to Ms. Stephen's estranged spouse, Michael Patriquen. [3] At the outset of the taxation hearing, Ms. Stephen made motion requesting that recuse myself because of an alleged apprehension of bias. After hearing from both parties and considering the matter, dismissed that motion. In the following section of these reasons for decision, will set out in detail why that motion was dismissed. [4] Another procedural matter arose during the Ms. Stephen's cross‑examination of Ms. Stevenson. Specifically, decided to limit the extent of Ms. Stephen's cross‑examination for reasons explained at the hearing. In separate section below, will set out in detail the exact nature of the limitation that imposed and the reasons for it. [5] Otherwise, this was fairly straightforward and uncomplicated taxation. [6] THE RECUSAL MOTION: As indicated, Ms. Stephen made motion at the outset of the taxation hearing requesting that recuse myself. [7] The basis of the motion was that there was reasonable apprehension of bias on my part. [8] By way of background, on October 16, 2006, adjudicated Claim by Paul B. Miller of the law firm Blackburn English against Melanie Jane Stephen and Mega‑Med Marijuana Enterprises Inc. (Claim Number 269894). The Respondent in the taxation hearing before me on April 29, 2008 is the same person as the named Defendant Melanie Jane Stephen in the aforementioned Claim. Ms. Stevenson's representation of the Respondent immediately followed Mr. Miller's representation of the Respondent. [9] In that prior Claim, Mr. Miller sought payment of outstanding legal accounts that he issued to the named Defendants. [10] Ms. Stephen's main defence in that prior Claim was alleged negligence on the part of the Claimant. In the result, Ms. Stephen was wholly unsuccessful in establishing negligence on the part of Mr. Miller but, as required, went on to assess the reasonableness of Mr. Miller's legal accounts and some reductions were made. [11] After the Order flowing from my decision in that prior Claim was issued, Ms. Stephen appealed to the Nova Scotia Supreme Court. The decision rendered in that appeal is not reported but my understanding is that, subject to mathematical error on my part that was corrected, the appeal was dismissed. [12] My decision in that prior Claim was largely an application of the well developed and well known principles relating to taxations of legal accounts and there were no serious issues of credibility that had to be determined. While Ms. Stephen took the position in that prior Claim that nothing was owed to Blackburn English, the final result was that she was ordered to pay several thousand dollars to that firm. [13] The basis for Ms. Stephen's motion for recusal was the simple proposition that because had adjudicated matter in which she was previously involved and in which she had largely been unsuccessful, could not hear this subsequent taxation. [14] The proposition advanced by Ms. Stephen cannot at all be correct. My examination of number of authorities bears this out. [15] recent restatement of the legal principles involved can be found in Wewaykum Indian Band v. Canada, 2003 SCC 45 (CanLII). The criterion for disqualification is whether or not there is reasonable apprehension of bias. In Wewaykum Indian Band v. Canada, supra, the meaning of this concept is discussed at paragraph 60: the apprehension of bias must be reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. In the words of the Court of Appeal, that test is "what would an informed person, viewing the matter realistically and practically and having thought the matter through conclude. Would he think that it is more likely than not that [the decision maker], whether consciously or unconsciously, would not decide fairly." [16] "Bias" means, quite simply, predisposition to decide the issues in way which would suggest that the judge's mind is not completely open: Wewaykum Indian Band v. Canada, supra, at para. 58. [17] The threshold for establishing bias is high. Mere suspicion or surmise is insufficient. In R. v. S. (R.D.), 1997 CanLII 324 (SCC), [1997] S.C.R. 484 at para. 113, Justice Cory wrote: Regardless of the precise words used to describe the test, the object of the different formulations is to emphasize that the threshold for finding of real or perceived bias is high. It is finding that must be carefully considered since it calls into question an element of judicial integrity. Indeed an allegation of reasonable apprehension of bias calls into question not simply the personal integrity of the judge, but the integrity of the entire administration of justice. [18] The burden of demonstrating reasonable apprehension of bias rests with the party arguing for disqualification: Wewaykum Indian Band v. Canada, supra at para. 59. Moreover, the inquiry that must be conducted is very fact‑specific and there can be no "shortcuts": Wewaykum Indian Band v. Canada, supra at para. 77. [19] In both civil law and criminal law contexts, courts have repeatedly found that decision‑maker's participation in earlier proceedings involving the same party or parties who are again before the decision‑maker in fresh, new proceedings does not, and should not, invariably lead to recusal: see, e.g., R. v. Novak, 1995 CanLII 2024 (BC CA), [1995] B.C.J. No. 1127 (C.A.), Cyr v. Roy (1996), 1996 CanLII 10276 (NB CA), 171 N.B.R. (2d) 280 (C.A.), R. v. James, 2000 BCCA 616 (CanLII), [2000] B.C.J. No. 2354 (C.A.), West v. Wilbur, 2002 NBQB 376 (CanLII), [2002] N.B.J. No. 430 (C.A.), Nowoselsky v. Canada (Attorney General), [2007] F.C.J. No. 1386 (F.C.) and Kalo v. Manitoba (Human Rights Commission), 2008 MBQB 92 (CanLII), [2008] M.J. No. 115 (Q.B.). [20] Such prior participation as basis for disqualification, without something more, appears to be, as pointed out by Justice Joyal in Kalo v. Manitoba, supra, at paras. 32 to 34, the exact type of shortcut in reasoning that is inappropriate in such cases of alleged apprehension of bias. [21] In fact, an examination of the cases demonstrates that even when person has previously appeared before the same judge and adverse findings of credibility were previously found with respect to that person, such does not, by itself, require recusal. [22] All Adjudicators, when appointed, must take and subscribe an oath before judge of the Nova Scotia Supreme Court whereby the Adjudicator promises to "do right to all manner of people after the laws of the Province without fear, favour, affection or ill will": Section 6(6) of the Small Claims Court Act, R.S.N.S. 1989, c. 430. There is strong presumption in favour of judicial impartiality. The presumption is that such an oath as that made by an Adjudicator at the outset of his or her appointment will be respected by that Adjudicator. [23] should also point out that in some judicial districts in Nova Scotia, there may only be roster of one or two Adjudicators who hear Small Claims Court cases. Those Adjudicators may well regularly encounter the same witnesses and the same parties time and time again in their role as Adjudicators of the Small Claims Court. Generally, the findings and the decisions of an Adjudicator on one night in Court should not, by themselves, give rise to reasonable apprehension of bias whenever those same persons again appear in the Small Claims Court before the same Adjudicator. [24] In this case, Ms. Stephen requested that recuse myself for no reason other than that she had previously appeared before me in the Small Claims Court as named party in connection with the legal retainer immediately preceding the one in this case. [25] There is simply no evidence of bias in this case. Perhaps Ms. Stephen speculates that will not be able to confine myself to the evidence presented to me in this taxation when coming to decision. That concern is unfounded. [26] In the circumstances, denied Ms. Stephen's recusal motion and proceeded to hear the taxation. [27] PRINCIPLES APPLICATION TO THIS TAXATION: The Legal Profession Act, S.N.S. 2004, c. 28, s. 66 requires that determine whether or not the Applicant's legal accounts are "reasonable and lawful." The onus of demonstrating both of these qualities rests with the Applicant: Gorin v. Flinn Merrick, (1994), 1994 CanLII 4327 (NS SC), 131 N.S.R. (2d) 55 (T.D.), aff'd (1995), 1995 CanLII 4325 (NS CA), 138 N.S.R. (2d) 116 (C.A.). [28] Civil Procedure Rules 63.16(1) and (2) and 63.33(1) and (2) are obviously relevant and must be taken into account. [29] also note that Chapter 12 of the Nova Scotia Barristers' Society Legal Ethics and Professional Conduct Handbook makes reference to number of factors that lawyer may consider when determining whether or not legal fee that the lawyer intends to charge client is reasonable. Those factors are appropriately considered when assessing the reasonableness of legal account during taxation. [30] In this case, was presented with legal accounts derived from docketed time entries. While focus may necessarily be placed on few (or even many) such entries, particularly ones that "stand out" and thus require greater scrutiny, do not believe that it is always necessary to examine every single entry in detail on line‑by‑line basis. An overall view can be taken of the entries contained in an account when assessing reasonableness: Tannous v. Halifax (City), [1995] N.S.J. No. 422 (T.D.). [31] note that disbursements are subject to the same requirements of reasonableness and lawfulness as any other portion of lawyer's accounts and the onus of proof rests with the lawyer to justify the disbursement charges: Law Profession Act, supra, ss. 65(a) and 66. [32] have taken all of the foregoing factors into account in assessing the legal accounts presented by the Applicant. [33] EVIDENCE OF THE APPLICANT AT THE HEARING: Ms. Stevenson testified on behalf of the Applicant and she fully explained the nature and the scope of her retainer by Ms. Stephen. copy of each of the legal accounts that the Applicant issued to Ms. Stephen were admitted into evidence (Exhibit C2) as was the signed Retainer Agreement (Exhibit C3). [34] In nutshell, Ms. Stevenson was retained at the beginning of August 2006 to act for Ms. Stephen in connection with divorce action commenced by Ms. Stephen's husband, Michael Patriquen. Ms. Stephen was dissatisfied with her prior solicitor's services and her immediate concern was what to do about an Order granting interim exclusive possession of the matrimonial home and interim custody of the child of the marriage to her husband. [35] Ms. Stevenson explained the complicated legal picture presented by Ms. Stephen's family law matter, the criminal prosecutions against Ms. Stephen and the civil lawsuit between Ms. Stephen's husband and the purported purchaser of piece of property that Ms. Stephen had sold. [36] Among other things, there were problems with disclosure from Ms. Stephen's husband in the divorce action, with the settlement of the Order following an Interim Application by Ms. Stephen's husband before Mr. Stevenson's retainer, and with the pursuit of Contempt Application concerning Mr. Patriquen's alleged failure to abide by previous Court Orders. [37] Shortly before the beginning of the two day trial in the divorce Action, Ms. Stevenson testified that Ms. Stephen raised the possibility of an adjournment. Ms. Stevenson advised against seeking an adjournment and Ms. Stephen accepted this advice. The parties to the divorce Action instead used the first day of the scheduled trial as Settlement Conference. Unfortunately, the parties could not reach an agreement. [38] Shortly after the unsuccessful Settlement Conference, Ms. Stephen informed Ms. Stevenson that she intended to represent herself. The reason, according to Ms. Stevenson, was Ms. Stephen's stated inability to afford the cost of legal services. [39] Ms. Stevenson says that the time entries set out in the legal accounts filed with the Court (and previously submitted to the Respondent at the time of issuance) accurately describe the work that she and others carried out on behalf of Ms. Stephen as well as the length of time that it took to do that work. [40] The total amount of the accounts issued to Ms. Stephen is $21,247.17. Of that total, Ms. Stephen has paid the sum of $7,565.32, leaving claimed principal balance owing of $13,681.85, plus interest. [41] note that the Retainer Agreement provides for payment of interest on overdue accounts at rate of 1½ percent month. The Applicant has calculated interest to February 22, 2008 (amounting to $1,079.29). [42] The Applicant's evidence was presented during the time span of approximately thirty minutes. [43] CROSS‑EXAMINATION CONDUCTED BY THE RESPONDENT: After Ms. Stevenson had given her evidence in chief, called upon Ms. Stephen (who represented herself at the taxation hearing) to begin cross‑examination, if desired. Ms. Stephen elected to question Ms. Stevenson. [44] From the very beginning, Ms. Stephen engaged in tedious, tired and totally ineffective cross‑examination that really shed very little light on the relevant issues at hand. [45] By way of but one example of series of questions that unfortunately was repeatedly posed numerous times, Ms. Stephen asked Ms. Stevenson to describe the exact content of emails referred to in various time entries in the various legal accounts. [46] Ms. Stevenson responded by discussing the general nature of the emails but she could not recite the exact contents (and understandably so, in my opinion, given that few people can reasonably be expected to possess infallible photographic memory). [47] Ms. Stephen would then ask Ms. Stevenson to produce copy of the email in question. Ms. Stevenson was not in position to produce each and every piece of email correspondence referred to by Ms. Stephen but she repeatedly noted that Ms. Stephen was either copied with emails to others or the email itself was actually sent to Ms. Stephen as the sole recipient. [48] More often than not, Ms. Stephen would then admit to the Court that she actually had received copy of the email in question. She would then move onto the next chronological time entry. [49] After approximately fifteen minutes of this kind of questioning, asked the Respondent to explain her purpose in engaging in this type of cross‑examination. Ms. Stephen indicated that she intended to go through all of the accounts line by line. Unfortunately, it was never made apparent why it would be necessary to proceed in that fashion or why Ms. Stephen thought that she might achieve something through this type of questioning. [50] At that point, indicated to Ms. Stephen that was exercising my discretion to limit her cross‑examination, which told her was, in my view, largely vexatious, to period of not more than one and one‑half hours, in addition to the fifteen minutes of cross‑examination that had already taken place. In my view, that total amount of time was more than sufficient for Ms. Stephen to canvass the relevant issues. [51] Ms. Stephen argued strenuously that to limit cross‑examination in this manner would constitute breach of natural justice. She stated that she would need exactly double that amount of time (i.e. three hours) to complete her questioning. [52] In the end, however, Ms. Stephen did respect my ruling and kept her well advised of the amount of time remaining so that she could monitor how best to proceed with her cross‑examination. She ultimately used her full allotment of time. [53] By giving clear warning to Ms. Stephen that the time available to her to cross‑examine Ms. Stevenson would be limited, the hope was that Ms. Stephen, who was clearly articulate and capable of representing herself, would focus on something other than minor and largely inconsequential details. regrettably cannot say that the limitation had the fully desired effect. [54] There is very little in the Small Claims Court Act, supra, which specifically sets out the procedure to be followed in the Court. [55] For example, Section 28 does discuss the issue of what evidence an Adjudicator may or may not admit but that section can hardly be described as complete code of civil procedure or of evidence. [56] Neither the Small Claims Court Forms and Procedures Regulations, N.S. Reg. 17/93, as amended, nor the Small Claims Court Taxation of Costs Regulations, N.S. Reg. 37/2001, as amended, really provide much guidance respecting appropriate procedure to be followed in the Small Claims Court. [57] It has previously been held that reference can be made to the Nova Scotia Civil Procedure Rules for assistance in cases where there is no applicable Small Claims Court civil procedure provision: Malloy v. Atton (2004), 2004 NSSC 110 (CanLII), 225 N.S.R. (2d) 201 (S.C.). [58] find Civil Procedure Rule 31.03 to be of some assistance. The relevant portions state as follows: Scope of examination and cross‑examination of witnesses 31.03 (1) The court shall exercise reasonable control over the mode of interrogation of witness so as, (a) to make such interrogation as rapid, as distinct, and as effective for the ascertainment of the truth, as may be, and (b) to protect the witness from undue harassment or embarrassment. (4) The court may disallow any question put in cross‑examination of any party witness that appears to the court to be vexatious and not relevant to any matter proper to be inquired into in the proceeding. [59] brief and by no means comprehensive search for case law on my part revealed only one case, that of Campbell v. Turner‑Lienaux (1998), 1998 CanLII 1828 (NS CA), 167 N.S.R. (2d) 196 (C.A.), in which cross‑examination was time‑limited. In that case, however, the Court of Appeal seemed to be at pains to mention that the time limitation of cross‑examination arose during the course of an Application for Summary Judgment and not during trial. The taxation hearing before me more closely resembles trial than an Application and thus the Court of Appeal's decision may not be particularly applicable. [60] In the final result, the Small Claims Court must have control over its own procedure relating to the questioning of witnesses. Otherwise, the process could easily become unmanageable. The temporal limitation of cross‑examination should be within the Court's scope of discretion. [61] That said, however, particular attention must be paid to Section of the Small Claims Court Act, supra, in all that is done. That section requires the Court to adjudicate claims informally and inexpensively while nevertheless respecting the requirements of law and natural justice. [62] The placement of time‑limitations on cross‑examination should be the extreme exception and not the general rule. However, in the special circumstances of this case, thought that it was the best way to ensure that the Respondent had full and fair opportunity to challenge the Applicant's evidence while at the same time providing Ms. Stevenson with some measure of relief from vexatious questioning (in respect of which thought she demonstrated great restraint). [63] note that placed no restriction on Ms. Stephen's own direct evidence, other than that such evidence be relevant and non‑repetitive. [64] ANALYSIS OF THE LEGAL ACCOUNTS: intend to consider Ms. Stephen's specific complaints regarding the legal accounts. will also consider the reasonableness of the accounts. There can be no dispute that the accounts are lawful. [65] Ms. Stephen's first complaint is that she was "overbilled." find this complaint to be unfounded. [66] Ms. Stevenson's initial hourly rate as set out in the Retainer Agreement, and the nominal increase that took place during the course of the retainer, are commensurate with Ms. Stevenson's level of legal experience. The hourly rates were (and are) reasonable. Although Ms. Stephen decried the $5 an hour increase in Ms. Stevenson's hourly rate as of January 1, 2007, the Retainer Agreement clearly provides that hourly rates "are subject to review and possible adjustment once per year, usually in January." [67] In reviewing the accounts, it is clear that Ms. Stevenson asked more junior lawyers and other members of the Applicant law firm to assist with Ms. Stephen's matter in appropriate circumstances (and as expressly discussed in the Retainer Agreement). The rates charged for those individuals' work also appear to be reasonable. [68] Further, Ms. Stevenson made voluntarily reduction in the amount of two legal accounts issued to the Respondent. While the exact reason for these reductions was not stated in evidence, suspect that it was because of the time spent by junior lawyer carrying out legal research. [69] If so, those reductions cannot be impugned and find that they were appropriate. The research added value to the file but the number of hours actually spent is perhaps reflective of young lawyer's self‑education, not all of which should be the Respondent's responsibility to fund. [70] further find without hesitation that the docketed time accurately reflects the actual amount of time spent working on Ms. Stephen's matter. The descriptions associated with each docketed time entry are clear and complete. They are more than sufficient for me to ascertain what work was carried out for Ms. Stephen. The work carried out and the time spent pursuing that work were reasonable. [71] Having reviewed all of the time entries, I can find no indication whatsoever of overbilling whether with respect to legal fees or disbursements. In addition to the issues already mentioned, Ms. Stephen made reference in her Response to Taxation to Ms. Stevenson's "make work" projects but can identify no such projects in these accounts. [72] As previously noted, Ms. Stephen also alleged that Ms. Stevenson took action on her behalf without getting instructions from Ms. Stephen beforehand. However, this complaint focused solely on the question of whether or not Ms. Stephen instructed Ms. Stevenson to attend at Crownside when Mr. Patriquen's criminal case was before the Nova Scotia Supreme Court. Ms. Stephen admitted in her own direct evidence that she had authorized Ms. Stevenson to have contact with Ms. Stephen's criminal defence lawyer on many occasions and she did not raise any other instances of unauthorized work beyond one. She did say that she did not authorize any member of the Applicant to attend Crownside. [73] Ms. Stevenson, in contrast, stated that Ms. Stephen expressly asked her to attend Crownside. [74] Of the two versions provided to the Court, prefer Ms. Stevenson's evidence on this point. [75] The emails passing between Ms. Stephen and Ms. Stevenson are compelling. [76] In particular, after Ms. Stephen expressly informed Ms. Stevenson of Mr. Patriquen's scheduled appearance in Crownside (see email of January 16, 2007 in Exhibit D23), and after Ms. Stevenson's email to Ms. Stephen reporting on what happened at Crownside (see email of January 18, 2007 in Exhibit D24), Ms. Stephen's reply was not one of indignation but rather of thanks that Ms. Stevenson had attended (see email from Ms. Stephen to Ms. Stevenson dated January 18, 2007 in Exhibit D25). [77] Had Ms. Stevenson's attendance at Crownside been unauthorized, it is difficult to see why Ms. Stephen would not have immediately asked Ms. Stevenson why she went to Crownside. [78] Apparently, Ms. Stephen's estranged husband had either been convicted of or plead guilty to criminal charge and he did not pay significant fine associated with the crime. Mr. Patriquen's non‑payment of the fine was to be discussed at Crownside. Because of the potential impact of that financial matter to the divorce Action, it makes sense that Ms. Stephen would instruct Ms. Stevenson to attend to see what financial information might come forward. [79] am also mindful of the degree of pressure Ms. Stephen must undoubtedly have been experiencing at the time of Mr. Patriquen's appearance in Court. Money was tight and she was facing criminal charges regarding alleged money laundering and the possession of proceeds of crime in addition to ongoing matters in civil court including the divorce Action involving husband who was, according to Ms. Stephen, "nightmare" and "monster." Ms. Stephen stated in closing submissions that only now is she "starting to come out of the fog" (again, the Respondent's description). question the extent to which Ms. Stephen can accurately recall events during this extremely difficult period of her life. [80] Incidentally, Ms. Stephen freely admitted (without any prompting) that she was convicted of the criminal charges laid against her. Those convictions obviously impact negatively on Ms. Stephen's credibility. That said, have placed very little weight on those convictions in coming to the conclusion that Ms. Stevenson's evidence regarding her Crownside appearance should be preferred over that of Ms. Stephen. The other matters to which have previously referred are sufficient by themselves to cause me to seriously doubt Ms. Stephen's assertion that she did not authorize Ms. Stevenson to attend Crownside. [81] now come to Ms. Stephen's complaints respecting the Interim Order of September 18, 2006 of Associate Chief Justice Ferguson. The Order was entered as Exhibit D15. [82] By way of brief background, that Order granted Mr. Patriquen exclusive interim possession of the matrimonial home in which Ms. Stephen was living, effective September 22, 2006. Ms. Stephen says that due to Ms. Stevenson's negligence, Ms. Stephen was locked out of her home with only the clothes on her back. The police enforced the Order on the afternoon of September 22, 2006, day that Ms. Stephen says is "the day that has forever changed [her] life." [83] Ms. Stephen then goes onto say that because of Ms. Stevenson's failure to specify, in the Order, the actual time at which Ms. Stephen had to leave the matrimonial home, she was forced to abandon significant amount of property in the matrimonial home and subsequent Application had to be made to secure the return of those abandoned items. She alleges that an Application in December 2006 before Justice Lynch would not otherwise have been necessary. [84] For her part, Ms. Stevenson said that it is not common to put in an interim possession Order an exact time on particular day that one party must vacate matrimonial home. It was Ms. Stevenson's understanding in dealing with Mr. Patriquen's divorce lawyer that the Order was not going to be enforced until very late in the afternoon of September 22, 2006. However, it appears that Mr. Patriquen decided to call upon the assistance of the RCMP to have the Order enforced couple of hours earlier. [85] The blame for what happened to Ms. Stephen on September 22, 2006, appears to rest largely if not exclusively with Mr. Patriquen. I frankly cannot see any negligence on the part of Ms. Stevenson (she reasonably relied upon the representation of Michael Patriquen's lawyer about when the Order would be enforced) nor do I see any of the work following September 22, 2006 as being work that was necessitated by any alleged negligence. [86] As Ms. Stevenson pointed out, the Application before Justice Lynch in December 2006 involved number of issues, only some of which related to the sought‑for return of Ms. Stephen's possessions that remained in the matrimonial home. Even if Ms. Stephen's allegation of negligence had been proven (which it was not), all of the work carried out after September 22, 2006 does not relate solely to addressing the ramifications of what Mr. Patriquen did in enforcing the interim possession portion of the Order. [87] That being said, Ms. Stephen seems to have had an unusual number of possessions in the matrimonial home just few short hours before she knew, based upon information provided by Ms. Stevenson, that she had to vacate the premises. This fact is not easily explained but it was clear from the evidence that Ms. Stephen had actually wanted to stay in the matrimonial home indefinitely. [88] There was one final argument raised by Ms. Stephen that will address. [89] Ms. Stephen argued that because she had been making payments on the accounts, the Applicant was therefore not permitted to seek to have its accounts taxed. There is no authority of which am aware that supports this argument nor is there any principled reason that can think of to explain why such an argument should be sustained. [90] CONCLUSION: In the result, I am prepared to certify the accounts presented by the Applicant as filed and I will prepare a Certificate of Taxation to that effect. [91] Neither party made any submissions with respect to costs. However, am prepared to allow the Applicant to recover the taxation fee of $87.06. Small Claims Court Adjudicator

The applicant law firm applied for a taxation of accounts in a complicated family law matter. The client contended that there was obvious overbilling and that the solicitor was negligent in failing to specify in an interim Order the actual time at which she had to leave the matrimonial home. Accounts as presented are certified; there was no indication whatsoever of overbilling, whether with respect to legal fees or disbursements, and there was no negligence on the part of the solicitor as she had acted reasonably in relying on the representations of the husband's lawyer as to when the Order would be enforced. It is not always necessary to examine every single entry in detail on a line-by-line basis; an overall view of the entries contained in an account can be taken when assessing reasonableness. The temporal limitation of cross-examination is within the Small Claims Court's scope of discretion in special circumstances.

c_2008nssm39.txt

E.J. GUNN Court of Appeal for Saskatchewan Docket: CACR2783 Citation: Smith, 2018 SKCA 42 Date: 2018-06-01 Between: Daniel Smith And Her Majesty the Queen Before: Jackson, Caldwell and Schwann JJ.A. Disposition: Appeal dismissed Written reasons by: The Honourable Madam Justice Schwann In concurrence: The Honourable Madam Justice Jackson The Honourable Mr. Justice Caldwell On Appeal From: CR 80 of 2014, Prince Albert Appeal Heard: February 7, 2018 Counsel: Gordon Kirkby for the Appellant Beverly Klatt for the Respondent Schwann J.A. I. Introduction [1] Daniel Smith was found guilty of the second degree murder of Roger Byer following a trial before a judge and jury. Mr. Smith was sentenced to life imprisonment with no eligibility for parole for 12 years. [2] The pivotal evidence implicating Mr. Smith in the murder of Mr. Byer came from the testimony of Mr. Smith’s former common law spouse, Susan Saxon, and his friend, Dwight Windrum. [3] In the course of pre-charge conference with Crown and defence counsel, the trial judge sought input from counsel as to whether Vetrovec warning (R Vetrovec, 1982 CanLII 20 (SCC), [1982] SCR 811 [Vetrovec]) should be given to the jury in relation to the testimony of Ms. Saxon and Mr. Windrum. Defence counsel initially, and quite strongly, argued in favour of its inclusion. However, after lengthy exchange between the trial judge and both counsel, defence counsel not only abruptly withdrew his request for Vetrovec warning, but insisted that it not be given. [4] In the end, the trial judge did not give a Vetrovec warning in relation to either witness. In his appeal to this Court, Mr. Smith argues that Vetrovec warning was mandatory, regardless of the position taken by his counsel at the time of trial. [5] For the reasons that follow, I would dismiss Mr. Smith’s appeal. A. The facts relating to the death of Mr. Byer [6] Mr. Byer died on or about January 20, 2010. His body was discovered several months later on April 1, 2010, in an isolated, abandoned farmyard in rural Saskatchewan. [7] At the time of his death, Mr. Byer had been employed as an automated teller machine (ATM) technician, whose responsibilities included refilling ATMs. His duties required him to carry and transport large amounts of cash. Although the police found $12,400 in the glove compartment of Mr. Byer’s truck, it was believed that approximately $23,000 was missing and unaccounted for. [8] Mr. Byer’s body was found face down behind his truck. The police observed red staining, consistent with blood, on the passenger door frame. They also found one bullet and three shell casings. Two of the shell casings were located beside the passenger-side door, with the third found next to Mr. Byer’s body. The bullet was discovered under the brim of Mr. Byer’s ball cap. [9] subsequent forensic analysis determined that Mr. Byer had sustained three gunshot wounds, of which only one was fatal. According to the forensic pathologist, the fatal bullet had entered the back of Mr. Byer’s head, striking the bottom of his right occipital bone and exiting above his right eye. This bullet wound would have caused almost instantaneous death. B. Testimony of Ms. Saxon [10] Ms. Saxon was Mr. Smith’s common law spouse at the time of Mr. Byer’s death. She testified that on the morning of January 20, 2010, Mr. Smith met Mr. Windrum for coffee in Swift Current. Mr. Smith returned to their home in Dinsmore, Saskatchewan later that morning, picked up Ms. Saxon and they proceeded together to Saskatoon in Mr. Smith’s truck. On their return trip, Ms. Saxon fell asleep but awoke to discover that they were travelling in northerly direction to meet up with Mr. Byer. Mr. Byer and Mr. Smith were close friends. short while later, Mr. Smith and Mr. Byer, who were driving their respective trucks in opposite directions along the same highway, eventually encountered each other. They pulled over and briefly conversed. Ms. Saxon overheard Mr. Byer say something like “did you bring them” to Mr. Smith. In response to Mr. Byer’s question, Mr. Smith pulled out two handguns. Ms. Saxon testified that she had never previously seen the two handguns that were produced by Mr. Smith. Mr. Smith and Mr. Byer then drove to nearby abandoned farmyard. [11] When they arrived at the farmyard, all three individuals exited their vehicles. Ms. Saxon testified that she saw Mr. Smith place the two handguns on the hood of Mr. Byer’s truck. At this point, as she put it, things seemed “friendly” between the two men. [12] Ms. Saxon walked towards some outbuildings and beehives to stretch her legs. As she returned to Mr. Smith’s truck, she heard two gunshots, followed by yelling coming from Mr. Byer. She testified that she saw Mr. Smith and Mr. Byer point guns at each other, with Mr. Byer on his knees by the driver’s side of his truck. She noticed blood on Mr. Byer’s face and hand. She heard Mr. Byer plead with Mr. Smith and offer to give him money in exchange for his life. [13] Ms. Saxon says Mr. Smith then ordered Mr. Byer to get the money from his truck, which he did. Mr. Smith instructed Ms. Saxon to retrieve Mr. Byer’s cellphone, collect the money, and place those items in Mr. Smith’s truck. In the course of doing as she was instructed, Ms. Saxon heard another gunshot. The next thing she observed was Mr. Byer lying face down on the ground behind his truck making “gaspy” sounds with Mr. Smith standing over him holding black gun. Ms. Saxon heard one final gunshot as she re-entered Mr. Smith’s truck. When Mr. Smith returned to his truck, he handed her what she described as Mr. Byer’s “bloody” gun. [14] Ms. Saxon and Mr. Smith proceeded to farm site owned by one of Mr. Smith’s friends where she believes Mr. Smith hid the guns and money. She later witnessed Mr. Smith dump ammunition and Mr. Byer’s cellphone in farm field along their way home. Apart from one of the handguns, none of these items were ever recovered by the police. When they returned home, Mr. Smith took the clothing he had worn that day together with Ms. Saxon’s clothing and placed them in bag. Ms. Saxon never saw that clothing again. [15] Ms. Saxon and Mr. Smith remained together in an on and off spousal relationship for four more years following Mr. Byer’s murder. They eventually separated in November 2013. [16] Ms. Saxon was contacted by the police twice about Mr. Byer’s death. The first contact came in February 2013. Ms. Saxon denied any knowledge of the incident. At trial, Ms. Saxon conceded that she had lied to the police because she was fearful of Mr. Smith. She said he was controlling and that he had warned her that she was an accomplice and if he went down, so would she. [17] Ms. Saxon was contacted by the RCMP second time on May 20, 2014. At the commencement of this police interview, Ms. Saxon once again denied any knowledge of Mr. Byer’s death. However, as the interview progressed, Ms. Saxon began to tell the officer what she knew about it. Ms. Saxon testified that by May 2014 she was more self-assured and was confident she would have protection from Mr. Smith. She did not elaborate on what she meant by “protection”. C. Testimony of Mr. Windrum [18] Mr. Windrum also testified for the Crown. He was an avid gun collector and Mr. Smith’s friend. Mr. Windrum testified that, at some point shortly before Mr. Byer’s murder, Mr. Smith had inquired about his willingness to sell gun to one of Mr. Smith’s “friends”. Mr. Smith proposed to serve as an intermediary in the transaction. [19] Mr. Windrum was initially reluctant to transact business in this fashion without direct contact with the proposed purchaser. He eventually relented and, at some point in January 2010 (he was unable to recall the exact date), he gave Mr. Smith .40 calibre “Glock” handgun and .22 calibre semi-automatic handgun, as well as some ammunition. These items were given to Mr. Smith on the understanding that he would show the guns to his friend, who was interested in purchasing one of them. [20] Several days after their gun exchange, Mr. Smith returned both handguns to Mr. Windrum. Mr. Smith informed Mr. Windrum that when he showed the guns to his friend, his friend began to shoot at him with the .22 calibre handgun. Mr. Smith told Mr. Windrum that he had returned fire, and then said “I think he’s dead” and “I shot at him three times” (Trial Transcript at T226). [21] On Mr. Smith’s insistence, Mr. Windrum changed the barrel of the Glock handgun several months later. He was initially reluctant to do so but, once again, he relented. Mr. Windrum said he was afraid of Mr. Smith because Mr. Smith had told him that he was just as guilty as he was. [22] The RCMP contacted Mr. Windrum on May 14, 2014. He did not co-operate with them because he “was afraid of [his] position and what had happened” (at T238). At trial, Mr. Windrum acknowledged that he had been arrested and charged with unspecified offences arising from these events and that his charges were pending at the time of Mr. Smith’s trial. D. Testimony of Mr. Smith [23] Mr. Smith took the stand in his own defence. His version of events leading up to his interaction with Mr. Byer at the abandoned farmyard largely conformed to the testimony of Ms. Saxon. However, his account of what transpired after they arrived differed materially from her version of events. [24] According to Mr. Smith, Mr. Byer produced two boxes from his truck. One box contained four guns and the other contained white powder. Mr. Smith assumed that Mr. Byer had somehow acquired the handguns directly from Mr. Windrum. [25] Mr. Smith testified that he and Mr. Byer began to test fire the guns. In the course of doing so, Mr. Smith said Mr. Byer came up with the idea to stage fake robbery. According to Mr. Smith, the robbery idea was contrived by Mr. Byer as ruse to obtain money to repay his employer for funds he had stolen. Mr. Byer’s plan involved having Mr. Smith strike him on the nose and rough him up. According to Mr. Smith, things got out of hand after Mr. Smith struck him with more force than was expected. Mr. Smith testified that Mr. Byer became quite aggressive and began to pursue him with one of his guns. On seeing this happen, Ms. Saxon, who was standing near the passenger door of Mr. Byer’s truck, shot at Mr. Byer three times in rapid succession. [26] Mr. Smith testified that, when he and Ms. Saxon returned to his truck, she told him that she had overheard Mr. Byer say he was going to shoot Mr. Smith, so she picked up gun to defend him. [27] Mr. Smith also testified that it was Ms. Saxon who had taken the money from Mr. Byer’s truck, not him. He denied dumping ammunition in ditch or hiding the money at his friend’s farm. [28] Mr. Smith conceded that he subsequently received $500 of the stolen money from Ms. Saxon, but maintained that Ms. Saxon had kept the balance of the money and that she had financial problems. Mr. Smith conceded that he had returned two handguns to Mr. Windrum roughly one week after the incident, and conceded that he had asked Mr. Windrum to change the barrel of the Glock handgun. But, as Mr. Smith explained at trial, his reason for doing so was to protect Mr. Windrum and Ms. Saxon. E. The Glock handgun [29] Glock handgun was subsequently seized by the police from Mr. Windrum. forensic expert called by the Crown gave opinion evidence about this gun, the shell casings and the single bullet that had been found at the murder scene. The Crown’s expert confirmed that, even though the barrel on the Glock handgun was not the original factory barrel, other indicia from that gun enabled him to conclude that the three expended shell casings had been fired from the Glock handgun. The expert also confirmed Mr. Windrum’s evidence about the changed barrel on the Glock. When asked what conclusion could be drawn from the changed barrel, the expert was of the opinion that the bullet was not fired from the changed barrel, and the most he could say was that it may have been fired from the original factory barrel that came with this type of handgun. III. issues 30] Mr. Smith filed a self-crafted notice of appeal, in which the following grounds of appeal were raised:a. The judge fell into error in failing to warn the jury as to the dangers of relying upon the evidence of Susan Saxon and Dwight Windrum following the decision in Vetrovec. He should not have acceded to the request of my counsel to give legal directions to the jury which excluded warning as to the potential dangers of relying upon the evidence of Saxon and Windrum without seeking corroboration independent of their testimony. b. My counsel Morris Bodnar Q.C. fell into error in failing to pursue an application to the trial judge to give such direction. His decision to withdraw his application could only have been based upon fundamental misunderstanding of the strength of the ballistic and scientific evidence. The scientific evidence did not, contrary to the submissions of Mr. Healey [the Crown prosecutor] support the version of events given by Susan Saxon. c. Mr. Healey was wrong to assert (during argument as to “Vetrovec”) there was ballistic/forensic pathology evidence which could support the account of Susan Saxon. Mr. Bodnar Q.C. should have raised opposition to these submissions rather than conceding them. d. Without material which touched upon the likely position of the shooter and the angle of the firearm the prosecution had no evidential authority to assert that the testimony of Susan Saxon was corroborated by the evidence at the scene. Further neither of the two experts called by the prosecution were able to assist in terms of the likely position of the shooter or the manner in which the gun would have been held when the shots were fired. The prosecution and my own counsel failed to appreciate the limitations on the inferences which could properly be drawn from the expert evidence. e. The failure to give such fundamental direction permitted the jury to place reliance upon the evidence of Saxon and Windrum without guidance from the judge as to dangers inherent in their testimony. The judge also failed to give guidance to the jury as to the acknowledged wisdom of looking for independent supporting evidence when the witness in question had potential motive to lie under oath. [31] Mr. Smith subsequently retained different legal counsel for his appeal. In his factum, Mr. Smith’s appellate counsel abandoned the ineffective counsel ground and proceeded solely with the argument that the trial judge had erred in law by failing to give Vetrovec warning in relation to the testimony of Ms. Saxon and Mr. Windrum. Failure to give Vetrovec warning when the circumstances require one to be given is an error of law (R Bevan, 1993 CanLII 101 (SCC), [1993] SCR 599 [Bevan]; Brooks, 2000 SCC 11 (CanLII), [2000] SCR 237 [Brooks]). [32] secondary issue arising from this appeal is whether the verdict can be salvaged under the curative provision set forth in s. 686(1)(b)(iii) of the Criminal Code if conclude that Vetrovec warning should have been given. IV. analysis A. Did the trial judge err in failing to give Vetrovec warning? [33] Evidence given by witness whose credibility is inherently suspect, or who is for some reason unsavoury or disreputable, may give rise to high level of concern and warrant “caution”. In these circumstances, trial judges should give strong consideration to instructing jury about the dangers of relying on witness’s unconfirmed evidence and explain to the jury why it is dangerous to do so without some corroborating evidence. [34] The need to take special care with certain types of witnesses emanates from concern that lay jurors lack the necessary experience to adequately assess witness’s credibility. This purpose was explained in Worm, 2014 SKCA 94 (CanLII) at para 14, 442 Sask 228 [Worm]: [14] Vetrovec warning therefore serves practical purpose: it alerts jury to the danger of relying on the unsupported evidence of unsavoury witnesses and explains the reasons for special scrutiny of their testimony. In appropriate cases, it may also give jury tools to help to identify evidence capable of enhancing the trustworthiness of unsavoury witnesses. The overall goal of Vetrovec warning is to ensure that jurors attain an appropriate level of comfort before convicting an accused on the basis of what has traditionally been considered unreliable evidence. See: R. v. Khela, 2009 SCC (CanLII), [2009] S.C.R. 104 at para. 47. (Emphasis in original) [35] In assessing when to give warning, the Supreme Court of Canada in Vetrovec moved away from rigid, categorical approach in relation to Crown witnesses in favour of more holistic approach based on the trial judge’s appreciation of the circumstances and factors at play in the trial that might otherwise impair the credibility or trustworthiness of particular witness. [36] To that end, trial judges must examine the circumstances of each case and the factors that might impair the worth of witness’s testimony (Brooks at para 5; Carroll, 2014 ONCA (CanLII) at para 65, 304 CCC (3d) 252 [Carroll]). Where witness’s evidence is centrally important to the Crown’s case, yet may be suspect because of the disreputable and untrustworthy character of the witness, “clear and sharp” warning may be appropriate to alert the jury to the risks of adopting the evidence without more (Brooks at para 3; Carroll at para 62). [37] Broadly speaking, in assessing whether Vetrovec warning should be given, the trial judge must give prominence to two factors: the credibility of the witness and the importance of the witness’s evidence to the Crown’s case. This point was summarized in Brooks: [80] In summary, two main factors are relevant when deciding whether Vetrovec warning is necessary: the witness’s credibility, and the importance of the witness’s testimony to the Crown’s case. No specific threshold need be met on either factor before warning becomes necessary. Instead, where the witness is absolutely essential to the Crown’s case, more moderate credibility problems will warrant warning. Where the witness has overwhelming credibility problems, warning may be necessary even if the Crown’s case is strong one without the witness’s evidence. In short, the factors should not be looked to independently of one another but in combination. [38] Trial judges must carefully assess the trustworthiness of Crown witnesses who seek to avoid prosecution or incarceration by testifying for the Crown. That said, and as courts have clarified, this factor on its own does not mandate Vetrovec warning (Brooks at para 12; Carroll at para 66). Instead, trial judges must assess the credibility of the Crown witness including the testimony of accomplices in light of the circumstances of the case to determine whether the trustworthiness of that witness is impaired. [39] While warning for accomplices had been automatic prior to Vetrovec, the notion that all accomplices are, by their nature, unsavoury, was decidedly rejected by the Supreme Court: ... [i]t has been suggested that an accomplice is not to be believed since he is self-confessed criminal and is ‘morally guilty’. This argument is easily rejected. First, we accept the testimony of other criminals without automatically requiring warning as to their credit. Second, the ‘moral guilt’ of an accomplice must vary with the nature of the crime involved. One who is guilty of an assault may be thought to be more trustworthy than an incorrigible counterfeiter. Yet the present law makes no distinction between them. Once witness is classified as an accomplice, his testimony is automatically regarded as suspect. (Vetrovec at 823) [40] This Court in Brass, 2007 SKCA 94 (CanLII), 226 CCC (3d) 216, established more nuanced approach to the testimony of accomplices with the articulation of several factors the trial judge ought to consider in assessing the relative trustworthiness of this type of witness. The factors identified are these: [24] Based on Vetrovec and the subsequent jurisprudence, conclude that to determine whether an accomplice’s testimony may be inherently untrustworthy, court looks at factors such as these: (i) whether the witness is facing charges; (ii) whether the witness openly acknowledges participation in the crime; (iii) whether the witness has anything to gain or lose by testifying; (iv) whether the witness is testifying to deflect blame on another; (v) whether the witness is protecting another; (vi) whether there is some other reason why the witness would seek to blame another or minimize his or her own participation. [41] While the credibility of an impugned witness and the importance of that witness’s testimony to the Crown’s case are the main or prominent considerations, there may be other considerations that inform the trial judge’s assessment on this issue. Two such considerations of particular relevance to this appeal are the position taken by trial counsel with regard to the need for Vetrovec warning and the possibility of prejudice to the accused if warning is given in tandem with confirmatory evidence. Discussion of the first issue is dealt with below. With regard to the latter consideration, the Supreme Court of Canada highlighted this concern in Bevan: ... in some cases part or all of the supporting evidence may be extremely prejudicial to the accused, such that to draw the jury’s attention to that evidence in tandem with Vetrovec warning could in some circumstances be unfair to the accused. (613; see also Worm at para 29) [42] Whether Vetrovec warning should be given is matter of discretion. The trial judge is, after all, “an eyewitness to the testimony of the witness and the temperature of the trial proceedings” (Carroll at para 60) and therefore best positioned in the ebb and flow of the trial to assess and consider the “myriad factors that might impair the worth of witness’ testimony” (Carroll at para 65; Vetrovec at 823; Brooks at para 5). This dynamic was aptly captured in Bevan: ... Because the trial judge is in the best position to assess the atmosphere of the trial and the effect that the evidence or instruction may have on jury hearing the case, the trial judge’s decision on these kinds of issues should not be lightly interfered with on appeal.Finally, the exercise of trial judge’s discretion with regard to Vetrovec caution is subject to considerable appellate deference having particular regard to the unique and dynamic circumstances of the trial setting (Brooks at para 24; Bevan at 614; Carroll at para 67). An appellate court should not interfere with the trial judge’s decision if there is foundation for the trial judge’s exercise of discretion, and must refrain from imposing its view after-the-fact based on an “abstract category of witness without having heard the testimonies directly” (Brooks at para 4, 10). [43] discretionary decision warrants appellate intervention only “if the trial judge misdirects himself or if his decision is so clearly wrong as to amount to an injustice” (R Regan, 2002 SCC 12 (CanLII) at para 117, [2002] SCR 297; see also C.C.Y., 2001 SKCA 107 (CanLII), 213 Sask 120; Brooks at para 24; Richard (D.R.), 2013 MBCA 105 (CanLII) at para 85, 299 Man (2d) 1; Peekeekoot, 2014 SKCA 97 (CanLII) at para 93, 446 Sask 22). [44] Finally, as noted in Bevan, the exercise of trial judge’s discretion is subject to considerable appellate deference with particular regard to the unique and dynamic circumstances of the trial setting (Brooks at para 24; Bevan at 614; Carroll at para 67). An appellate court should not interfere with trial judge’s decision on the Vetrovec warning if there is foundation for the trial judge’s exercise of discretion and must refrain from imposing its after-the-fact view based on an “abstract category of witness without having heard the testimonies directly” (Brooks at paras and 10). 2. Was Vetrovec warning “mandatory” in spite of the position taken by defence counsel at trial? [45] Mr. Smith argues the trial judge erred in law in failing to caution the jurors about the trustworthiness of both Ms. Saxon and Mr. Windrum in spite of strong opposition to Vetrovec warning voiced by Mr. Smith’s trial counsel at the time of the pre-charge conference. On appeal, his appellate counsel takes the position that Vetrovec warning was mandatory and that the trial judge was obliged to caution the jury about the untrustworthiness of Ms. Saxon and Mr. Windrum, regardless of the position taken by Mr. Smith’s counsel at the time of trial. [46] The trial judge gave no reasons for his decision not to give Vetrovec warning, however, based on the exchange that took place at the pre-charge conference, his decision appears to have been largely premised on defence counsel’s insistence that the warning not be given. The narrow question posed by Mr. Smith on this appeal, therefore, is whether it was an error of law on the part of the trial judge not to give warning regardless of the stance of trial counsel. [47] Discussion of this issue is necessarily framed by the exchange that took place between the trial judge and counsel for the Crown and defence at the time of the pre-charge conference. As mentioned, the trial judge had convened pre-charge conference on the record and in the absence of the jury towards the end of the trial to solicit input from counsel about the content of the jury charge. In the course of their discussion, Mr. Smith’s trial counsel identified the need for Vetrovec warning for both Ms. Saxon and Mr. Windrum. In relation to Mr. Windrum, he said it was needed because he had “an interest in [the outcome] because there are outstanding charges and it’s dangerous to convict on his evidence alone”. With respect to Ms. Saxon, he said “there’s potential of her being charged and therefore she has an interest in this case as well” (at T294). [48] The record demonstrates that the trial judge was alive to the jurisprudence in relation to when Vetrovec warning is called for. He knew the law had evolved from rigid, categorical approach toward more organic examination of the evidence and search for indicia that might suggest witness to be untrustworthy. [49] After identifying the analytical framework, the trial judge initially appeared resolved to warning the jurors about the trustworthiness of Ms. Saxon’s evidence, but found warning unnecessary for Mr. Windrum. On this point, he said to counsel: In doing that, also know that the present stated law, as understand it, is it’s kind of combination of two things working like two pistons or maybe container of two fluids in it. It seems to me that when there is these elements of untrustworthiness and maybe they’re not so pronounced in this case, or maybe they are, but it all becomes more necessary for Vetrovec caution when her evidence, or that witness’ evidence, is very significant in regards to the Crown’s proof of guilt. And so if you get that, one piston goes up and one down, so it kind of combines, as understand it, in some sort of loose fashion that tells the trial judge after thinking of it all, well, maybe the jury, that we give these standard almost boilerplate instructions to jurors about credibility and one person saying this and the other, don’t know whether this needs the as sharp review, or whatever the word would be, regarding her evidence and would be prepared to say something along the lines to the jury that, here’s Ms. Saxon, this is what we heard about her, it will be for you to decide these things, but have to caution you that it may be unsafe to accept her evidence. And then have to find the some if there’s some confirming evidence, come up through the bottom of the confirming evidence. That sometimes puts spotlight on her evidence. It certainly sometimes puts spotlight on the confirming evidence because it comes out of my mouth, but that’s what we have to do. And the confirming evidence for Ms. Saxon would be Dwight Windrum. That’s done. And I’ve figured that out and think would want to do that. think the jury has to be told about that. I’ll take that the other way, and then I’ll hear from counsel, if I’m going to say the same thing about Mr. Windrum, would have to say that the confirming evidence of Mr. Windrum would be Ms. Saxon. And wonder if that isn’t starting to be sort of circular counterproductive argument. (T296–297, emphasis added) [50] Following discussion with counsel about what the content of such warning would contain for Ms. Saxon, the trial judge raised the spectre of confirmatory evidence. The Crown eagerly responded with detailed inventory of the evidence it perceived to be confirmatory in nature and supportive of Ms. Saxon’s and Mr. Windrum’s testimony. The Crown summed up its position in this fashion: So there there’s significant amount of corroborating evidence if you if you’re going to do Vetrovec warning, then would argue that, you know, it needs to be on the lighter end, if can put it that way. Very much lighter, in fact almost not there lighter. And I’m trying to be but but it also needs to be balanced off heavily with the supporting evidence, because there is mountain of supporting evidence here that supports what Susan Saxon said. (T300, emphasis added) [51] The following discussion then ensued between the trial judge and both counsel, which culminated in defence counsel withdrawing his request for Vetrovec caution: THE COURT: And some of the cases actually suggest that sometimes defence counsel doesn’t want the Vetrovec warning given for that very reason. Is that it comes out of my mouth, here is this evidence, da-da-da-da, and sort of showcase it. MR. HEALEY: Well, and think but it’s only right if if we’re going to have Vetrovec THE COURT: Well, know MR. HEALEY: it then we need to at least have have the truth about sorry, the other corroborating evidence come out and all of it, not just hit and miss because because there is significant level of corroborating evidence supporting Susan Saxon. And and frankly, Dwight Windrum. THE COURT: Okay. MR. HEALEY: Those are my MR. BODNAR: I’ll solve the problem for the Crown. I’ll withdraw my application on Vetrovec, but W.D. has to go to the jury. THE COURT: Well, know W.D., but what did you just say, that MR. BODNAR: I’ll withdraw my application to put Vetrovec to the jury. THE COURT: Well, you know, was reading and appreciate your heads-up, Mr. Bodnar, you were kind enough and professional enough as you always are, to tell me of the (INDISCERNIBLE) that Vetrovec made, so don’t want to sound like smarty-pants ‘cause have spent number of hours reading the whole area. And did run across some talk that, boy, you know MR. BODNAR: Mmhmm. Including Hurley. THE COURT: I’m sorry? MR. BODNAR: Including Hurley. THE COURT: You know, at the end of the day, it there is some talk out there that Vetrovec is two-edged sword; isn’t it? But don’t know if you can withdraw. The cases the appellant courts are not that clear as to whether cannot put it [to] them if thought that there MR. BODNAR: Well, if withdraw it, then the if there was unfortunately conviction, then we can’t argue it on appeal. THE COURT: All right. Well MR. BODNAR: So it goes that way. think if you look at Hurley, and I’m sure you have, that’s the decision that came out of Court of Appeal, H-U-R-L-E-Y, and on Vetrovec and can tell you know it because argued it and the decision came down against the Crown, which the Crown appealed to the Supreme Court. And the appeal was and the Crown appeal was dismissed on other grounds. They didn’t they didn’t deal with Vetrovec at that point, but it was on fresh evidence that they would not reinstate the conviction. It went back to re-trial in which Mr. Hurley was acquitted. Now, the Court of Appeal and that was Chief Justice Richards, wrote the decision. believe it was the Chief Justice. And suggest he has dealt with it and that’s the most recent decision in Saskatchewan on Vetrovec. And you don’t have to put it. And in that case Vetrovec, in fact, was overlooked by counsel, believe, at the trial. It’s not that they agreed that it shouldn’t be put, they just kind of overlooked it. THE COURT: So just so the record is clear on this, the defence has said to the Court that you would not want Vetrovec to be given charge to be given to the jury? MR. BODNAR: shouldn’t have raised it. No, don’t put it to the jury. THE COURT: All right. Well MR. BODNAR: But have another matter to raise yet after this. THE COURT: Yes, we’ll just finish this. Is the Crown satisfied that if the defence says don’t do that, then that’s something that an appellant [sic] court would not be concerned about? ‘Cause as said, it’s double edged sword here, it’s my understanding is. MR. HEALEY: It is. To be honest, I’d never turned my mind to the fact that Mr. Bodnar might not ask for it. am prepared leave that with the Court, haven’t actually thought about that issue. And my suspicion here, my my expectation is that if Mr. Bodnar is not asking for it, don’t see how it can be raised on appeal. THE COURT: Well, we don’t need to worry too much about the Court of Appeal, we need to worry about here and now. That’s the concern have, particularly in this case when we have two diametric points of view as to what happened. And here am you know, I’m saying, well, you’ve got to be careful about this witness. and then say, but bang, bang, bang, bang. And quite frankly think that just puts the spotlight sometimes on MR. BODNAR: It does sometimes. (T300–303, emphasis added) [52] As is apparent from this exchange, the trial judge was left with the unmistakable and unambiguous position of defence counsel in relation to Vetrovec warning: he no longer wanted it in relation to either Crown witness. Although defence counsel did not explain why he had changed his mind (and he was not required to do so), it can be reasonably inferred from the evolving nature of their discussion that he had hoped the warning would not be accompanied by summary of the Crown’s confirmatory evidence. The inescapable inference to be drawn here is that Mr. Smith’s trial counsel, who was both an experienced and competent criminal defence lawyer, made strategic and tactical decision designed to further his client’s defence. [53] Counsel’s position with respect to the Vetrovec warning is relevant and merits significant consideration where it appears to have been based on tactical decision. As the Supreme Court said in Brooks: [19] In my view, the defence had clear tactical advantage in not requesting Vetrovec warning in this case. To hold that the Vetrovec warning is mandatory in such circumstances would deny future counsel this tactical decision. As professed by the Ontario Court of Appeal in R. v. Gravino, [1995] O.J. No. 3109 (QL), at para.10: The fact that very experienced and competent counsel at trial ... neither asked for Vetrovec caution nor objected when one was not given must be taken to reflect the atmosphere at the trial that Ireland’s evidence had been subjected to very careful scrutiny. In these circumstances we are unable to conclude that it was an error on the part of the trial judge to decline to give Vetrovec caution. (Emphasis added) [54] While trial counsel’s position is not determinative of whether Vetrovec warning should be given, “it is nevertheless relevant and worthy of greater consideration where circumstances point to the fact that there may be tactical reasons for not requesting warning” (Brooks at para 18). [55] The trial judge quite properly alerted counsel to the fact that Vetrovec warning would be accompanied by items of confirmatory evidence. As pointed out in Bevan and Worm, Vetrovec warning may, on balance, be more prejudicial to an accused because it draws the jury’s attention to the Crown’s confirmatory evidence. The trial judge was alive to the possibility of indirect prejudice to Mr. Smith and was concerned that instructions containing confirmatory evidence could be perceived by the jurors as “showcasing” critical Crown evidence. [56] Mr. Smith’s argument must also be assessed from the perspective of recent jurisprudence as to whether Vetrovec warning is mandatory irrespective of the position of defence counsel at trial. [57] For the purposes of assessing this argument, must assume that the trial judge had been persuaded that Vetrovec warning with respect to both witnesses was advisable in this case, based on the submissions made to him. [58] similar argument to the one advanced by Mr. Smith in this appeal was raised in Rafferty, 2016 ONCA 816 (CanLII), 33 CR (7th) 39 [Rafferty]. The trial judge had acceded to the defence counsel’s (described as “experienced and highly skilled”) request to refrain from giving Vetrovec warning. The trial judge initially intended to include warning, but ultimately decided against the caution based on the specific request of the appellant’s trial counsel. On appeal, it was argued that the warning was mandatory regardless of the position taken by the parties. Justice Huscroft dismissed this argument, stating: [29] Plainly, counsel’s request was made in order to avoid the recitation of any of the substantial body of confirmatory evidence that would have had to accompany the Vetrovec warning. The trial judge understood that the request was made for tactical reasons, and having reviewed the law he decided that he should accede to counsel’s request and omit the Vetrovec warning. His decision to do so cannot now be impugned. [30] The appellant submits that responsibility to give Vetrovec warning lies with the trial judge regardless of the position of the parties, and so it does. However, the decision to give the warning is discretionary in nature, as is the content of the warning itself, and a trial judge’s exercise of this discretion is entitled to deference: R. v. Brooks, 2000 SCC 11 (CanLII), [2000] S.C.R. 237, at paras. and 18; R. v. A.W.B., 2015 ONCA 185 (CanLII), [2015] O.J. No. 1407, at para. 40. [59] The deferential approach taken in Rafferty was subsequently adopted in Moore, 2017 ONCA 947 (CanLII) [Moore]. In Moore, the accused was convicted of second degree murder committed in the course of robbery. The accused’s accomplice pled guilty to manslaughter before Moore’s trial and then testified against him. The accomplice was described as “an unsavoury witness by any definition” (at para 16). He had criminal record and had lied to the police during the course of their investigation. In addition to the testimony of the accomplice, there was substantial amount of confirmatory evidence led at trial. [60] During the course of pre-charge conference, the trial judge provided trial counsel with draft charge that included Vetrovec warning. The warning was subsequently removed on the insistence of defence counsel when it became apparent to her that it would be accompanied by some confirmatory evidence. One of the grounds of appeal advanced by Moore’s appellate counsel (who was different from his trial counsel) was that Vetrovec warning should have been given with respect to the accomplice’s evidence. In dismissing this ground, Trotter J.A. placed considerable significance on the position taken by defence counsel at trial: [21] In considering whether Vetrovec caution is required, the absence of an objection to the charge that does not contain one leads to an inference that the approach employed by the trial judge was appropriate from the perspective of the accused. In R. v. Boone, 2016 ONCA 227 (CanLII), 347 O.A.C. 250, leave to appeal refused, [2016] S.C.C.A. 238, Sharpe J.A. said the following, at para. 53: In his charge, the trial judge canvassed with the jury the basis for the attack on the credibility of the complainants. The trial judge held pre-charge conference to afford counsel the opportunity to comment on his proposed charge. The appellant’s trial counsel did not object to the manner in which the trial judge proposed to deal with the evidence of the complainants nor did he request Vetrovec warning. Although not fatal on its own, the absence of any objection leads to an inference that the language employed by the trial judge was appropriate from the perspective of the accused. [Citations omitted; emphasis added.] [22] This principle must apply with at least equal vigour when defence counsel requests, ahead of time, that Vetrovec caution not be given for tactical reasons namely, to prevent the recitation of evidence that confirms the evidence of the Vetrovec witness: see R. v. Moffit, 2015 ONCA 412 (CanLII), 338 O.A.C. 144, leave to appeal refused, [2015] S.C.C.A. No. 465, at para. 78; and R. v. Brooks, 2000 SCC 11 (CanLII), [2000] S.C.R. 237, at para. 17. [26] Clearly, Vetrovec warning could have been given in this case. However, the decision whether to give one is discretionary. Although there will be cases in which this discretion can only be properly exercised in favour of giving such an instruction, those cases do not turn the issue into question of law. Hence, it cannot be said that defence counsel at trial was “wrong”, as appellate counsel asserts. [27] The jury was repeatedly alerted to the many problems with the credibility of Thomas and Burdett. The defence position that these witnesses could not be believed was emphatically stated in counsel’s closing address. The trial judge thoroughly outlined the shortcomings in their evidence in his final instructions. And while there was no “clear and explicit” caution (see R. v. Sauvé (2004), 2004 CanLII 9054 (ON CA), 182 C.C.C. (3d) 321(Ont. C.A.), at para. 210) about the dangers inherent in relying on this evidence, nor was there any formal review of the confirmatory evidence. (Emphasis in original) [61] The issue raised by Mr. Smith strongly mirrors the situation in both Rafferty and Moore. As mentioned above, although Mr. Smith’s trial counsel did not explain why he had changed his mind with regard to his desire for Vetrovec warning, it can be reasonably inferred from the exchange that took place between the trial judge and both counsel that Mr. Smith’s counsel wanted to avoid having the trial judge repeat the Crown’s confirmatory (no doubt inculpatory) evidence and, as the trial judge put it, “showcase” it to the jury. Viewed in this light, it is hard to see this as anything other than tactical decision made by Mr. Smith’s defence counsel, which warranted degree of deference by the trial judge. [62] While it is correct to say that the position taken by defence counsel is not determinative and that the decision to give Vetrovec warning rests with the trial judge, that decision is discretionary in nature and ought not be interfered with unless the trial judge misdirected himself or if his or her decision is so clearly wrong as to amount to an injustice. am satisfied from the record that the trial judge understood the law, understood the position of defence counsel, and had clear foundational basis for not giving warning in this case. [63] My conclusion on this point is not undermined by the fact appellate counsel is not the same counsel as Mr. Smith’s trial counsel. Where appellate counsel seeks to challenge decision made by trial judge, which in large measure was predicated on position taken by trial counsel, considerable deference is warranted (Moore at para 15; Kimberley (2001), 2001 CanLII 24120 (ON CA), 157 CCC (3d) 129 (Ont CA)). 3. The credibility and importance of the impugned witnesses [64] Mr. Smith seeks to bolster his primary ground of appeal with the argument that, had the trial judge properly applied the twin considerations of importance to the Crown’s case and credibility, the need for Vetrovec warning would have been obvious. Mr. Smith contends Ms. Saxon was an “unsavoury witness” because her evidence was proffered for an ulterior motive, that is, to divert suspicion or blame from her, gain advantage such as immunity from prosecution for the current offence, or gain advantage or concessions for other offences. With regard to Mr. Windrum, he argues that, because he was charged with offences arising from his role in this matter, he may have given favourable testimony for the Crown in exchange for beneficial treatment on his charges. [65] am satisfied that, had the trial judge filtered the need for Vetrovec warning through considerations of credibility and importance, it cannot be said that the circumstances required Vetrovec warning for either witness. a. Importance of the testimony to the Crown’s case [66] Both parties agree that the testimony of Ms. Saxon and Mr. Windrum was pivotal to the Crown’s case. The trial transcript amply supports their position on this point. [67] Ms. Saxon’s testimony was the Crown’s only direct evidence connecting Mr. Smith to the murder and, apart from Mr. Smith’s confession to Mr. Windrum, the balance of the Crown’s case consisted of circumstantial evidence. Although the circumstantial evidence supported the Crown’s theory and Ms. Saxon’s version of events, without her testimony the Crown had, at best, weak case. [68] Unquestionably, Mr. Windrum’s testimony is also key component of the Crown’s case. Furthermore, the importance of his testimony lies in its corroborative value in relation to Ms. Saxon’s evidence. Although Mr. Windrum could not recall the exact date when he gave Mr. Smith the guns, his evidence about the timing of events and number of guns generally aligned with Ms. Saxon’s evidence. His evidence about the confession and the Glock handgun also lined up with her version of events. b. The credibility of the witnesses [69] Ms. Saxon never independently went to the police and she lied to them on two separate occasions. According to Mr. Smith, Ms. Saxon’s credibility and motive to lie was on full display in her second police interview. She began the interview by once again denying any knowledge of Mr. Byer’s death or her involvement in it. As the interview proceeded, Ms. Saxon admitted that she harbored concern over the prospect of being charged with criminal offence and going to jail for many years if convicted. She bluntly asked the police if she was going to be charged and candidly told them that she did not want to go to jail. Ultimately, Ms. Saxon admitted that she assisted Mr. Smith in taking the money, obstructed and had lied to the police after the fact, and to being an accessory after the fact. [70] An assessment of Ms. Saxon’s credibility must begin with the observation that she was not “classic” Vetrovec witness. She had no prior criminal record. There was no evidence she was person of bad repute or had reputation for being untruthful, apart from the fact she had twice lied to the police about whether she knew anything about Mr. Byer’s death. She was not jail house informant. [71] That said, given the possibility of criminal prosecution for her admitted role in Mr. Byer’s murder (i.e., she “assisted” Mr. Smith with Mr. Byer’s murder and its cover up), the trial judge ought to have been concerned about whether Ms. Saxon had motive to lie and, more particularly, the possibility that she may have sought to minimize her role in Mr. Byer’s murder or to point the finger of blame away from herself and directly at Mr. Smith. [72] Ms. Saxon’s possible motive to lie and her initial deception with the police was the likely reason why the trial judge raised the prospect of Vetrovec warning at the start of the pre-charge conference. Ms. Saxon faced potential jeopardy for her part in Mr. Byer’s murder, therefore it was possible her testimony could have been quid pro quo, i.e., favourable testimony in exchange for no charges being laid against her. [73] Ms. Saxon was aggressively cross-examined by defence counsel about why she had lied to the police. It was put to her that she had given favourable Crown testimony in Mr. Smith’s trial in exchange for immunity from prosecution or that she conjured up story implicating Mr. Smith because she felt somehow threatened by the police. The following exchange in cross-examination canvassed these possibilities: And you again denied that you knew anything about this incident? At the beginning of the interview, yes. But then the police were assuring you that you’re going to be just fine, you’re going to be secure because Dan will go to jail for many years; correct? No, they didn’t say that. They just instilled confidence in me that would be protected. Well, that’s what mean, they instilled confidence in you that you would be protected? Yes. And they also let you know that that instilled confidence would exist because Dan would be put away for good; correct? Well, if he was found if they arrested him and found yeah, they would arrest him, yeah. And also they let it be known because believe me, I’ve read that statement, that if you didn’t talk to them that you would be charged? didn’t get that feeling from that interview at all, no. You didn’t get that feeling at all? No. You didn’t let me just fish it out. You indicate just at the beginning of the first interview on the May 20th, that you didn’t know what happened to Roger Byer? Right. And the police officer says to you: Perhaps you have some sort of involvement in Roger Byer’s murder. We’ve done our homework. Do you remember him telling you that? Yeah. There’s an implied little bit of threat there that you better talk to us and tell us, otherwise we’re charging you with murder? No, didn’t feel threatened by the police at all. You never took it that way? No. And you immediately said, “I’m terrified”? was terrified, was terrified for four years to come forward with this information. Yeah, but you were terrified because you were terrified of being charged with the murder No. of Roger Byers (sic), an accessory? Yes, was always terrified of that, but didn’t tell them the truth at that point because was scared that if didn’t was going to be arrested. But you knew that if you were charged as an accessory and convicted, that you’d be gone to jail for many years and away from your family? Yes, guess did know that, but I’m also under the belief that they would have to have some kind of proof that was involved in order to charge me. And wasn’t involved and didn’t do anything. So logically Well shouldn’t have been ever worried about that at all. That’s your version of the facts and that’s what you’ve told us today. Yes. We’ll get into more of those facts. Okay. Do you remember at and I’ll look at this, for the Crown’s information, it’s page 38. Do you remember telling the police: And you guys are assuming was there. Am going to be charged too? Do you remember telling the police? remember asking that question, yeah. These were fears that I’d had for years that were coming out then. And at page 39 the police officer says: Well, don’t mean to scare you. And then two pages later you said: don’t want to go to jail. Do you remember that? Sure. In other words, those 75 pages that you of transcript that you spent in that first interview on May 20th, 2014, you were being softened up to give the second statement that day; weren’t you? wouldn’t say was being softened up. was at point that was ready to tell about it. had always wanted to tell about it. would have liked to have told about it the day after, but was terrified of Dan, was terrified of consequences, was terrified of something happening to my kids, to myself, of being assumed because was there that was involved and that was going to be implicated and was going to go to jail. Yes, was terrified for long time. And always wanted to tell. [74] Ms. Saxon did not waver from her testimony given in examination-in-chief in spite of the probing and, at times, suggestive cross-examination by defence counsel. In the end, there was no evidence Ms. Saxon was ever charged with an offence relating to Mr. Byer’s murder or its cover up. She was never taken into custody. There was no evidence she acted as Crown witness in exchange for immunity from prosecution. Moreover, she did not minimize her presence at the murder scene or her role in anyway. If anything, Ms. Saxon’s frank acknowledgment of her role in the murder (retrieving the money and handling the bloody gun) and in its cover up arguably placed her in greater jeopardy than had she not testified. [75] Equally important to this analysis is the fact Ms. Saxon testified in the presence of the jury. Her credibility was on full display before the jury. The jurors were positioned to assess whether she was credible witness having regard to the dynamic in the courtroom at the time and the way she handled herself as witness, with particular regard to her candor and demeanor under cross-examination. More importantly, through her testimony, both in chief and under cross-examination, the jurors were alerted to the fact that she: (i) had twice lied to the police; (ii) had some involvement in Mr. Byer’s murder and in its cover up; and (iii) had harboured concern that she could be charged with criminal offence for her role in his death. [76] In light of all of this, it is clear the trial judge did not lose sight of the rationale underpinning the need for Vetrovec warning. Its purpose is to alert lay jurors to the danger of relying on the unsupported evidence of an unsavoury witness “that the jury might not otherwise appreciate” (Worm at para 36) and to explain the reasons for the need for special scrutiny. This point was also explained in Carroll: [78] The rationale that underpins Vetrovec caution originates in the concern that, for certain types of witnesses, lay members of the jury simply lack the critical experience to adequately gauge the credibility of these types of witnesses and the reliability of their evidence: R. v. Sauvé (2004), 2004 CanLII 9054 (ON CA), 182 C.C.C. (3d) 321 (Ont. C.A.), at para. 81; R. v. Welsh, 2013 ONCA 190 (CanLII), 115 O.R. (3d) 81, leave to appeal to S.C.C. refused, (#35533, December 12, 2013), at para. 207. No such concerns emerged in connection with the testimony of Kim Moncion. To conclude in the circumstances of this case that Vetrovec caution was mandatory for the evidence of Kim Moncion would be to countenance resurrection of the ossified rule interred over three decades ago by Vetrovec. [77] In any event, the mere fact Ms. Saxon may have been motivated to lie to avoid prosecution in relation to her involvement in this offence does not mandate Vetrovec warning on its own. This point was emphasized by Watt J.A. in Carroll: [66] In addition, consistent with the flexibility that is the badge of Vetrovec, the fact that witness seeks to avoid incarceration and would add, prosecution by testifying is factor which may undermine credibility but, on its own, is not enough to require Vetrovec caution: Brooks, at para. 10. [78] Mr. Smith contends the truthfulness of Ms. Saxon’s testimony was questionable because she had continued to live with him for four years after the murder, but only opened up to the police after they had separated. Ms. Saxon was extensively cross-examined by defence counsel on these matters. Mr. Smith’s argument does not enhance the notion that Ms. Saxon was an unsavoury witness. Instead, as it should, the need for Vetrovec caution boiled down to the larger question of her credibility, which, as discussed, factored significantly into the jury instruction. Moreover, the jury had every opportunity to observe Ms. Saxon on the witness stand and were equipped to assess whether her failed relationship with Mr. Smith was reason for her to be untruthful. [79] Furthermore, even if warning had been given, am satisfied that Ms. Saxon’s testimony was corroborated by the testimony of Mr. Windrum and some of the other circumstantial evidence. Mr. Windrum testified that he had given Mr. Smith two handguns, one of which was the .40 calibre Glock. He also testified that Mr. Smith returned the handguns to him several days later and had told him that after Mr. Byer “racked” the .22 calibre gun at him, he returned fire. According to Mr. Windrum, Mr. Smith then said to him “I think he’s dead, yes, shot at him three times” (at T226). Much of Mr. Windrum’s evidence aligns with Ms. Saxon’s testimony, notably the timelines and the two guns that had been produced by Mr. Smith when they first arrived at the abandoned farmyard. Significantly, there was no evidence of any collusion between Ms. Saxon and Mr. Windrum. [80] Ms. Saxon’s credibility is further enhanced by the other circumstantial evidence, notably the location of the shell casings in relation to the body of the deceased, the fact the shell casings came from the .40 calibre Glock handgun seized from Mr. Windrum, and that the trajectory of the fatal shot corresponded more closely with Ms. Saxon’s evidence as opposed to Mr. Smith’s, who said that she had shot at Mr. Byer from the front of the truck. [81] Viewed as whole, the relevant factors concerning Ms. Saxon in this case did not make her an inherently untrustworthy witness, nor was her testimony of the sort that cried out for special caution to the jury, but more importantly, nor was it the case that the jury would have been unable to assess whether they believed her version of events on the day in question. [82] Concern about Mr. Windrum’s trustworthiness was even less pronounced than was the case for Ms. Saxon. Nonetheless, Mr. Smith argues that caution was warranted for the simple reason that Mr. Windrum was charged with being an accessory after the fact to the murder and to obstruction. (The exact nature of his charges was not disclosed to the jury and has only come to light through Mr. Smith’s factum.) Because of these charges, Mr. Smith argues Mr. Windrum had an interest in the outcome of Mr. Smith’s trial or, as Mr. Smith’s trial counsel put it, he was akin to “jail house” informant. [83] There are at least three reasons why Mr. Smith’s argument cannot succeed. First, Mr. Smith’s categorical approach to Mr. Windrum is inconsistent with contemporary jurisprudence insofar as Vetrovec warning is no longer automatic simply because the witness fits the mold of certain category or type of witness or because of his or her relationship to the accused. Second, Mr. Windrum did not deny his part in Mr. Byer’s murder. Indeed, he candidly admitted under oath that he had changed the barrel of the .40 calibre Glock handgun at Mr. Smith’s insistence. Thus, Mr. Windrum’s culpability in helping to destroy evidence was, practically speaking, the same regardless of whether Mr. Smith was convicted or not. In this important respect, the outcome of Mr. Smith’s trial made no difference to the jeopardy faced by Mr. Windrum. Third, while Mr. Windrum was charged with several offences arising from this incident, there was no evidence that he had acted as witness for the Crown in exchange for favourable treatment on those charges. [84] In the absence of any other compelling factor, there was no obvious basis for the trial judge to have cautioned the jury about the trustworthiness of Mr. Windrum’s evidence. 4. Instructions to the jury [85] In his oral argument, Mr. Smith painstakingly went through what he characterized as inconsistencies between Ms. Saxon’s evidence and the balance of the trial evidence. He argued that, viewed in light of the various evidentiary inconsistencies, Ms. Saxon had “severe credibility problems” that the trial judge was obliged to point out to the jury by way of Vetrovec warning. [86] With respect, Mr. Smith appears to have confused credibility in Vetrovec sense (i.e., is the witness for some reason unsavoury) with broader notions about the credibility and reliability of witness (i.e., the weight and importance to attach to witness’s testimony). [87] It is readily apparent from the record that the trial judge understood that credibility was the central issue for the jury to resolve. To that end, the trial judge began his remarks with generalized instruction about credibility and provided the jury with guidance on how to assess the truthfulness and reliability of witness’s testimony. He then fairly summarized the evidence of each witness for the benefit of the jury. [88] With regard to Ms. Saxon’s evidence, the trial judge drew particular attention to several pieces of evidence that could have undermined her believability, namely: (a) she never initiated contact with the police; (b) when she was contacted by the police, she lied; (c) the reasons she gave for lying to the police, leaving it open to the jury to determine if they believed her; and (d) minor discrepancies in her evidence. [89] The trial judge put Ms. Saxon’s credibility squarely to the jury and left it with them to decide if the weaknesses in her testimony that he had drawn to their attention impaired their assessment of her credibility. He summarized this point for the jurors: In short, her evidence is that Mr. Smith caused the death of Roger Byer. It is for you to evaluate her evidence, including her involvement with the police and her explanation for not telling the police the truth initially and what effect, if any, that has on your assessment of her credibility. [90] With respect to Mr. Windrum, the trial judge carefully recounted his evidence and identified for the jury’s benefit his lack of co-operation with the police and subsequent arrest. [91] The trial judge then turned to Mr. Smith’s evidence and, in similar fashion, fairly outlined Mr. Smith’s version of events for the jurors. [92] Finally, in his charge to the jury, the trial judge underscored the “reasonable doubt” standard of proof and reinforced the bedrock principle that the Crown bore the onus of meeting that standard. He instructed the jury on the W.(D.), 1991 CanLII 93 (SCC), [1991] SCR 742 [W.(D.)], framework and how to approach Mr. Smith’s evidence, and gave them ample instruction on what reasonable doubt means and how it should be applied. With regard to the conflicting evidence, the trial judge cautioned the jury not to simply choose one witness over the other, but to consider the evidence as whole. He concluded his charge with summary of the defence position: “The defence submits that Ms. Saxon and Mr. Windrum should not be believed. Defence counsel asserts Mr. Smith is credible and did not do it” (at T377). [93] Mr. Smith’s trial counsel was given an opportunity to comment on the jury charge after it had been delivered. He offered no objection. [94] In my view, the jurors would have had little difficulty assessing the weight and importance to attach to the testimony of either Ms. Saxon or Mr. Windrum. The trial judge pointed out that both Mr. Windrum and Ms. Saxon had lied to the police and then carefully explained to the jurors the witnesses’ explanation for doing so. considerable amount of generalized instruction was devoted to the issue of credibility and to the principles of W.(D.). He told the jury that it was for them to decide if they believed the witnesses. He instructed them to consider all of the evidence presented at trial with an open mind and to decide how much or how little of the testimony of each witness they believed. Finally, they were reminded that it was open to them to believe some, none, or all of witness’s testimony. Furthermore, the trial judge fairly and accurately set out Mr. Smith’s evidence and his theory of defence, which pinned the shooting on Ms. Saxon. [95] In light of all of this, the trial judge had, in my view, adequately instructed the jury that the case was about credibility based on the two different versions of what happened on January 20, 2010. Given all this, the jurors were adequately positioned to fairly analyze the evidence and assess the testimony of the Crown’s witnesses in light of the evidence as whole and, as such, any concern about the conflicting testimony was sufficiently brought to light in the jury charge. B. Should the curative proviso in s. 686(1)(b)(iii) be applied? [96] find it unnecessary to address this issue since have concluded that the trial judge did not err in refraining from including Vetrovec warning in his jury charge. In any event, had found otherwise, am persuaded by the Crown’s argument that the trial judge adequately brought the witnesses’ credibility concerns to the attention of the jury such that the verdict would have been the same had the Vetrovec warning been given. V. CONCLUSION [97] In conclusion, am satisfied the trial judge was operating under correct understanding of the law. He took a measured approach with regard to the need for a Vetrovec warning in the circumstances and he carefully solicited input from both Crown and defence counsel. I am also satisfied that, in exercising his discretion not to give a Vetrovec warning, he was particularly alert to the position advanced by defence counsel, which he clearly understood to be a tactical choice. He was cognizant that highlighting corroborative evidence in the jury charge could be potentially prejudicial to the accused. [98] The trial judge’s decision as to the Vectrovec warning is discretionary in nature and entitled to appellate deference. It only warrants appellate intervention if the trial judge misdirected himself, or if his decision was so clearly wrong so as to amount to an injustice. Taken as whole, am satisfied that the trial judge properly instructed himself and that there was clear foundation for how he exercised his discretion. [99] The appeal must, therefore, be dismissed. “Schwann J.A.” Schwann J.A. concur. “Caldwell J.A.” for Jackson J.A., per authorisation concur. “Caldwell J.A.” Caldwell J.A.

Criminal Law – Murder – Second Degree Murder – Conviction – AppealEvidence – Unsavoury Witnesses – Vetrovec Warning – Charge to Jury The appellant had been found guilty of second degree murder following a trial before a judge and jury. He appealed on the ground that the trial judge had failed to give the jury a Vetrovec warning regarding the testimony of his former common law spouse (S.S.) and a witness who had been his friend (W.D.) who was the source of the gun used in the shooting of the victim. The appellant’s trial counsel had initially identified the need for the judge to issue the warning because W.D. had an interest in the outcome because there were outstanding charges against him and because there was the potential that S.S.would be charged too, she would also have an interest in the case as well. During the pre-charge conference with defence counsel and the Crown, the trial judge noted that in giving the warning to the jury he would also have to convey a summary of the Crown’s confirmatory evidence. The defence counsel then withdrew his application. The victim had been a friend of the appellant. According to S.S.’s testimony, the appellant and the victim had pre-arranged a meeting in an abandoned farmyard. The victim worked as an automated teller machine (ATM) technician and as part of his job, he travelled between ATMs carrying cash. S.S. did not see what happened between the two men but heard two gunshots and then saw the appellant and the victim point guns at each other. She saw the victim on his knees pleading with the appellant and offering money in exchange for his life. The appellant instructed her to collect the money and the victim’s cellphone and place them in his truck and while she was doing so, she heard another gunshot and saw the victim lying face down and the appellant standing over him holding a gun. As she and the appellant left the scene, the appellant gave her the victim’s gun. The appellant hid the other guns and the money at another farm site and then dumped the victim’s cellphone and ammunition in a farm field. Apart from the handguns, none of the other items were ever recovered. The witness remained in a relationship with the appellant for another four years following the crime until November 2013. She was contacted by the police in February 2013 and denied any knowledge of the incident. At trial, S.S. testified that she was afraid of the appellant and he had warned her that as an accomplice, she was as involved as he was. When the RCMP contacted her again in May 2014, she again denied any knowledge but then told the officer what she knew because she felt safer and would receive protection from the appellant. S.S. did not have a criminal record, nor was she charged with any offence arising from this incident. The appellant testified that during the meeting in the farmyard, the victim produced two handguns and they began to test fire the weapons. The victim suggested that they stage a fake robbery. The appellant would rough up his friend and then take the cash from his truck. The victim became quite aggressive after the appellant hit him too hard and began chasing him with one of his guns. S.S. then took one of the guns and shot the victim three times. She took $23,000 in cash from his truck because she had financial problems. The testimony of W.D. was that the appellant had acquired two handguns, a Glock and a .22 calibre handgun, from him, ostensibly on behalf of another friend. Several days later, the appellant returned both handguns and reported that after his friend began to shoot at him with the .22 calibre, he had returned fired and shot him three times. On the appellant’s insistence, the witness changed the barrel of the Glock handgun several months later. The police arrested W.D. and charged him with unspecified offences arising from the incident. In the appellant’s version, he testified that the victim brought the guns to the meeting and assumed that he acquired them from W.D. He therefore returned them to W.D. after the incident and requested that he change the barrel on the Glock to protect W.D. HELD: The appeal was dismissed. The court found that the trial judge had not erred by not giving the Vetrovec warning. It was not mandatory for him to do so regardless of the position of the defence counsel. The judge was aware of the need for such a warning in the circumstances and after consulting with the Crown and the defence, he exercised his discretion to decide that he would not instruct the jury. The judge was aware that the defence counsel withdrew his application as a tactical decision to avoid having the judge repeat the Crown’s confirmatory evidence to the jury. The judge’s exercise of his discretion was entitled to deference.

7_2018skca42.txt

J. 2004 SKQB 417 A.D. 1997 No. 687 J.C.R IN THE QUEEN’S BENCH JUDICIAL CENTRE OF REGINA BETWEEN: BRENT GORDON MARZOLF and CATHY LYNN MARZOLF RESPONDENT R. Bradley Hunter for the Petitioner Marilyn L. Elliott for the Respondent JUDGMENT PRITCHARD J. October 21, 2004 [1] Each party has applied for a variation of the judgment granted by Madam Justice E.J. Gunn on April 30, 1999. The judgment incorporates the terms of an Interspousal Contract dated April 26, 1999 which provides for basic child support to be paid by Mr. Marzolf in the amount of $1,411.00 per month. The Interspousal Contract states that the specified child support is payable for the two children of the marriage and was calculated under the Guidelines based on Mr. Marzolf’s expected annual income of $110,000.00. [2] The parties separated in 1997 and shortly thereafter Mr. Marzolf moved to Calgary, Alberta. The 1999 judgment was registered in that province and through her Alberta solicitor, Ms. Marzolf commenced formal negotiations in November 2002 for retroactive upward variation of child support. Negotiations proceeded slowly and Mr. Marzolf ultimately countered with an application for variation to this court in March 2004. He seeks to have child support reduced for Kimberly born April 2, 1992 and entirely discontinued for Ashley born April 4, 1984. Mr. Marzolf acknowledges that he has unilaterally terminated support for Ashley on the basis that she is over 18 years of age and not in full time attendance at school. Ms. Marzolf has responded with her own application for variation to this court. She seeks an upward variation of ongoing child support for Kimberly on the basis that Mr. Marzolf’s income is significantly higher than $110,000.00. On the same basis she also seeks a retroactive variation of support paid for both girls. Variation of On-going Support for Kimberly [3] This matter is before the court largely because the parties cannot agree on the method of calculating Mr. Marzolf’s income for child support purposes. The parties agree that much of his income since separation has included significant amounts of non-recurring income in the form of capital gains, stock options and severance pay. Mr. Marzolf argues that these amounts should not be considered as part of his income for child support purposes. His argument rests solely on the fact that the amounts are non-recurring. In effect, he argues that this fact alone renders it unfair that they be included. [4] The relevant portions of the Guidelines provide: 16. Subject to sections 17 to 20, spouse’s annual income is determined using the sources of income set out under the heading “Total income” in the T1 General form issued by the Canada Customs and Revenue Agency and is adjusted in accordance with Schedule III. 17.(1) If the court is of the opinion that the determination of spouses’s annual income under section 16 would not be the fairest determination of that income, the court may have regard to the spouse’s income over the last three years and determine an amount that is fair and reasonable in light of any pattern of income, fluctuation in income or receipt of non-recurring amount during those years. (2) Where spouse has incurred non-recurring capital or business investment loss, the court may, if it is of the opinion that the determination of the spouse’s annual income under section 16 would not provide the fairest determination of the annual income, choose not to apply sections and of Schedule III, and adjust the amount of the loss, including related expenses and carrying charges and interest expenses, to arrive at such amount as the court considers appropriate. [5] For the most part and in accordance with s. 16 of the Guidelines, payor’s income for child support purposes is determined based on total income (adjusted in accordance with Schedule III) as shown on his or her income tax return. The court can deviate from this only if it is satisfied that such amount would not represent the fairest determination of income. Mr. Marzolf has provided no compelling reason to exclude any of his non-recurring income. To the contrary, this is the fairest way of proceeding. review of Mr. Marzolf’s income since separation discloses that non-recurring income can realistically be anticipated in the future as it has constituted significant portion of his income in four of the last five years. [6] Mr. Marzolf’s income has fluctuated quite dramatically in each of the five years during which he has paid child support. As his income for any given year cannot be accurately estimated in advance, the fairest method of determining the appropriate level of child support payable for the calendar year 2004 is by calculating it based on his income during the previous year. [7] Mr. Marzolf’s line 150 income on his 2003 income tax return was $199,922.00. This includes $114,454.00 of non-recurring capital gain income from the sale of shares in Poplar Hill Resources. It does not include the non-taxable portion of that capital gain in the same amount. Pursuant to Clause of Schedule III referred to in s. 16 of the Guidelines, this non-taxable amount is to be included as an adjustment to income. This results in Mr. Marzolf’s 2003 income for child support purposes being $314,376.00. However, in examining documents provided by Mr. Marzolf regarding his previous year’s income, it is apparent that he incurred net capital losses in 2002 of $65,424.00. As later explained, have imputed $150,000.00 of income to Mr. Marzolf for the year 2002 despite this net capital loss and his line 150 income being only $2,410.00. It is therefore reasonable that this capital loss be deducted from the non-taxable portion of the capital gain he realized in 2003. This results in only $49,030.00 of the non-taxable portion of the 2003 capital gain being added to income for total income of $248,952.00. [8] Based on the Guidelines and an annual income of $248,952.00 realized in the Province of Alberta, child support of $1,186.00 would be payable on the first $150,000.00 of income and a further amount of $742.00 would be payable on the balance for total child support of $1,928.00. [9] The court has discretion as to whether the Guideline amount or some other amount should be used to calculate child support on income in excess of $150,000.00. This discretion is to be exercised having regard to the “conditions, means, needs and other circumstances of the children who are entitled to support and the financial ability of each spouse to contribute to the support of the children”. [10] During the same year that Mr. Marzolf was enjoying income in excess of $248,000.00, Ms. Marzolf’s income for herself and the two children was only $24,345.25. It is self-evident that Mr. Marzolf has a substantially greater ability to provide financial support for Kimberly than does Ms. Marzolf. [11] Ms. Marzolf deposes that she has not had the resources to provide lifestyle for the children similar to the one they enjoyed prior to their parent’s separation. They have not been able to take vacations or participate in activities they might otherwise have chosen to experience. Approximately one year after the granting of the judgment sought to be varied Ms. Marzolf found she was unable to maintain the mortgage on her existing home which she sold and replaced with much smaller one acquired at purchase price of $70,000.00. Ms. Marzolf deposes that this new residence still requires lot of renovations and that it has been necessary for her to undertake many of them herself in order to save costs. [12] Although Mr. Marzolf’s income in 2003 was significantly higher than what he earned when the parties were together, it is apparent that since separation the children have not experienced the standard of living they enjoyed while the parties were together let alone what they could have experienced with reasonable percentage of their father’s significantly increased income. However, given the unpredictable, variable and to some degree speculative aspect of much of Mr. Marzolf’s post-separation income (including his 2003 income) it would be imprudent, even if the parties were together, to enhance Kimberley’s standard of living on the basis of child support calculated as percentage of all of her father’s 2003 income. Nevertheless, given Ms. Marzolf’s limited means, Kimberly does require significant support from her father just to raise her standard of living to level approaching what she might have expected if she were residing with him. In the circumstances, it is appropriate that one-half of the Guideline amount for Mr. Marzolf’s income in excess of $150,000.00 be payable as child support. Accordingly, effective January 1, 2004, Mr. Marzolf shall pay monthly child support for Kimberly of $1,557.00. Child Support for Ashley [13] Ashley was born April 4, 1984. She is currently 20 years of age and is no longer attending school. The parties agree that she is not now child within the meaning of the Divorce Act, R.S.C. 1985, c. (2nd Supp.). They disagree as to when this occurred. [14] Ashley did not complete grade 12 until June 2003. In the normal course, she would have graduated in June 2002 but she was short some classes. The required classes were not available in September 2002 so she did not return to school until the new semester in January 2003. Mr. Marzolf takes the position that no child support was payable between July 1, 2002 and December 31, 2002 when Ashley was over 18 years of age and not in full-time attendance at school. The applicable provisions of the Divorce Act and the Guidelines read: The Divorce Act: 5.2(1) “child of the marriage” means child of two spouses or former spouses who, at the material time, (a) is under the age of majority and who has not withdrawn from their charge, or (b) is the age of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life; The Guidelines: 5.3(2) Child the age of majority or over (2) Unless otherwise provided under these Guidelines, where child to whom child support order relates is the age of majority or over, the amount of the child support order is (1) the amount determined by applying these Guidelines as if the child were under the age of majority; or (2) if the court considers that approach to be inappropriate, the amount that it considers appropriate, having regard to the condition, means, needs and other circumstances of the child and the financial ability of each spouse to contribute to the support of the child. [15] It is not uncommon for class required for graduation to only be available in one semester of each school year. Although Ashley was not in full-time attendance in school during the last six months of 2002, she had not yet completed her basic education and had every intention of doing so. In these circumstances, she was not in a position to withdraw from her parents’ support. find that child support for Ashley was properly payable without interruption to June 30, 2003. Given Ashley’s limited ability to earn income during her short hiatus from school and considering the disparity in the ability of each of her parents to contribute to her support, it is appropriate that support for Ashley be the amount determined by applying the Guidelines as if she were a child under the age of majority. The calculation of that amount from January 1, 2000 to June 30, 2003 shall be based on the following determinations of Mr. Marzolf’s income for such periods. Retroactive Variation [16] The objectives of the Guidelines are set forth in s.1 which states: 1. The objectives of these Guidelines are (a) to establish fair standard of support for children that ensures that they continue to benefit from the financial means of both spouses after separation; (b) to reduce conflict and tension between spouses by making the calculation of child support orders more objective; (c) to improve the efficiency of the legal process by giving courts and spouses guidance in setting the levels of child support orders and encouraging settlement; and (d) to ensure consistent treatment of spouses and children who are in similar circumstances. These objectives can only be achieved if the parents promptly and candidly disclose the information necessary to allow proper calculations and adjustments to child support to be made. Section 25(1) of the Guidelines speaks to this requirement for ongoing financial information: 25.(1) Every spouse against whom child support order has been made must, on the written request of the other spouse or the order assignee, not more than once year after the making of the order and as long as the child is child within the meaning of these Guidelines, provide that other spouse or the order assignee with (a) the documents referred to in subsection 21(1) for any of the three most recent taxation years for which the spouse has not previously provided the documents; ... [17] In this case, written request by Ms. Marzolf for Mr. Marzolf to provide copies of his income tax returns is not required because the parties incorporated positive obligation to exchange tax returns in their Interspousal Contract. Clause of the Contract deals with child support. The final paragraph of clause states: Commencing in the year 2000, both Brent and Cathy shall provide the other with copy of their prior year’s income tax return on or before May 30th in each year and any notice of assessment or reassessment either receives. [18] Consistent with the objectives of the Guidelines and implicit in the above quoted provision of the Interspousal Contract the parties must have understood that Mr. Marzolf’s child support obligation could change if his income changed. And yet, Mr. Marzolf argues that he was under no obligation to provide financial information to Ms. Marzolf on an annual basis because firstly, she did not request it and secondly, because she did not provide him with her financial information. [19] This position is simply not tenable. The Guidelines are meant to ensure that children of separated parents “continue to benefit from the financial means of both spouses after separation”. Mr. Marzolf has deliberately defeated this purpose and thereby cheated his children from the substantial financial support he could have and should have been providing them. He was the only one that knew the extent of his increased income and pursuant to the Interspousal Contract, he had an obligation to inform Ms. Marzolf by providing her with copies of his tax returns. [20] Ms. Marzolf began the legal process of seeking variation of child support in November 2002. It is not surprising that she did not start sooner. As deposed to by her and as is clearly evident from her disclosed income, she did not have the financial means to formally pursue Mr. Marzolf for additional child support. But even more significantly, Mr. Marzolf approached her in March of 2001 seeking reduction in child support on the basis that he was unemployed. Incredibly, this request was made just months after Mr. Marzolf experienced his best financial year ever with line 150 income in 2000 of $345,432.00. Although when he made the request to reduce child support he may not have known how much income he would actually realize in the year 2001, as it turned out, he had an even better year then in 2000 with line 150 income in 2001 of $391,421.00. His levels of income in 2000 and 2001 are in stark contrast to Ms. Marzolf’s income in those years of $7,634.00 and $10,842.00 respectively. [21] have reviewed A.W. v. D.C., 2000 SKQB 495 (CanLII), and English v. English, 2002 SKQB 293 (CanLII), both of which deal with the circumstances in which it is appropriate for the court to award retroactive variation of child support. The considerations are enumerated in these judgments and need not be repeated here. Suffice it to say that this is clearly a case where a retroactive variation is warranted. [22] The Interspousal Contract and judgment are each dated April 1999. No variation can be considered for that year. As earlier stated, given the various sources of Mr. Marzolf’s income and the significant annual fluctuations in his income, it is appropriate to use his previous year’s income as the basis for calculation of child support payable in the subsequent year. In 1999, Mr. Marzolf’s line 150 income was $316,222.00. For the period January 1, 2000 to December 31, 2000 his Guideline obligation for child support for two children is equal to $1,878.00 on the first $150,000.00 and $1,942.00 on the balance. Consistent with my determination regarding Mr. Marzolf’s child support obligations on income he received in 2003 in excess of $150,000.00, the Guideline calculations will similarly apply only to one-half of the excess over $150,000.00 received by him in 1999. This results in monthly child support for two children from January 1, 2000 to December 31, 2000 of $2,849.00. [23] In 2000, Mr. Marzolf’s line 150 income was $345,432.00. This did not include net non-taxable capital gain of $87,418.00 realized on the sale of shares in Blue Sky Resources and other smaller investments. Including this amount results in total income of $432.850.00. On the same basis as determined above, find Mr. Marzolf’s child support obligations for each month in 2001 to be $3,518.50. In 2001 Mr. Marzolf’s line 150 income was $391,421.00. Again, using the same analysis, his support obligation for two children for the period January 1, 2002 to December 31, 2002 is $3,290.50. [24] In 2002, Mr. Marzolf’s line 150 income was only $2,410.00. He indicates that he realized net capital loss in 2002 of $67,834.00 but he has not provided Ms. Marzolf or the court with particulars of the losses. The court can therefore not determine what cash was available to him in 2002 as result of the disposition of the capital assets that gave rise to such losses. can only speculate that the sale of the capital asset generated sufficient income for Mr. Marzolf to comfortably support himself. This appears to be reasonable speculation since after disposing of these capital assets and earning only $2,410.00 of income in 2002, Mr. Marzolf still managed to retain significant assets. His property statement sworn just two years later on June 30, 2004 shows net assets of $729,000.00. am satisfied that even though Mr. Marzolf’s 2002 line 150 income was only $2,410.00 he nevertheless had significantly more than that amount available to him. [25] Given the pattern of Mr. Marzolf’s income in the three preceding years, along with the fact that he disposed of capital assets in 2002 that generated undisclosed cash flow and some two years later he nevertheless retains significant net assets, am satisfied that it is reasonable to impute additional income to Mr. Marzolf for 2002. impute income of $150,000.00 for child support purposes. This amount is reasonable based not only on the above factors but also because for child support purposes Mr. Marzolf has only been required to include one-half of his income in excess of $150,000.00 in all other years that his income exceeded that threshold amount. This results in child support payable for two children from January 1, 2003 to June 30, 2003 of $1,878.00 per month and the sum of $1,186.00 for one child for each month during the balance of the year. [26] Based on and as result of the foregoing, the parties should be able to determine the shortfalls in child support paid by Mr. Marzolf during each year and calculate the amount now owing to Ms. Marzolf. Any mathematical errors in the computations made herein may be corrected with the agreement of the parties failing which they should be brought to my attention. [27] Ms. Marzolf is entitled to her costs of this application which are hereby set at $2,600.00 which costs shall be paid forthwith.

Each party has applied for a variation of the judgment granted by Gunn J. in April 1999. The judgment incorporates the terms of an Interspousal Contract dated April 1999 that provides for basic child support to be paid by the petitioner in the amount of $1,411 per month. The calculation of child support in the Interspousal Contract was based on the petitioner earning $110,000. The petitioner seeks to have child support reduced for Kimberly and discontinued for Ashley. The petitioner has unilaterally terminated support for Ashley on the basis that she is over 18 years of age and not in full time attendance at school. The respondent seeks an upward variation of ongoing child support for Kimberly on the basis that the petitioner's income is significantly higher than $110,000. She also seeks a retroactive variation of support paid for both girls. HELD: 1) The parties agree that much of the petitioner's income since the separation has included significant amounts of non-recurring income in the form of capital gains, stock options and severance pay. In accordance with s. 16 of the Guidelines, a payor's income for child support purposes is determined based on total income, adjusted in accordance with Schedule III, as shown on his or her income tax return. The petitioner has provided no compelling reason to exclude any of his non-recurring income. To the contrary, it is the fairest way of proceeding. The petitioner's income since separation discloses that non-recurring income can realistically be anticipated in the future, as it has constituted a significant portion of his income in four of the last five years. The fairest way of determining the appropriate level of child support is by calculating it based on his income during the previous year. 2) The petitioner's line 150 income on his 2003 income tax return was $199,922. This includes $114,454 of non-recurring capital gain income from the sale of shares in Poplar Hill Resources. It does not include the non-taxable portion of that capital gain in the same amount. Pursuant to Clause 6 of Schedule III referred to in s. 16 of the Guidelines, this non-taxable amount is to be included as an adjustment to income. This results in the petitioner's 2003 income for child support purposes being $314,376. However, in examining documents provided by the petitioner regarding his previous year's income, it is apparent that he incurred net capital losses in 2002 of $65,424. The Court imputed $150,000 of income to the petitioner for the year 2002 despite this net capital loss and his line 150 income being only $2,410. It is therefore reasonable that this capital loss be deducted from the non-taxable portion of the capital gain he realized in 2003. This results in only $49,030 of the non-taxable portion of the 2003 capital gain being added to income for total income of $248,952. Based on the Guidelines, child support of $1,928 would be payable for Kimberly. 3) During the same year that the petitioner was enjoying income in excess of $248,000, the respondent's income for herself and the two children was only $24,345. It is self-evident that the petitioner has a substantially greater ability to provide financial support for Kimberly than does the respondent. In the circumstances it is appropriate that one-half of the Guideline amount for the petitioner's income in excess of $150,000 be payable as child support. Effective January 1, 2004, the petitioner shall pay monthly child support for Kimberly of $1,557. 4) Ashley did not complete grade 12 until June 2003. In the normal course, she would have graduated in June 2002, but she was short some classes. The required classes were not available in September 2002 so she did not return to school until the new semester in January 2003. Although Ashley was not in full time attendance in school during the last six months of 2002, she had not yet completed her basic education and had every intention of doing so. She was not in a position to withdraw from her parent's support. Considering the disparity in the ability of each of her parent to contribute to her support, it is appropriate that support for Ashley be the amount determined by applying the Guidelines as if she were a child under the age of majority. 5) A written request by the respondent for the petitioner to provide copies of his income tax returns is not required because the parties incorporated a positive obligation to exchange tax returns in their Interspousal Contract. Consistent with the objectives of the Guidelines and implicit in the Interspousal Contract the parties must have understood that the petitioner's child support obligation could change if his income changed. 6) This is clearly a case where a retroactive variation is warranted. No variation can be considered for 1999, the year of the Interspousal Contract and the judgment. Given the various sources of the petitioner's income and the significant annual fluctuations in his income, it is appropriate to use his previous year's income as the basis for calculation of his child support payable in the subsequent year. The Court went on to calculate the petitioner's income and the child support payable for each year. 7) In 2002 the petitioner's line 150 income was only $2,410. Given the pattern of the petitioner's income in the three preceding years, along with the fact that he disposed of capital assets in 2003 that generated undisclosed cash flow, and, some 2 years later, he nevertheless retains significant net assets, the Court imputed additional income to the petitioner of $150,000 for child support purposes. 8) The respondent was awarded costs set at $2,600.

5_2004skqb417.txt

Date: 2002October23 Docket: 2002NSPC032 IN THE PROVINCIAL COURT OF NOVA SCOTIA [Cite as: R. v. Burton, 2002NSPC032] HER MAJESTY THE QUEEN versus TROY DANIEL BURTON HEARD: At Baddeck, Nova Scotia, before the Honourable Judge A. Peter Ross, on March 1, 2002, March 15, 2002, May 3, 2002, May 17, 2002, May 24, 2002 and August 9, 2002 DECISION: Orally: October 11, 2002 Written: October 23, 2002 COUNSEL: Mr. Darcy MacPherson, for the Prosecution Mr. Alan Nicholson, for the Defendant INTRODUCTION [1] The defendant, Troy Burton, is charged under s. 253(b) of the Criminal Code with operating a motor vehicle when his blood alcohol level exceeded the prescribed limit. He is also charged with impaired driving under s. 253 (a). [2] Mr. Burton lost control of his vehicle as he rounded curve at the top of hill near the Fire Hall at Cape North, Victoria County, Nova Scotia. Witnesses put the time at shortly after 8:00 a.m.. He was the lone occupant. [3] Kirk Lawrence viewed the driving from the rear. The sound of squealing tires drew his attention to the vehicle. He saw it lose control at the top of the hill. He described the car as being half on the road and half on the shoulder. Although he then lost sight of the vehicle, he heard it go down over the bank second or two later. [4] Ms. Podanovich had side view of the driving through the breakfast window of her house. She heard the noise of the vehicle and saw it put up dust as it went over the bank on the opposite side of the road. [5] Yvonne Daisley had front view of the oncoming vehicle through her windshield. She first heard the vehicle accelerating towards her. When she saw Mr. Burton’s vehicle it was sideways, with its back end in the gravel. She took evasive action and saw the vehicle go over the embankment. She thought the car had been accelerating prior to going sideways. She figured that the driver had hit the gravel on the shoulder of the road and then tried to “correct it”. [6] There is no indication from any of these eye witnesses of poor road or weather conditions, or any unusual hazards, that might contribute to an accident of this sort. There is no evidence of mechanical defects or failures in the defendant’s vehicle. [7] paramedic with EMS Nova Scotia, Greg Lawrence, happened to be nearby. His daughter had just boarded the school bus at its usual stop about 100 metres from the accident. He thus put the time as 8:05. He went to the scene immediately and found Mr. Burton unconscious. He extracted Mr. Burton from the driver’s seat, put him on board, and placed him in the ambulance for transportation to the local hospital in Neil’s Harbour. Owing to the acidic dust from the airbags, he was unable to make any observations regarding the smell of alcohol at the scene. Mr. Burton was transported by helicopter to hospital in Halifax somewhat later that morning. Mr. Lawrence was with Mr. Burton for most of the intervening time. [8] According to the uncontradicted evidence of the defendant’s uncle, William Burton, evidence which accept, the defendant had been to William Burton’s house at South Ridge Road at approximately 7:30. He wanted his uncle to drive him down to the gas station. The defendant had two pints of Labatt’s Blue beer with him. William Burton declined an offer to have one, but the defendant managed to drink them both between 7:30 and 8:00. In the opinion of William Burton, the defendant was “impaired”. He considered taking his keys but thought it would not be necessary if the defendant, as his comments suggested, had run out of gas. He said the defendant staggered, and twice fell, before leaving, by himself, in his vehicle. [9] Word of this accident got to Sergeant Pembroke of the Ingonish Detachment of the RCMP. He went to the scene and after conversation with various people instructed one of his constables, Flanagan, to attend at the hospital and investigate possible impaired driving. He instructed Constable Flanagan that the blood demand should take “back seat” to medical treatment. During second telephone conversation they arrived at an agreement to pursue blood demand. [10] Constable Flanagan arrived at the hospital at 8:54. He spoke to staff and observed Mr. Burton lying on gurney. He watched as Mr. Burton was taken to x-ray and otherwise treated by Dr. Buffett and other hospital staff He did not approach Mr. Burton directly until shortly before 9:49, the time that the blood demand was actually read. He was satisfied, having spoken to Dr. Buffett, that blood sample could be taken safely. There was some brief conversation with Mr. Burton. He detected the smell of liquor from Mr. Burton’s breath. blood demand was given and eventually acceded to, preceded by the usual Charter rights to counsel. The sample, once drawn, made its way to the RCMP Forensic Lab in Halifax, where an analysis revealed blood alcohol level of 92 milligrams of alcohol in 100 millilitres of blood. Pursuant to s. 258(5) the sample was also tested for the presence of drugs. Bromazepam was found at concentration of .32 micrograms per millilitre of blood, and lesser amounts of two related chemicals. [11] will return to the conversation between Mr. Burton and Constable Flanagan, and make further mention of events at the hospital, later in these reasons. PROOF OF BLOOD ALCOHOL LEVEL [12] The Crown tendered Certificate of Qualified Medical Practitioner and certificate of an analyst and also presented viva voce expert evidence from Elizabeth Dittmar. She addressed questions of absorption, elimination and extrapolation. Her evidence, and the combined effect of s. 258(1)(h) and (i) of the Criminal Code establish that the defendant’s blood alcohol level at the time of driving was at minimum 86 milligrams per 100 millilitres of blood, and quite likely the 92 that the certificate reads. Her calculation of possible blood alcohol range of 60 to 80 was given in response to hypothetical question in cross, but the assumptions were not borne out by later evidence. Specifically, there is no reason to think that Mr. Burton “chugged” both bottles of beer in the final five minutes of his visit at the uncle’s. Rather, the evidence tends to show that the drinking took place throughout that one-half hour period. [13] Mr. Archibald, toxicologist at the RCMP Forensic Laboratory in Halifax, gave expert opinion evidence that concentrations of Bromazepam found here are twice the average therapeutic level. His evidence establishes that this amount would have significant impairing effect on one’s ability to operate motor vehicle an effect, moreover, which would be cumulative to the effect of alcohol. VALIDITY OF THE BLOOD DEMAND [14] Owing to Mr. Burton’s physical condition, Constable Flanagan made demand for blood samples under s. 254(3). The necessary assurances were given and the usual medical pre-conditions met. At issue, however, is whether the peace officer had reasonable and probable grounds to make the demand. find from the evidence that the grounds relied upon may be broken down into the following components. [15] First, Constable Flanagan knew from Sergeant Pembroke that Mr. Burton had been in single car accident in which his vehicle had hit the shoulder and left the road. Further, the Constable testified that “he also informed that someone, two people had let him know that the defendant was either high or intoxicated”. Hearsay, of course, may be used to formulate grounds. [16] Second, Constable Flanagan said that “I smelled Mr. Burton and got the mild odour of liquor off of him”. Elsewhere in his evidence he said “I could smell the liquor on his breath or coming from his head”. While the medical technician, Mr. Lawrence, did not note the smell of liquor from the defendant, despite the fact that he was close to him for significant period of time afterwards, Mr. Lawrence gave reasons why he may not detect such an odour. In any event the accuracy of the police officer’s observations and contradictory evidence of other witnesses is not factor here, so long as accept, as do, that the officer’s belief was real and reasonable. [17] Possessed with the foregoing information, Constable Flanagan said that he explained to the defendant that he had “reasonable and probable grounds to believe that he had been drinking”. He further testified “I was going to read the blood demand to him. At that point the defendant said that he only had three beer - ‘I only had three beer, I swear to God’, were his words”. After voir dire ruled the foregoing utterance admissible, though not in proof of the assertion per se. It thus forms third component of the officer’s belief. [18] Defence has argued that only the first two of the foregoing three factors ought to be assessed in deciding whether the grounds were sufficient. While do not agree with this submission, note that in previous decision of this Court, upheld on appeal, concluded that the occurrence of single vehicle accident, with no apparent explanation, coupled with smell of alcoholic beverage from the breath of the driver, constitutes sufficient grounds to make breathalyzer demand[1]. This alone would dispose of the issue. However, think the grounds here are stronger still. While Constable Flanagan had apparently decided to make the demand before hearing the utterance about the “three beer”, the fact remains that he heard this utterance before the demand was actually given. When asked what effect that statement had with respect to his grounds, he answered “I supposed that reinforced it”. It was thus third and substantiating element of his reasonable and probable belief as of the time the demand was made. [19] In sum, the information in possession of the police officer gave him an honest and reasonable understanding of facts sufficient to constitute proper grounds for blood demand. It is thus not necessary to consider whether the taking of the sample constitutes violation of Mr. Burton’s s. or s. Charter rights. [20] believe it is settled law that in cases such as this, where police visit suspected drinking driver confined by injuries to hospital, that there is no “detention” until the demand is made.[2] This leads to consideration of the next issue. THE ACCUSED’s UNDERSTANDING OF THE DEMAND and s. 10 CHARTER RIGHTS [21] The more difficult issues in this trial concern Mr. Burton’s mental state during the time the police officer assumed some control over his situation, imposed upon him the obligations arising from s. 254(3) and (5) of the Criminal Code, and read him his s. 10 Charter rights. THE LEGAL FRAMEWORK [22] The Supreme Court[3] makes clear that consent plays no part in s. 254. As the law is presently written the Crown need not prove an accused’s “consent” to properly take blood samples. The test, rather, is “compliance” which is equated roughly to failure to object. [23] Upon detention, Mr. Burton had the right under s. 10(a) of the Charter to be informed promptly of the reasons therefor and under s. 10(b) to retain and instruct counsel without delay and to be informed of that right. It seems obvious that if his thinking was clear enough to appreciated the 10(b) advice it would be sufficient to comprehend the 10(a) aspect. Considering, therefore, the duties of the police under s. 10(b) proceed from the summary contained in R. v. Bartle[4]. extract the following portion of the judgement of Lamer, C.J.C. beginning at paragraph 17. (b) The Duties Under Section 10(b) This Court has said on numerous previous occasions that s. 10(b) of the Charter imposes the following duties on state authorities who arrest or detain person: (1) to inform the detainee of his or her right to retain and instruct counsel without delay and of the existence and availability of legal aid and duty counsel; (2) if detainee has indicated desire to exercise this right, to provide the detainee with reasonable opportunity to exercise the right (except in urgent and dangerous circumstances); and (3) to refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity (again except in cases or urgency or danger). (See for example, Manninnen, at pp. 1241-42; R. v. Evans 1991 CanLII 98 (SCC), [1991] S.C.R. 869, at p. 890 and Brydges at pp. 203-4). The first duty is an informational one which is directly in issue here. The second and third duties are more in the nature of implementation duties and are not triggered unless and until detainee indicates desire to exercise his or her right to counsel. Importantly the right to counsel under s. 10(b) is not absolute. Unless detainee invokes the right and is reasonably diligent in exercising it, the correlative duty on the police to provide reasonable opportunity and to refrain from eliciting evidence will either not arise in the first place or will be suspended: R. v. Tremblay [1978] S.C.R. 435 at p. 439, and R. v. Black 1989 CanLII 75 (SCC), [1989] S.C.R. 138 at pp. 154-55. Furthermore, the rights guaranteed by s. 10(b) may be waived by the detainee although the standard for waiver will be high, especially in circumstances where the alleged waiver has been implicit. Clarkson, at pp. 394-96; Manninen, at p. 1244; Black, at pp. 156-57; Brydges, at p. 204; and Evans, at pp. 983-94 Under these circumstances, it is critical that the information component of the right to counsel be comprehensive in scope and that it be presented by police authorities in “timely and comprehensible” manner: R. v. Dubois, [1990] R.J.O. 681 (C.A.), (1990), 1990 CanLII 3298 (QC CA), 54 C.C.C. (3d) 166 at pp. 697 and 196 respectively. Unless they are clearly and fully informed of their rights at the outset, detainees cannot be expected to make informed choices and decisions about whether or not to contact counsel and, in turn, whether to exercise other rights, such as their right to silence: Herbert. Moreover, in light of the rule that, absent special circumstances indicating that detainee may not understand the s. 10(b) caution, such as language difficulties or known or obvious mental disability, police are not required to assure themselves that detainee fully understands the s. 10(b) caution, it is important that the standard caution given to detainees be as instructive and clear as possible: R. v. Baig 1987 CanLII 40 (SCC), [1987] S.C.R. 537, at p. 540, and Evans, at p. 891. Indeed the pivotal function of the initial information component under s. 10(b) has already been recognized by this Court. For instance, in Evans, McLachlin, J., for the majority stated at p. 891 that “person who does not understand his or her right cannot be expected to assert it”. In that case, it was held that in circumstances which suggest that particular detainee may not understand the information being communicated to him or her by state authorities, mere recitation of the right to counsel will not suffice. Authorities will have to take additional steps to ensure that the detainee comprehends his or her s. 10(b) rights. Likewise, this Court has stressed on previous occasions that, before an accused can be said to have waived his or her right to counsel, he or she must be possessed of sufficient information to allow him or her to make an informed choice as regards exercising the right: R. v. Smith (Norman MacPherson), [1991] S.C.R. 7114, at pp. 724-29, and Brydges, at p. 205. [24] Bartle was considered by the Newfoundland Court of Appeal in case rather similar to the one at hand. In R. v. Kennedy[5] the Court found error in the “trial Judge’s focussing exclusively upon the detainee’s understanding of the substance of the communication rather than on whether the communicator acquitted her duty to inform Mr. Kennedy in comprehensible terms of the essential substance of his right to counsel”. The Court further went on to state[6]: The detainee’s right, therefore, is to be properly informed. There is no absolute protection against lack of appreciation of the information conveyed. The fulfilment of the informational component of the right to counsel does not hinge on whether the detainee understood the communication but whether the essential elements of the right were adequately communicated. It is not, therefore, so much question of whether the message was comprehended, but whether it was comprehensible. By focussing entirely upon Mr. Kennedy’s understanding of the communication of his right, the trial judge made an error of law in his interpretation of the import of s. 10(b) of the Charter. This is not to say that the detainee’s comprehension may not be factor in assessing whether the police or other public authority has discharged its informational obligation. Thus, if there are indications that the person under detention has not sufficiently understood or appreciated his or her right to counsel when conveyed to him or her, the duty will entail such steps as are necessary to facilitate adequate comprehension. In the absence of signs of lack of such comprehension, however, adequate communication will satisfy the requirements. [25] The Newfoundland Court of Appeal is concerned about imposing an impossible burden upon police where there are “no detectable signs of misapprehension”. However, underscoring again that the analysis is not entirely one-sided, the Court later suggests that in proper case the Court may “impute constructive knowledge of any defect in comprehension”[7]. This would require the Court to consider not only what the police knew but what they ought to have known. As far as it goes this seems fair enough. If it is not simply question of whether the message was comprehended but whether it was comprehensible, it has the fairness of symmetry, at least, to say that it is not simply question of whether an inability to understand was detected, but whether it was detectable. [26] In some situations it is not obvious whether the analysis should proceed to consideration of proof of waiver. In R. v. Baig[8] the Court stated that there was no need to determine whether, under the circumstances of that case, the accused’s conduct amounted to waiver of his right to counsel. The Court adopted the following statement of the law.[9] Absent proof of circumstances indicating that the accused did not understand his right to retain counsel when he was informed of it, the onus has to be on him to prove that he asked for the right but it was denied or he was denied any opportunity to even ask for it. [27] Given the foregoing statement in R. v. Baig, it may be going further than is necessary here to consider whether there is proof of valid waiver. However, think it is the better and proper course that do so. It is difficult to make neat separation of the issues. Perhaps it is best not to try. As MacLachlin, J. stated in .v. Smith[10], ...these cases establish that, regardless of whether the focus is on the sufficiency of the initial 10(b) advice or on the waiver, what is required is that the accused understands generally the jeopardy in which he or she finds himself and appreciate the consequences of deciding for or against counsel. [28] also agree with the general proposition advanced in R. v. Demont[11] that special care must be taken by persons in authority who attempt to obtain samples of blood for non-medical purposes from person in hospital who has sustained any injury which might reasonably be expected to affect adversely that person’s ability to comprehend the consequences of complying with such demand. APPLICATION OF THE LAW TO THE FACTS EVENTS AT THE HOSPITAL [29] have read and considered various cases where police gave right to counsel or demand for samples to an accused in hospital after motor vehicle accident. While the reading of such cases is helpful, it also underscores the importance of the facts in the particular case.[12] [30] According to Mr. Burton, his last memory from September the 8th, 2000 is getting gas at MacKinnon’s garage. His next recollection is from the ICU at the Cape Breton Regional Hospital. He thus professes amnesia not only from the moment he was injured but of the events immediately preceding the accident, including his ascending the hill and rounding the curve just prior to leaving the road. This profession of amnesia thus eliminates Mr. Burton as potential source of evidence not only as to what took place in the hospital regarding his right to counsel but also as to his driving just prior to the accident. Clearly such evidence has the potential to be contrived, convenient and self-serving. This concern was heightened when Mr. Burton, in cross-examination, seemed to recall hitting the shoulder of the road and losing control, when earlier in direct he claimed to have no memory after getting gas. However, even if accept his claim of amnesia as truthful, it is not clear how this proves an inability to understand at the hospital. While it may be tempting to jump from amnesia to conclusion that he was unable to understand the events subsequently forgotten, there is no medical evidence in this case to support such conclusion. am thus discounting the weight of Mr. Burton’s evidence considerably. As it relates to his ability to comprehend events at the hospital. [31] The first person to attend to Mr. Burton after his vehicle left the road was Greg Lawrence, the paramedic. He said that Mr. Burton was unconscious with “classic signs of head trauma”. He said Mr. Burton “did not know what his environment was around him”. Mr. Burton was given oxygen and became “semi-conscious” once he was in the back of the ambulance. Mr. Lawrence stated that he stayed in the emergency room with Mr. Burton until he was loaded on the helicopter at which point he said Mr. Burton was “still disoriented”. He described Mr. Burton as being at times “combative” which he said was consistent with head injury. Although Mr. Lawrence was apparently present when Constable Flanagan dealt with Mr. Burton, and during other exchanges between Mr. Burton and medical personnel, he was not questioned about Mr. Burton’s participation in these conversations. There is no other evidence from medical personnel in this case. There is no expert opinion evidence on Mr. Burton’s cognitive abilities at the relevant times. [32] Mr. Burton’s father attended the hospital and testified in his son’s defence. He described him as “passing out and coming to”. Regarding any attempted conversations he said “if you asked him anything, all he would do is curse and swear and holler”. Angus Burton evidently expressed these concerns to the police officer and the doctor. He testified that his son would repeat the last thing he heard. [33] Crown counsel asked Constable Flanagan whether he had “any concerns when you made the demand that he might not understand it”. Constable Flanagan stated “no didn’t....after the conversation with Dr. Buffett”. This must not be route by which the Crown adduces hearsay evidence from Dr. Buffett as to Mr. Burton’s understanding. It is, in any event, question about understanding the demand, not the right to counsel. Further, looking at other responses, there is some concern that the police officer may have conflated advice from the doctor regarding possible endangerment to health with advice as to ability to comprehend and comply. [34] think that an appreciation of the right to counsel involves higher degree of “cognitive processing”, if may call it that, than does an appreciation of the blood demand itself. To locate the distinction within the facts of this case, one might infer from the fact that Mr. Burton stuck out his arm for the police officer that he was complying with the blood demand and thus understood it. However, more than this would be required to find that Mr. Burton appreciated the right to counsel. The inquiry concerns not only what the state authorities did based on reasonable belief. It entails an assessment by the Court of the detainee’s ability to comprehend. [35] Despite the foregoing, have concluded that Mr. Burton possessed sufficient understanding of each of the following: (a) the reason for the police officer’s attendance at the hospital, (b) the demand which was made on him, (c) the opportunity which was being given to him to consult with lawyer and (d) that what was being sought, the blood samples, related to impaired driving and would put him in legal jeopardy. My conclusion derives not so much from the police officer’s view that Mr. Burton understood what was going on; rather, it comes from an evaluation of things that Mr. Burton said and did during the relevant time period. [36] While his degree of alertness may have been fluctuating, and his emotions unstable, Mr. Burton nevertheless displayed an understanding of his situation through words and actions spanning a significant period of time. First, early in his encounter with Constable Flanagan, when he learned that he was going to receive blood demand, Mr. Burton said “I only had three beer, swear to God”. While this does not come in as proof of alcohol consumption, it nevertheless displays an understanding of what Constable Flanagan had said to him. It shows an appropriate concern for how much he had been drinking. It is given as though in an attempt to deflect Constable Flanagan from his proposed course of action. Second, short time later, after the Charter rights and demand were given, Mr. Burton asked Constable Flanagan “How am going to speak to lawyer?”. Again, this is an appropriate and valid question, showing an understanding of his predicament, and what speaking to counsel would entail. When told that phone would be brought into the room for his use, he then declined the call and agreed to give the samples. Once again, this is indicative of person mentally engaged in conversation and responding appropriately. Third, once Dr. Buffett was recruited to procure the blood samples, Mr. Burton said he did not want them taken. When advised of this, Constable Flanagan returned to the room and spoke to Mr. Burton again. When he advised Mr. Burton that refusal of the demand was an offence carrying the same penalty as impaired driving, Mr. Burton became emotional and, saying that he would give the samples, stuck out his arm. This again shows an awareness of what was expected of him, of the difficult predicament that he was in, and the incriminating nature of the evidence that would be revealed from the blood sample. [37] Unlike the police in certain other cases, Constable Flanagan did not attempt to deal with Mr. Burton immediately upon entry to the hospital. Rather, the officer waited considerable time until all medical procedures had been completed, before undertaking blood demand and right to counsel. [38] thus conclude that Mr. Burton was afforded his s. 10(v) Charter rights at time when he was capable of appreciating and understanding the rights and that Mr. Burton gave an informed waiver as that is understood from R. v. Clarkson[13] and subsequent cases. As was stated in Smith[14], supra, am satisfied that ...in all the circumstances revealed by the evidence the accused generally understood the sort of jeopardy he faced when he made the decision to dispense with counsel. CERTIFICATE OF ANALYST/PRESUMPTION OF BLOOD LEVELS AT TIME OF DRIVING [39] With the foregoing conclusion, there is no Charter basis on which to exclude the Certificate of Analyst, which, on the evidence in this case serves to prove that Mr. Burton’s blood alcohol level was 92 milligrams of alcohol in 100 millilitres in blood. While there was some questioning of expert witnesses regarding the applicability of the presumption in s. 258(1)(d), this argument was not developed by counsel in submissions. Nevertheless, have considered the evidence on this point. In particular, take from the evidence of William Burton that any consumption of alcohol by the defendant Troy Burton occurred over the one-half hour period that they were together. There being no “evidence to the contrary” Mr. Burton’s blood alcohol level is presumed to be 92 at the time, shortly after 8:00 a.m., when he drove his car off the road. While there is some ambiguity and minor inconsistency over times, these are either clarified by other evidence or put to rest by acknowledgements from defence counsel. [40] Accordingly, Mr. Burton is found guilty of the offence under s. 253(b). As noted earlier, the vive voce evidence indicates minimum blood alcohol level of 86. Whether one follows the documentary or the testimonial path, the result is still finding of “over 80". IMPAIRED DRIVING s. 253(a) [41] S. 253(5) provides that blood samples taken pursuant to demand may be tested for the presence of drugs. Such was done in this case, and expert toxicology evidence given as to the levels and toxicological effects of such. Impairment by drugs, or alcohol, or combination thereof, can constitute impairment under s. 253(a). Although there is no evidence what drugs or medications Mr. Burton may have received in hospital, the toxicologist described the amount of Bromazepam in Mr. Burton’s system as being in the “toxic” range. thus agree with Crown’s submission that even if the drug had been administered as medication (a possibility which finds no support in the evidence) it is highly unlikely that it would be administered at toxic levels. The evidence in this case would thus lead to finding of guilty on the 253(a) charge. However, given the finding already made on the 253(b) offence, stay of proceedings is entered on the impaired driving charge. [42] As footnote, might say that even had agreed with the defence submissions and found breach of the s. 10(b) right, and had gone on to exclude the certificate under s. 24(2), there would remain considerable evidence of impaired driving in this case. It would be found in part from the evidence of the defendant’s uncle, William Burton. short time before the accident, the defendant arrived at William Burton’s home asking for car to get some gas. William Burton said “I was going to take the keys off him but figured he doesn’t have any gas so there’s no point in my bothering to do that”. This evidences his opinion that the accused was too impaired to drive. He said the accused staggered. He said he fell down twice: once on the way into the house at which time he struck his head, and second time inside when he fell off chair. He knew the accused well. Laymen may give an opinion about intoxication[15] His familiarity with the accused gives this opinion added weight. Further, the accused brought two bottles of beer into the house and drank them while he was there. From the evidence of Ms. Dittmar, it is reasonable to conclude that this would add significantly to the degree of intoxication which he already displayed. To this would be added consideration of the circumstances of the accident itself, occurring as it did on fine day, on stretch of road which would have been familiar to the defendant, when other traffic on the road had no difficulty navigating, with no evidence of any untoward hazards. Dated at Sydney, Nova Scotia, this 23rd day of October, A.D., 2002 A. Peter Ross, J.P.C. [1] R. v. Musgrave [1996] N.S.J. No. 200 (Q.L.) [2] R. v. Kay 1990 CanLII 388 (BC CA), [1990] B.C.J. No. 210 (B.C.C.A.) [3] R. v. Knox, 1996 CanLII 171 (SCC), 109 C.C.C. (3d) 481 (SCC) [4] (1994) 1994 CanLII 64 (SCC), 33 C.R. (4d) (SCC) [5] (1995) 1995 CanLII 9863 (NL CA), 103 C.C.C. (3d) 161 at p. [6] Kennedy, supra at p. [7] Kennedy, supra, at p. [8] 1987 CanLII 40 (SCC), [1987] S.C.J. No. 77 (Q.L.) [9] From R. v. Anderson (1984) 1984 CanLII 2197 (ON CA), 10 C.C.C. (3d) 417 (Ont. C.A.) at p. [10] 1991 CanLII 91 (SCC), [1991] S.C.R. 714 at par. 26 [11][1992] N.S.J. No. 541 (Q.L.) (NSSC) [12] See for example, R. v. McAvena (1987) 1987 CanLII 201 (SK CA), 34 C.C.C. (3d) 461 (Sask. C.A.); R. v. O’Donnell (1991) 1991 CanLII 2695 (NB CA), 66 C.C.C. (3d) 56 (N.B.C.A.); R. v. Sanderson [1999] S.J. No. 564 (Q.L.); R. v. MacDonald [1999] M.J. No. 124 (Q.L.); and R.v. Kennedy, supra. [13] 1986 CanLII 61 (SCC), [1986] [15] R. v. Graat, 1982 CanLII 33 (SCC), 31 C.R. (3d) 289 (S.C.C.)

The accused was charged with operating a vehicle when his blood alcohol level exceeded the prescribed limit and impaired driving. After being involved in an accident, the accused was taken to hospital where a blood demand was given and eventually acceded to. The accused challenged the validity of the blood demand and argued that his right to counsel was violated. Accused guilty of operating a vehicle when his blood alcohol level exceeded the prescribed limit; there was no violation of the accused's right to counsel. The officer had valid grounds to make the demand, having been advised that the accused was in an accident, that someone had said the accused was either high or intoxicated, having smelled a mild odour of alcohol on the accused and the accused having advised him that he only had three beer. Even if the accused's claim to amnesia for all the events around that time was believed, there was no medical evidence to suggest that he could not understand what the officer said to him at the hospital. Although his degree of alertness may have fluctuated, he displayed an understanding of the situation by showing appropriate concern for how much he had been drinking and asking questions which showed an understanding of his situation and what speaking to counsel would entail.

b_2002nspc32.txt

SUPREME COURT OF NOVA SCOTIA Citation: R. v. Johnston, 2009 NSSC 218 Date: 20090709 Docket: CRH294589 Registry: Halifax Between: Her Majesty the Queen v. Jerrell Corlando Johnston Judge: The Honourable Justice Felix A. Cacchione Heard: July 9, 2009, in Halifax, Nova Scotia Written Decision: July 30, 2009 Counsel: Arthur G. Theuerkauf and Gregory E. Lenehan, for the Crown Kevin A. Burke, Q.C., for Mr. Johnston By the Court: [1] The accused, Jerrell Johnston and Nathaniel Sparks were jointly charged with two counts of murder and one count of attempted murder in relation to shootings which occurred on December 10th, 2006. [2] The charges were laid on June 4th, 2007 and warrants were issued that day for both accused. On June 8th, 2007 the warrants were recalled and both accused appeared that day and consented to being remanded into custody. [3] Following lengthy preliminary inquiry both accused were committed to stand trial on April 4th, 2008 and both remained in custody until October 29th, 2008 when they were, by consent, released on judicial interim release under the Adult Bail Supervision Program. In this decision will address only the conditions relevant to Jerrell Johnston. [4] Mr. Johnston was subject to curfew from 8:00 p.m. to 6:30 a.m. daily, residency requirement and condition that he not attend certain areas in the Halifax Regional Municipality. He was also fitted with an electronic bracelet to monitor his activities while he was on bail. [5] No breaches of any bail conditions were reported. [6] In total Mr. Johnston spent approximately 17 months in pre-trial custody on remand. At the conclusion of the trial the Crown consented to continuation of his bail conditions until the sentencing date. [7] Both Mr. Johnston and Mr. Sparks were acquitted by the jury of the murders of Brandon Beals and Martez Provo. The jury was instructed that they could accept all, some or none of witness’ evidence. Their finding of guilt in relation to Mr. Johnston on the charge of attempting to murder Vantino Beals signifies that they accepted from the evidence of Vantino Beals and Lisa Dudka that the Crown had established beyond reasonable doubt that Jerrell Johnston was the man Lisa Dudka said she saw firing gun at person whom she saw running from the driveway at 443 Upper Partridge River Road and who Vantino Beals said was the man who fired gun at him. [8] The jury accepted that Vantino Beals knew Jerrell Johnston before the evening in question. His evidence at trial was that he had known Mr. Johnston from his teenage years. It can be taken from the jury’s verdict on the count of attempted murder that Vantino Beals was truthful when he identified Mr. Johnston as having gun and firing it into the air moments before he, Vantino Beals, was shot; and Jerrell Johnston as the man in the middle of the Upper Partridge River Road firing gun at him. The jury must also have accepted Vantino Beals’ evidence that he was running away from the gunfire when he was struck by bullet. [9] It was open for the jury to find and in all likelihood they did find from the ballistics evidence presented that more than one 40 calibre firearm was fired at the scene that evening and that 25 calibre firearm was also discharged. [10] What preceded the outburst of gunfire, if the jury accepted Vantino Beals’ evidence on this point, was verbal encounter between Vantino Beals and Nathaniel Sparks followed by push of Mr. Sparks by Martez Provo. There is no indication from the evidence of any animosity or hostility between Mr. Johnston and Vantino Beals. The only evidence about what occurred before the outburst of gunshots was that of Vantino Beals. His evidence on this point was lacking details in many respects. [11] The presence of second vehicle carrying four or five black males arriving at the same time as the vehicle carrying Vantino Beals and the deceased Brandon Beals and Martez Provo must also have been factor in the jury’s deliberations about what actually precipitated the fatal shootings and who committed them. [12] The jury, however, was unanimous in finding that Jerrell Johnston was the person who shot Vantino Beals and that at the time he shot him Jerrell Johnston intended to kill Vantino Beals. What lead up to the fatal shootings and the shooting of Vantino Beals was not revealed in any meaningful detail by the evidence presented. Vantino Beals’ evidence was the only evidence on this point and as stated previously, it lacked any meaningful details. It is obvious from the jury’s verdict on two of the three counts on the indictment that they did not accept his description of the events which led to the deaths of Brandon Beals and Martez Provo, but they did accept his evidence in relation to Jerrell Johnston firing gun at him. What Vantino Beals did before being shot and why Jerrell Johnston fired gun at him was not disclosed by the evidence. [13] It would appear from the jury’s verdict of guilt that Ms. Dudka’s evidence must have played significant role in the jury’s conclusion. Her evidence provided crucial piece of circumstantial evidence confirming the evidence of Vantino Beals as to who shot him. Although Lisa Dudka did not identify Jerrell Johnston as the shooter, her evidence was supportive of Vantino Beals’ evidence in material respect. Ms. Dudka’s evidence no doubt provided the jury with some assurance that Vantino Beals was telling the truth on this point. [14] Why gunfire erupted in the first place will never be known. What is clear, however, is that there was so much more that occurred in the early morning hours of December 10, 2006 which Vantino Beals did not or was not able to relate. [15] This case demonstrates once again the presence in our community of illegal handguns and the presence of those who are prepared to use the handguns they carry regardless of the consequences to others. [16] If Mr. Johnston was at Vegas that evening just to have good time, why would he be packing firearm? [17] The case also demonstrates the fear that has been instilled in our community by the wanton use of handguns. Despite the fact that numerous persons were present both inside and outside the after hours bar known as Vegas at the time of the shootings, little useful information was provided by those persons to the authorities. [18] The media accounts following this incident were replete with reports of the difficulty that the police were having in obtaining information from the community that would assist their investigation. The media reports also referred to subsequent shootings which appeared to be in retaliation for what occurred on December 10, 2006. [19] Apparent from those reports was that the citizens of the community where these shootings occurred were being held hostage and lived in fear because of the intimidation produced by the presence in their community of hoodlums armed with handguns. [20] The principles of sentencing are set out in ss.718 to 718.2 of the Criminal Code. The fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of just, peaceful and safe society. [21] The principles contained in these sections provide that the objectives of denunciation of the unlawful conduct; deterrence to the offender and others who are similarly inclined; protection of society; rehabilitation of the offender; reparation to the victim or the community and the promotion of sense of responsibility in the offender must be considered by the court when imposing sentence. [22] In short, the court must consider the nature and circumstances of the offence and the character of the accused in order to arrive at fit and proper sentence. [23] Mr. Johnston is being sentenced on one count of attempted murder involving the use of a firearm. Section 239(1)(a) of the Criminal Code provides for maximum penalty of life imprisonment with minimum punishment of four years where firearm is used in the commission of an attempted murder. [24] The Crown submits that sentence in the range of to 10 years would be appropriate. [25] The defence argues that sentence of 4½ years less credit of 33 months for remand time and further credit of months for time spent on pre-trial release, leaving global sentence of 15 months would be appropriate. [26] accept that the accused should be given credit for time spent on remand on the basis of for which would amount in this to 33 months credit. do not however accept that he should be given credit for time spent on pre-trial release. [27] The defence refers to the Ontario Court of Appeal decision in R. v. Downes (2006), 2006 CanLII 3957 (ON CA), 205 CCC (3d) 488 in support of its position that pre-trial release time should be credited. The facts in Downes show that the pre-trial release conditions amounted to complete house arrest without exceptions for employment, medical emergencies or religious services. Mr. Downes was entirely dependent on his surety if he wanted to leave his residence since the release conditions required him to be in the company of his surety whenever he was not in the residence. Mr. Johnston did not have the same restrictive conditions. While he did have to obey curfew and wear monitoring bracelet, he was not confined to house arrest. He could go about his daily activities and his employment. [28] am not satisfied that credit should be given in this case for his time on pre-trial release. [29] Attempted murder is clearly considered to be an inherently serious crime. Saunders JA in R. v. Bryan (2008), 2008 NSCA 119 (CanLII), 272 N.S.R. (2d) 246 at paragraph 40 stated as follows: What is inherently serious in all cases of attempted murder is the requirement of mens rea of specific intent to kill R. v. Ancio, 1984 CanLII 69 (SCC), [1984] S.C.R. 225). Discussing the importance of the mens rea component, Chief Justice Lamer observed in R. v. Logan, 1990 CanLII 84 (SCC), [1990] S.C.R. 731 at para. 20: The stigma associated with conviction for attempted murder is the same as it is for murder. Such conviction reveals that although no death ensued from the actions of the accused, the intent to kill was still present in his or her mind. The attempted murderer is no less killer than murderer: he may be lucky the ambulance arrived early, or some other fortuitous circumstance but he still has the same killer instinct. Secondly, while conviction for attempted murder does not automatically result in life sentence, the offence is punishable by life and the usual penalty is very severe. [30] In the present case the jury, by its verdict, was satisfied beyond reasonable doubt not only that Mr. Johnston shot Vantino Beals, but also that at the time of the shooting he intended to cause the death of Vantino Beals. [31] The presentence report discloses that Mr. Johnston has prior criminal record for non-violent offences such as fraud, possession of controlled substance and careless storage of weapon. He was not on probation at the time of this offence and his last conviction prior to this incident was some years before. [32] Mr. Johnston is 27 years of age. He is relatively youthful, but he is not youthful offender. It appears from the pre-sentence report that he had an uneventful upbringing and that his parents remain supportive of him. His mother did note that Mr. Johnston might require some assistance in processing his anger. [33] The offender is currently involved in common law relationship which has produced two young children, ages and 5. [34] He has grade 10 education and has indicated an interest in upgrading his education. His work history consists mostly of seasonal labour type employment. current employer, Mr. Faught, describes him as good employee who takes direction well and puts in full days work. [35] It would appear from the presentence report that Mr. Johnston has no substance abuse issues. [36] Mr. Dan Ray, the Probation Officer who supervised Mr. Johnston since his release on bail in October 2008 described him as compliant person and attentive to the requirements of his bail order. [37] The offender, as is his prerogative, does not accept responsibility for the offence. He did, however, acknowledge to his Probation Officer that he has trouble processing his anger emotions and might benefit from assistance in this area. Having difficulty processing anger emotions and packing loaded firearm is lethal combination. [38] The offence before this Court was particularly serious one. An aggravating factor in this case is that handguns were used in an area where a number of people were close by at the after hours bar known as Vegas. Quite few shots were fired and two persons died as result of the gunfire. This is referenced simply to provide context for the sentence to be imposed. [39] Mr. Johnston was acquitted of the two counts of murder and he is not being sentenced for those offences today. The fatalities are mentioned simply to highlight what the result of indiscriminate gunfire can be. [40] Another aggravating factor is that a bullet found its way into an occupied residence across the road from the after hours bar. There was serious threat to the safety and well being of the persons living in that residence as well as to those persons who were congregated on the outside porch of the after hours bar shortly before gun fire began. There was also threat to the safety and security of Ms. Dudka who was sitting in vehicle parked by the side of the road near the gunfire. [41] The fact that Mr. Johnston obviously possessed and used a firearm is also an aggravating factor. This was not the first time Mr. Johnston possessed firearm as evidenced by his March 20, 2001 conviction for careless storage of weapon. [42] From the evidence presented at trial and the presentence report the only possible mitigating factors that can find are Mr. Johnston’s relatively youthful age, the fact that he did not breach his bail conditions and that he has no record of violence. [43] The range of sentence for an offence of attempted murder is at the high end, 10 to 15 years incarceration for the most serious cases involving devastating injury or marked cruelty. The mid-range for this offence is to years and the low range is to years. (See R. v. T.H., [2005] O.J. No.5849) [44] In R. v. Bryan our Court of Appeal upheld 15 year sentence for an attempted murder in domestic context. [45] In the present case it is the use of the handgun which is particularly aggravating. Handguns by their nature are deadly weapons which are easily concealed. They can easily be transported and concealed until they are used. The evidence in the present case points to the presence of at least 2, probably handguns being fired in the early morning hours of December 10, 2006. [46] In situations such as this where handguns are used to settle disputes the primary objective of sentencing must be deterrence both specific and general and denunciation of such conduct. It must be made clear to all those in our society who believe that disputes can and should be settled through the barrel of gun, that our society will not tolerate such behaviour and that severe sanctions will be the result of the use of handguns. [47] Recently it would seem that not week has gone by without guns being discharged in areas frequented by members of our community. In fact the day before the date originally set for this sentencing the local newspaper carried yet another story of someone being shot. That shooting occurred on the Upper Partridge River Road as well. The same road where Brandon Beals and Martez Provo were killed and where the present offence which am dealing with occurred. Again the community, because of the fear instilled in it by the presence and use of handguns, was loathe to assist the police in their investigation. [48] review of local newspaper articles relating to gun related shootings in HRM since this incident shows that gun related shootings are on the rise. In 2007 there were 27 gun related shootings. In 2008 there were 29. This year to date there have been 40 such shootings. [49] The risk posed by such shootings to law abiding citizens who are going about their daily business is high and increasing. clear message must be sent to those in our community who believe in living by the gun and settling their disputes through the use of gun. The message is that there will be severe consequences for those who behave in such fashion. [50] The sentence imposed today should reflect society’s abhorrence of those who decide to live by the gun and use the gun to settle disputes. [51] Given the nature and circumstances of the offence and the character of this offender proper sentence should be at the high end of the mid-range set out by Blacklock J. in R. v. T.H. [52] Accordingly, a sentence of 9 ½ years should be imposed with a credit on a 2 for 1 basis for Mr. Johnston’s pre-trial custody. In this case the accused served approximately 17 months of pre-trial custody while on remand and he should be credited 34 months for this dead time. [53] Accordingly the global sentence to be imposed is one of years, months incarceration. [54] There will also be an order under s.109 prohibiting Mr. Johnston from possessing any firearm, crossbow, restricted weapon, ammunition and explosives. That prohibition order will be for life, and there will be DNA order. The Crown is to prepare those orders. Cacchione, J.

The defendant was found guilty of attempted murder after he used a handgun to shoot the complainant outside a bar. He had a previous record for non-violent offences., defendant sentenced to nine-and-a-half years imprisonment; aggravating factors included the defendant's possession and use of a handgun in an area where a number of people were close by and that a bullet had found its way into a nearby residence.

5_2009nssc218.txt

SUPREME COURT OF NOVA SCOTIA Citation: Sterling Farm Ltd. v. Sierra Forestry Inc., 2010 NSSC 154 Date: 20100419 Docket: Hfx. No. 284601 Registry: Halifax Between: Sterling Farm Limited, Richard Scott Sterling Applicant/Defendant v. Sierra Forestry Inc. Respondent/Plaintiff Judge: The Honourable Justice Arthur J. LeBlanc. Heard: November 26, 2009, in Halifax, Nova Scotia Counsel: Beth Newton, for the Applicant/Defendant Allen Fownes, for the Respondent/Plaintiff By the Court: [1] C & R Sterling Farm, one of the defendants in the main proceeding, moves for an order terminating an attachment order against it, pursuant to Rule 44.10. Sterling farm also seeks a change of the place of the proceeding, from Halifax to Windsor NS. [2] The main proceeding involves dispute between the plaintiff, Sierra Forestry, and the defendants, with respect to contract by which Sierra agreed to harvest timber and wood fibre from about 275 acres of land owned by the defendant Sterling Farm. The other defendant, Mr. Sterling, is (according to the statement of claim) beneficial owner of “all the shares, assets and undertaking” of Sterling Farm, and was (it is alleged) party to the harvesting contract, along with Sierra and Sterling Farm. [3] According to the statement of claim, after harvesting began, the plaintiffs entered “a formal Timber Cutting Agreement and Lease” relating to the same property. This agreement was dated October 18, 2006. The plaintiff claims that the October 2006 agreement referred to the wrong parcel of land, and seeks rectification, on the basis of mutual mistake, in the main proceeding. The agreement included time limit of one year, from September 16, 2006, until September 16, 2007. Sierra alleges that Mr. Sterling interfered with the timber harvesting “by threatening violence, making gestures and otherwise substantially interfering with the workers conducting the harvest operation,” so that the harvesting work had to be stopped. Sierra says the contract was frustrated and seeks damages. Sterling Farm disputes the claim. [4] Sierra obtained an attachment order, dated November 21, 2007, against the defendants, Sterling Farm and Richard Scott Sterling. This is motion by Sterling Farm to terminate the attachment order pursuant to Civil Procedure Rule 44.10 and to change the venue from Halifax to Windsor, pursuant to Rule 32.02(3). In the Notice of Motion, Sterling Farm also seeks discovery of Sierra’s director, Christopher Gourley. The parties informed me at the outset of the hearing that this issue was no longer matter of dispute. Change of the place of the proceeding [5] Civil Procedure Rule 32.02(3) provides that “[a] party may make motion to change the place of proceeding.” Sterling Farm submits that the proceeding concerns property in Hants County, near Windsor. Sierra operates from Stewiacke. Sterling Farm says neither party has a connection with Halifax, and argues that the matter should be heard in Windsor, in the area in which the dispute arose. It appears that Sierra does not oppose change to Hants County. In the hearing, I directed that applications would continue to be heard in Halifax, and the main action – i.e. the trial – would be held in Windsor. The motion to terminate the attachment order [6] The 2007 attachment order was obtained under Rules 49.01 and 49.02 of the Civil Procedure Rules (1972). Those rules provided, in part: Grounds of application for attachment order (1) Where defendant, (a) resides out of the jurisdiction, or is corporation that is not registered under the Corporations Registration Act; (b) conceals himself or absconds within the jurisdiction with intent to avoid service on him of any document; (c) is about to leave or has left the jurisdiction with intent to change his domicile, defraud his creditors, or avoid service of document; (d) is about to remove or has removed his property or any part thereof permanently out of the jurisdiction; (e) has concealed, removed, assigned, transferred, conveyed, converted or otherwise disposed of all or any part of his property with intent to hinder or delay his creditors, or is about to do so; (f) has fraudulently incurred debt or liability in issue in proceeding; plaintiff may, at or after the commencement of the proceeding and before judgment and as an incident of the relief claimed, make application for an attachment order in Form 49.04A. (2) When plaintiff files an affidavit which complies with rule 49.02 and bond that complies with rule 49.03, prothonotary on an ex parte application shall, unless the court otherwise orders, grant and issue an attachment order in Form 49.04A. ... Affidavit in support of attachment order 49.02. The affidavit of plaintiff or his agent in support of an attachment order shall, (a) set out facts showing (i) the plaintiff has good cause of action against defendant whose property is to be attached, and (ii) the existence of one or more grounds of attachment as set out in rule 49.01(1)... [7] For the purpose of comparison, the current Rule 44.02 provides: 44.02 Motion for attachment (1) party who claims for damages against another party, and has evidence establishing one of the following grounds against the other party, may make an ex parte motion to the prothonotary for an attachment order: (a) the other party resides out of Nova Scotia and does not appear to have assets in Nova Scotia, or assets that can be obtained by order or request of the court, sufficient to satisfy judgment for the amount of the claim; (b) the other party is corporation not registered under the Corporations Registration Act; (c) the other party evades delivery of the document originating the proceeding; (d) the other party leaves, or is about to leave, Nova Scotia with intent to defraud creditor or to avoid delivery of the document originating the proceeding; (e) the other party does anything to put an asset out of the reach of creditor, or is about to do so; (f) the other party fraudulently incurred debt or other liability at issue in the proceeding. (2) The motion must be supported by an affidavit and either the bond of recognized surety company or, unless the prothonotary permits otherwise, the party’s own bond with two or more sureties. [8] Civil Procedure Rule 44.10 permits motion to terminate an attachment order. It says, in part: Motion to judge 44.10 party, or sheriff, may make motion to judge to do any of the following about an attachment order: (a) terminate the attachment order, if the party who obtained it does not make sufficient efforts to bring the claim to final determination; (b) terminate the order, if the judge is satisfied the order is not required to secure the party who obtained it, there were not grounds for the order, or there are other good reasons for termination; (c) vary the order... [9] The significance of an attachment order was described in Nova Scotia Power Corp. v. AMCI Export Corp., 2005 NSCA 152 (CanLII), [2005] N.S.J. No. 478, where Freeman, J.A. said, for the court: 40 In dissenting judgment in Acan Windows Inc. v. Stanley, [1995] N.J. No. 323, in which the majority of the Newfoundland Court of Appeal upheld an attachment order under rules similar to those in Nova Scotia, Justice Marshall viewed attachment orders as intrusive incursions into the defendant's rights that should be strictly linked to the rationale requiring them and be limited by conditions restricting their accessibility. Residence was not an issue in that case. Justice Marshall stated: ... The justification and purposes, then, are to foil perceived attempts to frustrate the course of justice; or, in certain circumstances, to prevent its being impeded because of normal residency of the defendant outside of the jurisdiction. 41 While this statement is obiter, agree with this characterization of the purpose of the Rule making attachment orders available in certain circumstances against defendants living outside the jurisdiction. Such orders are not available against defendants who reside within the jurisdiction in the absence of perceived attempts to frustrate the course of justice... [10] Sterling Farm says Sierra did not establish that it attempted to frustrate the course of justice (as discussed by Freeman, J.A. in AMCI), noting, for instance, that it accepted service and filed defence. (1) Termination due to delay: Rule 44.10(a) [11] On the issue of delay, under Rule 44. 10(a), Sterling Farm claims that Sierra has not made “sufficient efforts to bring the claim to final determination” in the two years between obtaining the order and the hearing of this motion. In the Bond on Attachment, Sierra committed itself to “prosecute the proceeding herein without delay to judgment.” Sterling Farm says it has been inactive during that time on account of the attachment order. According to Sterling Farm, Sierra’s failure to proceed without delay is “prejudicial to the point of being oppressive.” Moreover, Sterling Farm says that Christopher Gourley, Sierra’s director and majority shareholder, is bankrupt, and that if the bankruptcy affects the control of Sierra, this could further slow the litigation. Mr. Gourley states that his assignment in bankruptcy led to him vacating the office of director, but that he remains president. He adds that Sierra has not made an assignment in bankruptcy, although it is not operational. [12] Sierra replies that the delay in scheduling discoveries resulted from requests by Sterling Farm’s counsel; that there have been demand for particulars, interrogatories and notice to admit; and “several exchanges of email and telephone calls between [counsel for Sterling Farms] and myself over the past two years, none of which culminated in production of documents until the late summer of 2009.” Sierra accuses Sterling Farm of inordinate delay in providing list of documents, which “was received by my office only on September 25, 2009,” despite Sierra having provided its documents “many months prior.” Sterling Farm notes that Sierra’s documents were provided in May 2009, and queries whether this can be considered gap of “many months”. [13] Sierra says there was never suggestion in previous communications that the matter was moving too slowly, and adds that despite requests from Sierra’s counsel, counsel for Sterling Farm had not provided list of available dates for discovery. In the circumstances, Sierra says, Sterling Farm cannot attribute the delay to recalcitrance on Sierra’s part. (2) Termination for other reasons: Rule 44.10(b) [14] Pursuant to Rule 44.10(b), the court may terminate an attachment order because “the order is not required to secure the party who obtained it, there were not grounds for the order, or there are other good reasons for termination.” (a) The order was not required as security [15] Sterling Farm goes on to argue that the attachment order, which was obtained pursuant to Rules 49.01 and 49.02 of the Civil Procedure Rules (1972), was not justified on the basis of any of the criteria set out in those rules. Rules 49.01 and 49.02 provided: Grounds of application for attachment order (1) Where defendant, (a) resides out of the jurisdiction, or is corporation that is not registered under the Corporations Registration Act; (b) conceals himself or absconds within the jurisdiction with intent to avoid service on him of any document; (c) is about to leave or has left the jurisdiction with intent to change his domicile, defraud his creditors, or avoid service of document; (d) is about to remove or has removed his property or any part thereof permanently out of the jurisdiction; (e) has concealed, removed, assigned, transferred, conveyed, converted or otherwise disposed of all or any part of his property with intent to hinder or delay his creditors, or is about to do so; (f) has fraudulently incurred debt or liability in issue in proceeding; plaintiff may, at or after the commencement of the proceeding and before judgment and as an incident of the relief claimed, make application for an attachment order in Form 49.04A. (2) When plaintiff files an affidavit which complies with rule 49.02 and bond that complies with rule 49.03, prothonotary on an ex parte application shall, unless the court otherwise orders, grant and issue an attachment order in Form 49.04A. ... Affidavit in support of attachment order 49.02. The affidavit of plaintiff or his agent in support of an attachment order shall, (a) set out facts showing (i) the plaintiff has good cause of action against defendant whose property is to be attached, and (ii) the existence of one or more grounds of attachment as set out in rule 49.01(1)... [16] Sterling Farm says it has “not acted in any way that necessitates security for Sierra”. [17] Sierra says the two defendants Sterling Farm and Richard Sterling “are or were intertwined,” and that Mr. Sterling purported to have authority to bind Sterling Farms, to take receipt of money under the contract and to authorize the construction of wood road and installation of culverts on the property. According to Sierra, the “taking of money” by Mr. Sterling, and the statement in its defence that Sterling Farm “had nothing to do with the timber harvest contract,” indicate fraud. The land is in the name of Sterling Farm, and Richard Scott Sterling purported to sign on behalf of Sterling Farm; as such, Sierra says, it is “within its rights to suppose [Mr. Sterling] would take steps to have the company put the land beyond the reach of Sierra as creditor.” According to Sierra, the appearance in the online property registry of the words “parcel changes underway” was an indication that the parcel affected by the dispute was being submitted for “migration and/or registration of documentation of some sort against the property, and which was done apparently as authorized by the owner of such parcel.” Sterling Farm submits that there is no evidence that the property noted to be undergoing “parcel changes” was being sold. [18] Sierra refers to other “background facts” that caused it to fear that Mr. Sterling “or those parties near to him, including James Dillman, seemed likely to be taking steps to put the assets of [Sterling Farm] beyond the reach of [Sierra] and to ‘frustrate the course of justice’ by their actions.” These “background facts” include notice of tax sale for “the property in which Richard Scott Sterling had an interest and certain buildings on which property, Mr. Gourley knew certain assets and equipment of [Sterling Farm] were stored.” Sierra also suggests that there had been fire in house on that property, allegedly set by Mr. Sterling; that Mr. Sterling “ended up in [Provincial Court] about the same”; that Sterling Farm had not operated since the death of Mr. Sterling’s father, and that Mr. Sterling “had set about logging the woodland property of the company, of which he alleged to have had control and management” under his grandmother’s will. Further, Sierra submits, the fact that James Dillman is now president of Sterling Farm suggests that Mr. Sterling is not disinterested party, despite statements in Sterling Farm’s defence. Sterling Farm says it has no relation to the property put up for tax sale. (b) No grounds for an attachment order [19] Sterling Farm says Sierra has not established grounds for an attachment order pursuant to Rule 44.10(1). Sterling Farm submits that it “does not operate nor does it plan to operate out of the jurisdiction.” It did not avoid service, and has not dealt with its property with intent to hinder or delay its creditors. While Mr. Gourley’s affidavit alleged that action was being taken to migrate the title of several properties owned by Sterling Farm, “perhaps preparatory to selling or otherwise encumbering said properties to put the same beyond the reach of creditor such as my company.” Sterling Farm says there must be evidence of such conduct, not mere suspicion, in order to justify an attachment order. Further, it is necessary to establish both that there is an attempt to transfer property, and that there is an intent to frustrate justice. [20] Sterling Farm refers to Newfoundland (Attorney General) v. Nalcap Holdings Inc., [1994] N.J. No. 334 (Nfld. C.A.), where an attachment order was vacated. While it was established that the defendant had transferred assets, the Court of Appeal concluded that the plaintiff had not established the necessary intent. O’Neill, J.A. said, for the court: 23 In the application for the attachment order, the respondent had relied upon the assignment agreement, simpliciter, as supporting the existence of the ground of attachment set out in rule 28.02(1)(e). The trial judge accepted that position, noting that what was transferred by the agreement between the appellant and Cancapital was "the only asset which the [appellant] had within this province." 24 In his decision, the trial judge, having stated that the "assignor's intention must be determined objectively", concluded: "If the effect of the assignment is to hinder or delay creditors, an intention to hinder or delay is apparent and will be presumed". With the greatest respect for the trial judge, am unable to agree. 25 The whole principle of the attachment of defendant's assets before judgment is contrary to the ordinary sequence of instituting action, obtaining judgment and then executing on the judgment. 26 In my view, the rules under which pre‑judgment attachment order may be obtained must be strictly construed. There is no irrebuttable presumption that, because the effect of an assignment may hinder or delay creditors, the assignment was made with that intent. [21] Based on this reasoning, Sterling Farm submits, even if it was established that it intended to sell property, this would not lead inevitably to the conclusion that this was being done with intent to hinder or delay potential judgment creditor. [22] Sterling Farm goes on to add that Mr. Gourley’s affidavit relied on statements from Sterling Farm’s defence, without attaching the defence to the affidavit. As such, it submits, those statements should not have been relied upon. The authority for this conclusion is McNeil's Transport Ltd. v. Caribou Leasing Ltd. (1991), 1991 CanLII 7021 (NL SC), 96 Nfld. P.E.I.R. 288, [1991] N.J. No. 255 (Nfld. S.C.T.D.), where the court said: The decision of Steele, J. in [Seaward Seafoods Company Limited v. Resource Developers Limited (1988), 1988 CanLII 5519 (NL SC), 70 Nfld. P.E.I.R. 242] makes it clear that the facts grounding the application must be set out in the affidavit. Though there is authority otherwise in other jurisdictions (eg. Shwery v. Warstar Resources Inc. (1984), 51 B.C.L.R. 166) see no objection in principle to attaching the statement of claim to the affidavit nor do read the Seaward Seafoods case as prohibiting the necessary information being provided in the statement of claim if it were attached as an exhibit to the affidavit. By rule 48.03 an exhibit annexed or otherwise attached is to be identified by the person before whom it was sworn and contain certificate. If the exhibit is not stated to be attached or annexed it must still contain certificate and be left with the Registrar. mere reference to other documents does not comply with the rule... [23] I conclude the affidavit of February 28, 1991 does not properly incorporate the contents of the statement of claim. also note the deponent does not say the contents of the statement of claim are true. [24] The court refused to permit the plaintiffs to file supplementary affidavit to correct this omission, stating: [s]ome might argue that am being too technical in my interpretation of rule 28. But the plaintiffs are seeking remedy before the Court has adjudicated on the issues between the parties. Prejudgment attachment is an extraordinary remedy. For that reason courts have required strict (some have said meticulous) compliance with the requirements of the enabling legislation. [25] Sierra maintains that it is not necessary to attach “publicly-filed Court document” such as the defence, arguing that “[a] reference to another document is not the same as reference to Defence filed in an action.” Sierra’s position appears to be that McNeil’s Transport should be distinguished on the basis that the document involved in that case was statement of claim, while in this case it is defence. do not see how this is relevant distinction. [26] Sierra denies that the attachment order caused Sterling Farm to shut down, asserting that there is no “financial evidence of operations being interrupted...,” while it is Mr. Gourley’s evidence that Sterling farm “had been out of operation for several years prior to Sierra entering into the timber harvesting contract with [Mr. Sterling] and [Sterling Farm].” Sterling Farm disputes this, submitting that the attachment order has hindered or prevented it from resuming operations. The parties agreed that the Court could take judicial notice that the existence of an attachment order could be of concern to banks in considering whether to advance financing to the company. [27] Sierra’s position appears to be that Sterling farm’s defence was filed by its “then president,” Ruby Sterling, who was “located in Montreal, Quebec, according to the face of that Defence” and was about to “assign, transfer, convey, convert or otherwise dispose of all or any part of his property with intent to hinder or delay his creditors.” Sierra goes on to submit that there is no proof that Mr. Sterling and Sterling Farm were “of one mind” when they entered the timber harvest contract with Sierra, there is “at least seriously arguable issue” that Mr. Sterling had the authority to bind Sterling Farm. Of which he was shareholder and manager. According to Sierra, the court can infer from the circumstances that the Property Online notation that “parcel changes are underway” would have caused Mr. Gourley “to have reasonable fear..., given the tax sale of lands of [Mr. Sterling], that movement was afoot to sell property of [Sterling Farm] so as to produce enough cash to be able to pay those taxes.” note Sterling Farm’s position, set out above, with respect to the significance of the alleged parcel changes and tax sale. (c) other good reasons for an attachment order [28] Sterling Farm submits that the attachment order is serious intrusion, to the point that the company is not operating and will soon cease operation for good. Such an oppressive measure, it submits, demands high threshold of proof that the party involved has attempted to foil or frustrate the course of justice. As an example, Sterling Farm cites Avedis Agencies Ltd. v. Swapper's Furniture Annex Ltd. (1991), 1991 CanLII 4214 (NS SC), 115 N.S.R. (2d) 30, [1991] N.S.J. No. 600 (S.C.T.D.), where the court maintained an attachment order despite expressing concern with the “drastic result” that “the respondents' business was closed down as result of the execution of the attachment order.” It was established that the defendant had been transferring assets in an attempt to hinder or delay payment to the manufacturer. Noting that “the extent of the seizure may have rendered impractical the continued operation of the respondents' business,” Tidman, J. added, “[i]f that is not the case and the respondents' business may be carried on without affecting the plaintiffs security would be prepared, upon application, to consider modifying the writ to such an extent which would permit the applicant to continue in business.” Conclusion [29] I am not satisfied that Sierra has established conduct on the part of Sterling Farm to justify the maintenance of the attachment order. An attachment order is an intrusive pre-trial remedy, and I am satisfied that its existence will hinder any attempt by Sterling Farm to resume or expand its operations. While Sierra has asked the court to pierce the corporate veil and regard Mr. Sterling and Sterling Farm as being intertwined, am not satisfied that it has shown any principled basis to do so. The mere allegation of a connection between the individual and corporate defendants is not sufficient reason to dispose of the corporate veil. [30] Ultimately, I do not believe that the plaintiff has established any of the grounds available under the rules governing attachment orders. An attachment order should not be maintained on the basis of suspicion and supposition, which is the essence of the plaintiff’s position in support (for instance, the supposition relating to the significance of the property online entry). Both the former Rule 49.01 and the current Rule 44.02 are clear in requiring the applicant to establish facts, not allegations or suspicions. On that basis, I am satisfied the attachment order must be terminated. [31] I award costs to the applicant of $1,000 payable in any event in the cause.

The corporate defendant moved (under Rule 44.10 of the 2008 Rules) for an order terminating an attachment order made against it, and under Rule 32.02(3) to change the venue from Halifax to Windsor. The latter was not opposed. There was also an issue regarding an affidavit filed by the respondent, which referenced but did not attach the applicant's defence. The respondent argued it was unnecessary to attach a document already filed with the court. Change of venue granted in part: the applications will continue to be heard in Halifax, but the trial will be held in Windsor as requested. Neither party has a connection to Halifax. The respondent operates from Stewiacke and the dispute arose in Hants County. The attachment order is terminated, with costs of $1,000 to the applicant. An attachment order is an intrusive pre-trial remedy and will hinder the corporate applicant's attempts to resume/expand operations. Here there is no conduct to justify maintaining the order. The mere allegation of a connection between the individual and corporate defendants is insufficient to cause the court to pierce the corporate veil. The respondent has failed to establish any of the relevant grounds governing attachment orders. The Rules require facts, not allegations or suspicions. The affidavit in question was flawed. It should have attached the defence in order to properly incorporate the references to it.

6_2010nssc154.txt

Editors’ note: Erratum released March 2, 2010. Original judgment has been corrected, with text of erratum appended. NOVA SCOTIA COURT OF APPEAL Citation: Robinson v. Morrell Estate, 2009 NSCA 127 Date: 20091210 Docket: CA 305792 Registry: Halifax Between: Anne Robinson v. Susan Elaine Ostrom, Executrix of the Estate of Ezra Morrell Susan Elaine Ostrom, Walter Ostrom and Ingrid Ostrom Respondents Judge: The Honourable Justice Oland Appeal Heard: September 9, 2009 Final Submissions Received: November 16, 2009 Subject: Wills Separation Agreements Renunciation of Testamentary Gifts Summary: A couple signed a separation agreement which included a provision whereby they agreed to renounce and waive any claim in the estate of the other and any right to share in the estate of the other. When they divorced, its terms were incorporated in the corollary relief judgement. When he died, the former husband had not changed his will which left the residue to his former wife. The Chambers judge held that the separation agreement did not revoke the will and accordingly, she was entitled to the testamentary gift. The mother of the deceased appeals. Issue: Whether, before testator’s death, person can contractually obligate himself or herself to renounce testamentary gift. Result: Appeal dismissed. The Chambers judge’s reasoning was flawed. However, the appellant failed to produce any legal authority that a contractual promise to renounce, given for consideration before the death of a former spouse, binds a person to renounce a testamentary gift after his death. Even if the former spouse were so bound, it does not appear that there is any privity of contract which would allow the appellant here, who was not party to the separation agreement, to enforce the separation agreement. 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 15 pages. NOVA SCOTIA COURT OF APPEAL Citation: Robinson v. Morrell Estate, 2009 NSCA 127 Date: 20091210 Docket: CA 305792 Registry: Halifax Between: Anne Robinson v. Susan Elaine Ostrom, Executrix of the Estate of Ezra Morrell Susan Elaine Ostrom, Walter Ostrom and Ingrid Ostrom Respondents Judges: Saunders, Oland, Fichaud, JJ.A. Appeal Heard: September 9, 2009, in Halifax, Nova Scotia Final Submissions Received: November 16, 2009 Held: Appeal is dismissed with costs per reasons for judgment of Oland, J.A.; Saunders and Fichaud, JJ.A. concurring. Counsel: Timothy Matthews, Q.C., for the appellant David Grant, for the respondents Reasons for judgment: [1] In his will, the late Ezra Morrell left his wife, Ingrid Ostrom, the residue of his estate. A few years later the couple signed a separation agreement. They subsequently divorced. After Mr. Morrell’s passing, the executrix of his estate applied for an interpretation of the will and separation agreement. In decision released on October 7, 2008 and reported in 2008 NSSC 295 (CanLII), Justice Arthur W.D. Pickup held that the separation agreement did not revoke the will and, accordingly, Ms. Ostrom is entitled to the gift under Mr. Morrell’s will. [2] Mr. Morrell’s mother, Anne Robinson, appeals the order dated December 9, 2008. [3] The material facts are not in dispute. Ezra Morrell and Ingrid Ostrom were married in 2001. In his Last Will and Testament dated October 6, 2002, Mr. Morrell appointed Ms. Ostrom’s mother, Susan Ostrom, the sole Executrix and Trustee. After directing the payment of his debts, funeral and testamentary expenses, he left the residue to Ingrid Ostrom. The will also provided that should his wife predecease him, the residue was left to her parents, Walter Ostrom and Susan Ostrom, in equal shares. [4] In September 2005, Mr. Morrell and Ms. Ostrom separated. On July 31, 2006, they signed separation agreement. Ms. Ostrom was represented by legal counsel; Mr. Morrell waived independent legal advice. Among other things, the separation agreement addressed spousal support, their bank accounts, automobiles, registered retirement savings plans, pensions, and debts. It provided for the conveyance by Ms. Ostrom of her interest in the matrimonial home to Mr. Morrell for $40,000, and for the transfer of certain personal property by her to him for $2,500. [5] The separation agreement also referred to joint life insurance policy on their respective lives from The Canada Life Assurance Company in the face amount of $250,000 (the “Canada Life Policy”). The Canada Life Policy provided that the death benefit would be paid on the death of the first to die, and be payable to the surviving life insured. The separation agreement read in part: 14(b) Except as provided in this Agreement to the contrary, the Wife consents to the Husband designating whomsoever he wishes to be beneficiary of any life insurance policies on his life even though she may now be designated (by operation of law or previous action of the Husband) as an irrevocable beneficiary of such policies. In the absence of new designation, proceeds of any insurance on his life now payable to her will on his death be payable to his estate, unless otherwise specifically provided herein. [emphasis added] [6] The following provision of the separation agreement is critical to this appeal: Waiver of Estate Claims 20 The parties hereby forever renounce and waive any claim in the estate of the other and any right to share in the estate of the other, whether such claim or right arises under statute or otherwise, including the right to administer the estate of the other in the event of the death of that party. [7] The document also read: Full and Final Settlement 25 The parties acknowledge that the within Agreement is made with full and final satisfaction of their respective rights and obligations of division of matrimonial and non-matrimonial assets and any other remedy pursuant to the Matrimonial Property Act of Nova Scotia and for relief under the Divorce Act of Canada, the Family Maintenance Act of Nova Scotia, and the Pension Benefits Act of Nova Scotia, Pension Benefits Division Act of Canada or any similar legislation in any jurisdiction and any other remedies arising out of their marriage to each other. [8] On June 19, 2007, Ezra Morrell and Ingrid Ostrom divorced. Their separation agreement was incorporated by reference into the corollary relief judgment. [9] On January 21, 2008 Mr. Morrell died in an automobile accident. He was 31 years of age. He had neither revoked nor changed his will, nor had he revoked or changed the beneficiary designation in the Canada Life Policy. At the date of Mr. Morrell’s death, divorce did not revoke the bequest of beneficial interest in property to testator’s former spouse. Since then, s. 19A of the Wills Act, R.S.N.S. 1989, c. 505, as amended, has been enacted. [10] Susan Ostrom, the executrix named in Mr. Morrell’s will, obtained grant of probate on February 4, 2008. That same month, Ingrid Ostrom signed renunciation of all her rights under the Canada Life Policy. The death benefit was paid to the estate of the late Mr. Morrell. According to the inventory of estate assets filed in the Probate Court, the total value of that estate, including the $250,000 life insurance death benefit, is less than $275,000. [11] The executrix applied for the interpretation of the will and separation agreement to determine whether clause 20 of the separation agreement dissentitled Ingrid Ostrom to the bequest of the residue of Ezra Morrell’s estate and, if so, whether Susan Ostrom and Walter Ostrom are the residual beneficiaries of the estate or an intestacy resulted. The Chambers Judge’s Decision [12] The chambers judge referred to ss. 22 and 23 of the Wills Act: Effect of conveyance or other act 22 No conveyance or other act made or done subsequently to the execution of will of any real or personal property therein comprised, except an act by which such will is revoked as in this Act mentioned, prevents the operation of the will with respect to such estate or interest in such real or personal property as the testator has power to dispose of by will at the time of the testator's death. Time of which will speaks 23 Every will shall be construed, with reference to the real and personal property comprised in it, to speak and take effect as if it had been executed immediately before the death of the testator, unless contrary intention appears by the will. In determining whether s. 20 of the separation agreement was effective to release and waive any right to inherit under the will, he principally relied on two decisions, namely, Billing v. Rideout (1993), 1993 CanLII 8384 (NL SC), 109 Nfld. P.E.I.R. 271; 1993 CarswellNfld 71 (Nfld. S.C.T.D.) and Eccleston Estate v. Eccleston (1999), 221 N.B.R. (2d) 295; 1999 CarswellNB 534 (N.B.Q.B.). The latter considered, among other cases, Billing, supra and Pearson v. Pearson (1980), 1980 CanLII 3110 (MB CA), Man. R. (2d) 404, E.T.R. 12 (Man. C.A.). [13] The chambers judge held: [15] am satisfied that while Ms. Ostrom may have waived any claim against the estate of her late husband and the right to share in it, it is not clear from the wording of s. 20 that she waived her right to claim under the will if her husband chose not to alter his will so as to eliminate her as beneficiary. There is no reference to will in the separation agreement. [16] Section 20 of the separation agreement does not, in my view, affect the right of Ms. Ostrom to be the sole beneficiary under the will. [22] Counsel for Ms. Robinson agreed that the will was valid. In the absence of any challenge to the will, there would need to be compelling reasons to override the testator’s intentions. The language of the separation agreement, which did not purport to revoke the party’s wills, and did not use the word “will” in the section dealing with estate claims, does not permit this conclusion. It would have been possible for the separation agreement to include clear waiver of the right of the parties to inherit under each other’s wills, if this was their intention. am not satisfied that any intention can be found in the language of the separation agreement. [23] As the majority said in Pearson, supra, “[h]ad the deceased made new will after the settlement with his wife, conferring benefits upon his wife, no one would question that she would be entitled to receive the benefits conferred by that new will. The failure to revoke the previous will amounts to the same thing. It is constant affirmation of his choice to confer benefit ....” [24] The above cases make it clear that testator’s intentions, as expressed in valid will, should not be lightly interfered with. spouse’s right to claim against the estate or to share in the estate appears to be distinct from the testator’s right to confer benefit voluntarily. The separation agreement did not revoke the will, nor does it appear to have affected either party’s ability to dispose of their estate as they saw fit. Therefore, the gift to Ms. Ostrom will stand. Having determined that the separation agreement did not revoke the will nor affect either party’s ability to dispose of their estate as they saw fit, the judge did not decide the second issue before him which pertained to the distribution of Mr. Morrell’s estate if Ingrid Ostrom was not entitled to the gift of the residue. [14] Anne Robinson, the mother of the late Mr. Morrell, appeals. She would have an interest in his estate as an heir-at-law if none of Ingrid Ostrom, Walter Ostrom and Susan Ostrom are entitled to take under the will and an intestacy should result. [15] The grounds of appeal as set out in the notice of appeal and the appellant’s factum read: The learned Trial Judge erred in law: 1. By failing to answer the question concerning the interpretation of the Separation Agreement, and failing to give any meaning to the express words used: 20. The parties hereby forever renounce and waive any claim in the estate of the other and any right to share in the estate of the other, whether such claim or right arises under statute or otherwise, including the right to administer the estate of the other in the event of the death of that party. 2. By failing to consider whether Ingrid Ostrom had immediately renounced her right to share in the deceased’s estate under the Will by signing the Separation Agreement or whether she had contractually bound herself to renounce any inheritance after the death of Ezra Morrell. 3. By purporting to answer different question namely, whether the Will was revoked by the Separation Agreement; 4. By failing to answer the question [(II) above] concerning the interpretation of the Will in these specific circumstances. [16] On questioning by the court at the very outset of the hearing of the appeal, counsel for the appellant withdrew his arguments based on immediate renunciation by Ms. Ostrom when she signed the separation agreement. He candidly acknowledged that this ground could not succeed. Later in my decision, will address the jurisprudence in this regard. [17] The appellant then collapsed the remaining grounds of appeal into single ground: whether Ingrid Ostrom had contractually bound herself to renounce any inheritance after the death of Ezra Morrell. If this court should find that she had, then the appellant asked this court to decide whether Walter Ostrom and Susan Ostrom would take pursuant to the will or the estate would be divided as an intestacy. [18] No legal authorities were provided by either party either in support of, or contrary to, the proposition that before testator’s death, person can contractually obligate himself or herself to renounce testamentary gift. The court asked for post-hearing submissions, which both parties provided. Standard of Review [19] Both issues raised on this appeal pertain to the interpretation of legal documents, namely the separation agreement and the will. It is undisputed that these are questions of law for which the standard of review is correctness. [20] The issue before the chambers judge concerned the effect of s. 20 of the separation agreement, if any, on Ingrid Ostrom’s entitlement pursuant to Mr. Morrell’s will. For convenience, reproduce the relevant portion below: 20. The parties hereby forever renounce and waive any claim in the estate of the other and any right to share in the estate of the other, whether such claim or right arises under statue or otherwise [21] In his decision, the judge relied on Billing, supra and on Eccleston, supra. With respect, his reliance on these decisions to determine that the gift to Ingrid Ostrom in Mr. Morrell’s will should stand was misplaced. Both cases are distinguishable. [22] In Billing, supra, the separation agreement provided that the husband and wife released each other from all claims that he or she may have had or afterwards may acquire “in the estate of the other upon the other dying intestate .”. The clause in question was confined to release of rights of inheritance only on intestacy. It did not address the right of inheritance under will. [23] In Eccleston, supra the domestic contract the parties executed prior to their divorce provided that each released and discharged “all rights that he or she has or may hereafter acquire under the laws of any jurisdiction in the estate of the other.” That language expressly limited the releases to any statutory rights. It is not broad enough to include rights that might be acquired by will or contract. Like Billing, supra, Eccleston, supra did not deal with testamentary instruments. As result, these cases do not support the determination the judge reached. [24] As indicated earlier, the appellant has resiled from any argument that Ingrid Ostrom’s execution of the separation agreement, and s. 20 of that document, amounted to an immediate renunciation or one which springs into effect on the death of the testator or otherwise. Rather, she argues that by signing the separation agreement, Ms. Ostrom had covenanted for valuable consideration to renounce any inheritance after the death of Mr. Morrell. [25] That person may renounce or disclaim gift is well established. Abbott, C.J., in Townson v. Tickell, (1819), B. Ald. 31, 106 E.R. 575 stated at pp. 576-577: The law certainly is not so absurd as to force man to take an estate against his will. Prima facie, every estate, whether given by will or otherwise, is supposed to be beneficial to the party to whom it is given. Of that, however, he is the best judge, and if it turn[s] out that the party to whom the gift is made does not consider it beneficial, the law will certainly, by some mode or other, allow him to renounce or refuse the gift. ... man “cannot have an estate put into him in spite of his teeth”. [quoting Ventris, J., in Thomson v. Leach, Ventris 198.] [26] However, until the death of the testator, person has nothing more than an expectancy and one cannot disclaim or renounce an interest in something to which he or she has no legal interest. In response to the court’s questions and the jurisprudence, the appellant readily and correctly withdrew her argument that, when she signed the separation agreement, Ms. Ostrom had immediately renounced any interest in the testamentary gift. [27] See, for example, Wolfson Estate v. Wolfson (2005), 22 E.T.R. (3d) 255 (Ont. S.C.J.). There daughter made voluntary disclaimer prior to her mother’s death. In refusing her application to set aside the disclaimer, McMahon J. stated at p. 261: The Applicant cannot disclaim or renounce an interest in something she has no legal interest in. The Applicant's interest under the Deceased's will did not crystallize until the date of the Deceased's death Up until that date, the Applicant had nothing more than spes successionis or an expectancy. [28] strong statement of this principle is found in Re Smith, [2001] All E.R. 552 (Ch.). Years before his mother’s passing, son signed disclaimer of all benefit in his favour arising upon her death. In determining whether the disclaimer in advance of the testator’s death was effective as disclaimer, the deputy judge of the High Court stated: [9] In the normal disclaimer case the disclaimer operates in relation to some actual transaction that has taken place or which person has taken steps to try to bring about. In the context of wills, the will has been drawn, and the testator has died. In the context of an inter vivos gift, the donor has taken steps in order to divest himself of the property in favour of the donee. At that point there is real interest which the donee can accept or disclaim, and on which an avoidance can operate. [10] Now contrast case such as the present. At the date of the disclaimer the intended donee has no interest whatsoever. He or she has mere expectancy. Any existing wills might or might not be revoked or varied; any existing intestacy might or might not persist until the death of the deceased. There are no proprietary rights, or other rights to control the destination of the estate in any way. What, then, is there to be disclaimed, or (as matter of analysis) avoided? In my view the answer is nothing. disclaimer bites on something that can be disclaimed; on transaction which can in some way be said to be an attempt to make gift. The testamentary intentions of living person do not fall within that category. Until the death there is simply nothing that can be disclaimed and any attempt to disclaim is invalid and ineffective. [29] An income tax case, Biderman v. Canada, [2000] F.C.J. No. 194, 2000 D.T.C. 6149 (C.A.) is also illustrative. There husband signed two disclaimers of any inheritance under his wife’s will, one prior to and the other almost three years after his wife’s death. Letourneau, J.A., writing for the court, determined that the first disclaimer was legally ineffective: 12 In the present instance, the first and informal disclaimer made in 1991 by Mr. Biderman is, believe, legally ineffective and of no avail to him. Not unlike the civil law in Quebec, the common law requires that disclaimer in order to be effective be made after the death of the legator, that is to say when the legatee is entitled to inherit. While the Civil Code of Quebec has specific provision expressly prohibiting disclaimer with respect to succession not yet opened, the nature of disclaimer at common law and its retroactive effect to the date of death of the deceased lead to the same result. In Bence v. Gilpin, cited in Re McFaden and in McLean Kerr v. Hrab, Kelly C.B. wrote: disclaimer to be worth anything must be an act whereby one entitled to an estate immediately and before dealing with it renounces it whereby in effect he says: "I will not be the owner of this property". [30] In the case under appeal then, when she signed the separation agreement, Ms. Ostrom could not and did not immediately renounce any interest in the estate of the late Mr. Morrell pursuant to his will. At that time, there was nothing more than an expectancy. In the words of Re Smith, supra, there was nothing on which renunciation could “bite”. [31] Now that Mr. Morrell has died, Ms. Ostrom could renounce or refuse her interest as residuary beneficiary under his will. However, she does not wish to do so. On the contrary she seeks to take the benefits for herself pursuant to that will. [32] The appellant argues that she cannot do so, and that Ms. Ostrom is contractually bound to renounce. She submits in her factum: 33. Clause 20 binds both parties to renounce benefits from the other's estate. It is contract supported by consideration and it does not violate public policy. Although unusual, it is not unprecedented for beneficiary to renounce some or all benefits conferred upon him or her by will. Particularly for tax planning purposes, disclaimers of interest are effective and well recognized. The legal effect of the refusal to accept the gift is not to revoke the will, but rather to cause the gift to fail. Ingrid Ostrom has covenanted in clause 20 to waive and renounce her right to share in Ezra Morrell's estate. [33] In support of her argument that, before testator’s death, person can obligate herself to renounce gift under the will, the appellant relies on Re Smith, supra, Biderman, supra, and Wolfson Estate, supra. She also refers to several American cases which will address later in my decision. In essence, the appellant’s submission is that there is case law in support of her proposition and that the separation agreement was for consideration. [34] The case law upon which the appellant relies is passage from Re Smith, supra which immediately follows that quoted in [28] above, which established that disclaimer of future interest has no legal effect. The extract upon which the appellant bases her submissions reads: [11] There is principle in relation to disclaimers that they can only be effective if they are 'made with knowledge of the interest alleged to be disclaimed, and with an intention to disclaim it' (see Naas Westminster Bank Ltd [1940] All ER 485 at 504, [1940] AC 366 at 396, per Lord Russell of Killowen). While do not rely on the first half of that statement as my principal reason for saying that disclaimers in advance of the death are not operative, it might be said to be supporting factor. For firmer support prefer the analogy of gifts of expectancies or future property. They are invalid in law, and can at most take effect as contract to convey the property when it falls in, which equity will enforce if consideration is provided (see Re Ellenborough, Towry Law Burne [1903] Ch 697). Since no consideration was provided by Frank (or by anyone else), there is no question of his being able to treat the disclaimer as an agreement and enforce it accordingly. In any event, it is hard to treat it as an agreement when it is on its face unilateral document without any inter partes or bilateral element. [Emphasis added] [35] Since the disclaimer in Re Smith, supra was voluntary, the judge did not need to decide whether one given for consideration had any binding effect and did not do so. In any event, the wording he used is hardly definitive, but rather was limited or confined by the qualifier “can at most take effect”. The passage amounts only to an indication that, in deciding different fact situation, the judge mused about the possibility of pre-death contractual obligation to disclaim gift under will. Re Smith, supra cannot be relied upon as establishing that principle. [36] The situation is the same for the authority cited within that decision for that premise, namely Re Ellenborough, supra. There Miss Towry Law had voluntarily assigned to trustees all her future interest in the estate of her brother, Lord Ellenborough. On his death, intestate, she was the heiress of his estate. She sought to retain it and applied to court for declaration that she was not bound by her assignment. At p. 700, Buckley, J. stated: The deed was purely voluntary. The question is whether volunteer can enforce contract made by deed to dispose of an expectancy. It cannot be and is not disputed that if the deed had been for value the trustees could have enforced it. If value be given, it is immaterial what is the form of assurance by which the disposition is made, or whether the subject of the disposition is capable of being thereby disposed of or not. An assignment for value binds the conscience of the assignor. Court of Equity as against him will compel him to do that which ex hypothesi he has not yet effectually done. Future property, possibilities, and expectancies are all assignable in equity for value: Tailby v. Official Receiver. But when the assurance is not for value, Court of Equity will not assist volunteer. Again, as in Re Smith, supra this discussion of disclaimer or renunciation with latent effect enforceable in equity was not applicable on the facts of the case which dealt with voluntary assignment, and so was not followed. The appellant herself describes this passage as “comments” made by the judge. In addition, Re Ellenborough, supra dealt not with disclaimer or renunciation, but with an assignment. Further, the case it referred to, Tailby v. Official Receiver, (1888), 13 App. Cas. 523 (House of Lords) is commercial law case on the assignment of book debts, and factually bears no similarity to the case under appeal. [37] As shown earlier in this decision, Biderman, supra and Wolfson Estate, supra stand for the principle that voluntary disclaimer of future interest has no legal effect. In the result, the appellant has not provided any Canadian and English authority in which renunciation or disclaimer executed before the death of the testator, whether without consideration or for consideration, has been found to be legally effective. [38] Although not raised by either party, there is Canadian case where person was found to be contractually required to refuse testamentary gift. However, the context was very different from that in this appeal. The case is Assh v. Canada (Attorney General), 2006 FCA 358 (CanLII), 274 D.L.R. (4th) 633. lawyer with Veterans Affairs Canada was left bequest of $5,000 by pensioner whom he had assisted. There was no question of any impropriety on his part and he reported it immediately. Pursuant to the Conflict of Interest Code which was incorporated into his employment contract, he was instructed to decline. The majority of the Federal Court of Appeal rejected Assh’s argument that this gift fell within an exception. At 88, they noted that their decision was contrary to the testamentary intentions of the testator and the principles of testamentary freedom. [39] The facts in Assh, supra involve public employees, employment law, conflicts of interest, and contractual obligation to refuse gifts generally, not just those under will or inheritances due to intestacy. That context is far removed from the issue on which this appeal turns which pertains to refusal or renunciation of benefit under will in the future. [40] In support of her position, the appellant refers to case law from the United States, namely Re Cook’s Will (1926), 244 N.Y. 63, 154 N.E. 823 (Court of appeals of New York), Re Ginsburg Estate (1988), 142 Misc. 2d 192, 536 N.Y.S. 2d 649 (Surrogate’s Court, New York), and Estate of Carmen Prime, (2000), 184 Misc. 2d 796, 710 N.Y.S. 2d 810 (Surrogate Court, New York). These American decisions are not binding upon me. Furthermore, they are distinguishable and do not find their analysis persuasive. [41] Re Cook’s Will, supra concerned the validity of will. The agreement was not renunciation of gift thereunder, but one not to contest, or join with others in contesting, the will. In Ginsberg Estate, supra separation agreement included provision where the wife renounced all interest under any will executed by the husband prior to the execution of the agreement itself. When the husband died, his will predated the separation agreement and left her considerable portion of his estate. The Surrogate Court judge found that despite the lack of precedent, separation agreement may constitute “renunciation” under the New York statute, Estates Powers and Trusts Law 2-1.11(b)(2). The wording in the separation agreement under appeal is different and we have no similar legislation. In Estate of Carmen Prime, father and son drafted bill of sale regarding business assets for consideration of one dollar. Among other things, the son agreed to renounce “any share in any future estate” of the father. Years afterwards, the father made two wills which left the son bequest or residuary interest. The Surrogate Court judge observed that the facts and wording were different from Re Cook’s Will, supra and stated that it appeared that by naming him in his wills, the father unilaterally waived the son’s earlier renunciation. Accordingly, the son had standing to contest third will. Here, we have no will executed after the separation agreement. [42] In addition to case law, the appellant argues by analogy. Her supplementary factum read in part: 18. By analogy, consider the terms of the Morrell‑Ostrom separation agreement dealing with the beneficiary designation under the life insurance policy. Each spouse agreed that the other could unilaterally change the beneficiary designation, but if he or she did not do so prior to death, the parties agreed that (notwithstanding the spousal designation) the death benefit would be paid to the estate of the deceased. Ingrid Ostrom signed release to implement this agreement. But, properly analyzed, is not beneficiary designation merely an "expectancy"? It is not property right. It can amount to nothing, if (i) the policy lapses; or (ii) the designation is revoked; or (iii) the beneficiary predeceases the life insured. But, such promise, given for valuable consideration, is enforceable. 19. By further analogy, consider the standard terms in all separation agreements, releasing statutory claims on death: Intestate Succession Act, Testator's Family Maintenance Act, Matrimonial Property Act. Are such claims not merely "expectancies"? They are not property rights. They are contingent and may vanish if (i) the parties are divorced at the time of the death of one of them; or (ii) the potential claimant has predeceased the other spouse; or (iii) in the case of potential intestacy, the other spouse executes valid will; or (iv) the other spouse dies without assets. Yet such promises, given for valuable consideration, are enforceable as releases. In order to rely on these analogies, would have to accept or decide that beneficiary designation under life insurance policy or certain statutory claims constitute mere expectations which nevertheless are enforceable if given for valuable consideration. It is not necessary nor would it be appropriate for me to do so. That is not the question on this appeal. [43] Finally, while acknowledging that voluntary disclaimers in advance of death are void, the appellant argues that contractual renunciation supported by consideration should be upheld: 21. Clause 20. of the Separation Agreement is fully supported by consideration. Therefore, in equity, it can be construed either as an immediate renunciation [which attaches to the estate of the deceased ex‑spouse at death], or as contractual promise to renounce after the death of the ex‑spouse. In either case, it is binding on the survivor ex‑spouse. Otherwise, the result would be unconscionable and would allow the survivor ex‑spouse to breach the contract. [Emphasis in the original] However, the appellant has failed to produce any legal authority that a contractual promise to renounce, given for consideration before the death of a former spouse, binds a person to renounce a testamentary gift after his death. [44] The remedy the appellant seeks is specific performance of the alleged renunciation in clause 20 of the separation agreement. That agreement is, of course, contract. The parties to the contract were Ezra Morrell and Ingrid Ostrom, and its clause states that its terms are binding on their heirs, administrators, executors, successors and assigns. The appellant was not party to the separation agreement, nor is she one of the persons named under clause 2. Even if it had been determined that Ingrid Ostrom was contractually bound to refuse the testamentary gift, there does not appear to be any privity of contract between the appellant and Ingrid Ostrom which would allow the appellant to enforce clause 20 of the separation agreement. It is the executrix who is permitted, but not mandated, to enforce separation agreement (Matrimonial Property Act, R.S.N.S. 1989, c. 275, s. 28). [45] While the chambers judge’s reasoning which led to his determination that Ingrid Ostrom was entitled to take under Ezra Morrell’s will was flawed, in these circumstances I am not persuaded that the result was incorrect in law. It is not necessary for me to decide the alternative disposition of the estate of the late Mr. Morrell pursuant to his will. Disposition [46] I would dismiss the appeal. The appellant shall pay the estate of Ezra Morrell costs of $2,000 inclusive of disbursements. The executrix shall have her costs paid out of the estate on solicitor-client basis. Oland, J.A. Concurred in: Saunders, J.A. Fichaud, J.A. NOVA SCOTIA COURT OF APPEAL Citation: Robinson v. Ostrom, 2009 NSCA 127 Date: 20091210 Docket: CA 305792 Registry: Halifax Between: Anne Robinson v. Susan Elaine Ostrom, Executrix of the Estate of Ezra Morrell Susan Elaine Ostrom, Walter Ostrom and Ingrid Ostrom Respondents Revised judgment: The text of the original judgment has been corrected according to this erratum dated March 2, 2010. Judges: Saunders, Oland, Fichaud, JJ.A. Appeal Heard: September 9, 2009, in Halifax, Nova Scotia Final Submissions Received: November 16, 2009 Held: Appeal is dismissed with costs per reasons for judgment of Oland, J.A.; Saunders and Fichaud, JJ.A. concurring. Counsel: Timothy Matthews, Q.C., for the appellant David Grant, for the respondents [47] Replace the last sentence in with the following: “Since then, s. 19A of the Wills Act, R.S.N.S. 1989, c. 505, as amended, has been enacted.

A couple signed a separation agreement which included a provision whereby they agreed to renounce and waive any claim in the estate of the other and any right to share in the estate of the other, which terms were incorporated into a corollary relief judgment. When he died, the former husband had not changed his will, which left the residue of his estate to his former wife. The Chambers judge held that the separation agreement had not revoked the will and the former wife was entitled to the testamentary gift. The mother of the deceased appealed. Appeal dismissed; although the Chambers judge's reasoning was flawed, the appellant had failed to produce any legal authority that a contractual promise to renounce, given for consideration before the death of a former spouse, binds a person to renounce a testamentary gift after his death. Even if the former spouse were so bound, there did not appear to be any privity of contract which would allow the appellant, who was not a party to the separation agreement, to enforce it.

b_2009nsca127.txt

J.C. R. IN THE QUEEN'S BENCH JUDICIAL CENTRE OF REGINA BETWEEN: ALICE WELLMAN and EMILY HEDSTROM DEFENDANT E. F. A. Merchant and for the plaintiff D. R. Filyk D. A. Phillips for the defendant JUDGMENT KYLE J. March 14, 1994 The plaintiff was injured in a motor vehicle accidenton February 8, 1988, in the City of Regina. Liability is not in issue. The trial of the action concerned the level ofdamages to which the plaintiff is entitled. Mrs. Wellman is now 72 years old. She was 67 at thetime of the accident. Her injury was a whiplash injury whichwas according to medical evidence filed, substantiallyresolved over a period of about one year following theaccident. The difficult aspect of this case arises from the fact that Mrs. Wellman was involved in previous accidents and also suffered from diabetes, osteoporosis and hypertension. She has delusions of paranoidal nature which have made it difficult to obtain clear picture of her subjective symptoms. She was confined to wheelchair from 1981 until 1983 following some back surgery and again in 1987. She says that before the accident she could climb stairs with the aid of both handrails or with cane and handrail. Since the whiplash injury she has fallen twice and has broken both hips, each of which has resulted in surgery involving the implantation of plastic parts. She says however, that she has logged 10,000 kilometres on her exercise bicycle since the injury and continues to do so notwithstanding that she is small, rather frail and confined to wheelchair. She complains that she has had to give up dancing because of the accident. It was the particular challenge of this case to identify the extent of the injury and its consequences within rather complex and not always believable context which she described to the Court and to her doctors. Dr. Gorania, her doctor of many years standing, treated her the day following the accident and throughout 1988 and early 1989. By November of 1988 he concluded that she had regained her "pre-accident state". As he was the only expert who was familiar with her pre-accident state must give greater weight to his conclusions than to those of Dr. Bill Elliott or of Brenda Collacott the physical therapist. Both of them testified at the trial. Dr. Gorania was not called to testify. While Dr. Elliott considered that her present level of disability was "in part" the result of the accident of February 8, 1988, he was unable to quantify that part. Brenda Collacott quoted Mrs. Wellman as having said that she had not been compensated for her earlier accident and was going to see that she was well compensated for this one. Mrs. Wellman denied that she was trying to secure compensation for both injuries in this lawsuit but that inference could be drawn from the testimony of the therapist. It is noted that she visited Dr. Gorania on February 9, March 8, April and May 11 of 1988. By the time she saw her doctor on May 11, 1988, she was concerned only with her diabetes. The doctor noted "no mention of the MVA related problem". His report of June 22, 1988 indicated nolikelihood of permanent disability and indicated partialdisability of only three months. She complained of neck stiffness on July 30, 1988 and it was noted that she "definitely showed signs of mental illness". By November 1, 1988, while neck and back pains were still there they were attributed to previous neck problem unrelated to the accident. The doctor's report said "she is, or now, can be considered to have returned to her pre-accident state". do not question Dr. Elliott's conclusion as to her present state but if one adds her pre-existing conditions to the two post-accident falls and subsequent hip replacements, it is not possible to conclude on the evidence that the part of her present condition brought about by the accident or in any way related thereto is of significance. do not believe that she has ridden 10,000 kilometres on her exercise bicycle at one of the higher levels of available tension. If she has, her disabilities are less than would have otherwise found them to be. do not believe that she did much dancing before the accident. If she did her description of her difficulty climbing stairs and the fact of her having been wheelchair bound in 1987 would need to be discounted. don't think she has lied about these things rather find, as Ms. Collacott found that "Mrs. Wellman is poor historian". conclude therefor that the whiplash injury was of mild to moderate nature and that it was to large extent cleared up within three months with some continuing discomfort for perhaps another year after which its impact upon this often injured person was not significant and should not be considered in assessing damages arising from the February 8, 1988 accident. It is noted that she was not confined to wheelchair in 1988 either before or after the accident and do not accept that the accident contributed to her being so confined at this time. As to the quantum of damages she has suffered, I find that the proper level at the time of the accident is$18,000. I do not accept any evidence tendered in respect ofher loss of housekeeping capacity as it would appear that shewas substantially disabled prior to the accident. Such inconvenience as was suffered during the year following the accident will be adequately compensated by the non-pecuniary damage award. The pecuniary expenditures of $1,989.82 are allowed. Carpet cleaning expenses are not allowed as they do not appear to have been incurred for any reason reasonably attributable to the accident. Pre-judgment interest will apply in respect of the non-pecuniary damages. It will also apply to the out-of- pocket expenses to be calculated from the date of the last expenditure in each of the categories claimed to this date. The plaintiff shall have her costs of this action to be taxed.

The Plaintiff, aged 72 years, claimed ongoing damages resulting from a whiplash injury suffered in a motor vehicle accident 5 years earlier. She had been involved in previous accidents and also suffered from osteoporosis and hypertension. She displayed some symptoms of mental illness, including paranoid delusions. HELD: The Plaintiff's evidence as to her condition was not accepted. Based upon the opinion of her doctor, the court found partial disability of 3 months, and that her symptoms were fully resolved within 1 year. The court awarded general damages of $18,000.00. The court refused to award damages for loss of housekeeping capacity, given the Plaintiff's disability prior to the accident.

1994canlii5206.txt

E. J. GUNN REDACTED VERSION QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2016 SKQB 154 Date: 2016 05 02 Docket: FSM 55 of 2013 Judicial Centre: Regina, Family Law Division IN THE MATTER OF HEARING UNDER THE CHILD AND FAMILY SERVICES ACT, SS 1989-90, C-7.2 AND IN THE MATTER OF THE CHILD: J.G. BORN …, 2001 H.G., BORN…, 2003 Counsel: Karen Hindle and Michael Morris for the Ministry Sherri Woods for the children JUDGMENT MEGAW J. MAY 2, 2016 INTRODUCTION [1] The Ministry seeks permanent wardship order with respect to two children. The parents of the children, despite being more or less involved with the proceedings for some of the period of time, did not appear for the trial of the action. While this failure to show was unfortunate, it does not change the obligation of the court with respect to the decision to be made. Accordingly, the Ministry presented its evidence completely and provided full and complete argument in support of its recommendation in this matter. Similarly, counsel for the children participated fully in the trial process and presented argument in advocating for the interests of the children. [2] Decisions like those the court is called upon to make in this case are difficult. They are life altering for so many people: the children, their parents, the extended family, the childcare workers, the foster parents and their extended family. These decisions are sometimes made more difficult when the confluence of scarcity of both financial and personal resources, lack of urgency and lack of attention cause the initial problems to become more perplexing, if not insurmountable. This confluence is present not necessarily through the fault of the principal actors. Rather, it is present because circumstances dictate it to be so. [3] While happy is not word often seen in these judgments, happily that confluence did not occur here. Rather, from tragic and wrong beginning, all of the necessary stars have lined up. The children have proven resilient. The right child protection team was put in place and remained in place. The right professional assistance was sought out and remained committed to these children. Last, but by no means least, the right foster parents were located and the children were allowed to remain in this consistent loving care throughout their time as wards of the Ministry. [4] give this long introduction because there are cases where no satisfactory results have occurred with children and the involvement of the Ministry. In the case before me, good people have done good work on behalf of good children, who absolutely deserve the work that was done. [5] There are two children involved in this matter: J.G., born …, 2001 and H.G., born …, 2003. Their parents are C.G. and S.G. C.G. had been peripherally involved with the raising of these children. Until July 7, 2013, S.G. had been the primary caregiver for both J.G. and H.G. [6] On July 7, 2013, the lives of these children changed indelibly. On that night, they were assaulted by their father. He had returned to the home intoxicated. He had taken turns assaulting first J.G. and then H.G. As one child attempted to assist the other, they were subjected to further assaults. At the time, the children were 12 and years old. While it appears from the materials both of these children had previously been subjected to their father’s physical manifestation of his anger, it appears this was the night when action was taken. [7] As result of complaint to the police by concerned neighbour, officers attended and arrested S.G. for the assault on his two children. Mobile Crisis attended the home and apprehended the two children. S.G. was taken to cells. The children were taken to foster home located in the Gravelbourg, Saskatchewan vicinity. The foster parents were T.A. and [8] S.G. pled guilty to the assaults very soon after he was charged. He was sentenced to period of six months incarceration with probation to follow. Shortly thereafter, he pled guilty to previous domestic violence assault on his then partner and received an additional eight month term of incarceration. It appears from the material filed he has history of violent behaviour on various parties, from his children, through his then partners to his parents. It appears most, if not all, of his violent behaviours are directed at either women or children. It further appears he has provided little to the Ministry to indicate he has either learned from his violent past or has taken steps to discover strategies to overcome his difficulties. [9] C.G. has been, for the most part, an absentee parent. The Ministry learned she suffers from addiction issues. She was described by S.G. as being “crack head” in one of his discussions with Ministry personnel. Following the apprehension of the children, the Ministry arranged for seven visits between C.G. and the children. C.G. managed to attend four. While those visits were reported to have gone very well, there have been no visits since November, 2013 and there have been no requests for visits since that time. The missed visits had an adverse emotional reaction on the children. C.G. has not been heard from since that time and her whereabouts are unknown. [10] S.G. has had no visits with the children. Application was made to court to attempt to compel visits. The application was denied by the court. The view of Ministry staff and healthcare professionals was that visitations with S.G. were not in the best interests of these children. However, in December, 2014, following consultation with the healthcare professional, S.G. was permitted to provide letter to each of the children. They, in turn, provided their response. There has been no further direct contact since that time. It appears for brief period of time J.G. may have had “Facebook” contact, but he has since deleted that from his “Facebook” account. [11] Following the initial apprehension, the Ministry made application for four month temporary order with respect to the children. That order was granted by Danyliuk J. on August 6, 2013. Following the expiry of that order, the Ministry made application for further three month temporary order. That order was granted by Kraus J. on December 31, 2013. The temporary orders were sought, not because the Ministry was considering return of the children to the parents, but rather because the Ministry was of the view they needed an opportunity to determine what steps should be taken to advance the best interests of these children. The Ministry determined to pursue permanent wardship order on April 8, 2014. [12] The child protection file was originally handled by Ashley Young of the Regina Children’s Justice Centre. She was the child protection arm of the Centre, working in conjunction with the Regina City Police, as these children had been abused. The actual child protection worker assigned was Kim Schleede and she remained involved in the file through to very recently. The file was transferred to child protection worker Jennifer Bender in early November, 2015. Despite this transfer, it appears Ms. Schleede stayed involved in her new role as an assistant supervisor still in child protection services. [13] Ms. Schleede was involved in setting up the visitations with C.G. She was also involved in discussions with S.G. During her discussions with S.G., he was variously interested in the children and interested in berating Ms. Schleede through the use of vulgar and inappropriate language. Presumably these instances were but continuation of his assault on others, and women in particular. [14] When the children were initially apprehended, they were examined in the Emergency Ward of the Regina General Hospital. The attending physician’s reports were submitted in evidence (Exhibit M1, Tabs 10(a) and (b)). In both cases, number of bruises were found on both the children’s faces and torsos. These bruises, in the opinion of the physician, confirmed the accounts given by the children that they were kicked and struck by their father on the night of July 7, 2013. [15] Incidentally, while S.G. did plead guilty to these assaults, he resiled from that guilt in his conversations with Ms. Schleede. To her, he denied having assaulted the children and suggested he pled guilty to avoid the children having to testify in the matter. Additionally, and much more disconcerting, he told her that if, in fact, he had kicked and struck the children the number of times they alleged, “they would be dead.” Chilling is an appropriate word to describe this conversation. [16] The child protection worker, Ms. Schleede, had discussion with C.G. at the time of the pre-trial conference. Ms. Schleede recounted C.G. had indicated she had run into extreme difficulty with the individual who supplied her with her drugs and also with law enforcement. She was apparently heavily involved in the drug scene and was both accused and witness in some type of criminal proceedings. This information is quite incomplete. It may be concluded C.G. was experiencing ongoing addictions issues and was in no position to be parenting these children, even had she indicated desire to so parent. [17] Both children were referred to registered psychologist, Shantelle Szuch. She began seeing the children in November, 2013. She was qualified as an expert in the area of child and adolescent psychology, including trauma focused therapy. She engaged this form of therapy with these children. She worked with both the children and the foster mother through to mid-March, 2015. She continues to work with all of them, but now on an as needed basis. This move to non-treatment is in accordance with the generally accepted professional view that it is not appropriate to “keep clients in ongoing, long term therapy once improvement has been observed.” (Exhibit M1, Tab 17, Letter of Shantelle Szuch) [18] And, according to the evidence, improvement was shown. Both children initially presented as angry, aggressive and scared. They reacted inappropriately emotionally and, on occasion, physically. Ms. Szuch determined these reactions were caused by the trauma they had been exposed to. J.G. was difficult to handle and was on the verge of being expelled from his new school. H.G. was reacting badly at her new home. To top matters off, H.G. was determined to be cognitively delayed and was functioning at an age considerably less than her chronological age. Her intellectual skills were quite stunted. As an aside, the psychologist was unable to assist on whether this intellectual deficit was the result of organic circumstances or the trauma to which she had been exposed. [19] This then brings me to the foster parents. In this case, the court was treated to hearing evidence from T.A. Without reservation, am able to say this individual is genuinely committed to the welfare of the children in her charge. She is devoted, in particular, to the two children in issue here. Through the course of her time as foster parent, she has had some 150 children involved in the system go through her home. cannot help but think those children are the better for their stay with her and her family. [20] At the present time, T.A. and her husband have 10 children living in their home: four are their biological children; five are foster children; and, one is adopted following being foster child. The children range in age from 11 to 18 years old. She testified that when J.G. and H.G. first came to them, there were emotional and physical outbursts. While she was understated in her comments, it is surmised this initial period was quite difficult. She was involved in their home life, their school life and their treatment with Ms. Szuch. [21] Throughout the time T.A. and K.A. have been involved with these children, it appears the kids have made nothing short of remarkable turnaround. While things are not perfect, as few familial relations are, they are certainly markedly better and continually moving in the right direction. The children call their foster parents mother and father. J.G. has developed into quite the little athlete and is doing exceedingly well academically. H.G. is getting assistance with her intellectual difficulties. She is involved in extra-curricular activities such as dancing. Both have positive peer roles in the home and have developed quite close bonds with the other children in the home. [22] T.S. gave her evidence in an exceedingly understated and humble manner. She was quite matter of fact in recounting her involvement in the turnaround of these children. But, she was quite pointed in providing the before and after picture for these kids. Her work with these children is nothing short of remarkable. Both have developed deep emotional bond with her. H.G. in particular is very attached. The children are lucky to have her in their lives. It appears she feels lucky to have these children, and the others in her brood, in her life. [23] Dr. Greenough, registered doctoral psychologist, was retained by the Ministry to complete parenting capacity assessment report to assist in formulating plan for the children. His report was marked as Exhibit M8 at the trial. His recommendations were blunt, the children should not be returned to their father’s care now, or in the foreseeable future. Further, he was not in support of the father having any access to the children. In his words, such access “will exacerbate their trauma and compromise their movement to healthy adjustment.” [24] The children were represented by counsel and have had the benefit of that consistent counsel for in excess of two years. Ms. Woods, in her role as advocate for the children, advised they wish to remain living with their foster parents. The children are concerned about the outcome of this trial and the continuing uncertainty of their permanent living arrangements. The foster mother confirmed the children have advised her they seek to remain living in her home. This information has also been provided to the child protection workers. [25] As indicated, the parents did not participate in the trial. was advised by counsel neither parent had contact with the Ministry for some period of time. While unfortunate, counsel did good job of marshalling the evidence and ensuring complete picture was presented to the court. While it would have been preferable to have heard from the parents, am satisfied received all of the available evidence concerning these children. [26] The Ministry seeks permanent order with respect to these children. Such an order removes all parental rights to the children and would come without conditions attached. The only real alternative on the facts presented here is long-term order. This type of order would preserve parental rights and would also leave open the door for variation application down the road. While there are other options in The Child and Family Services Act, SS 1989-90, C-7.2 [Act], like return of the children to their parents or an ongoing temporary order, none are appropriate on the facts of this case. Similarly, there is no indication of any person being available from the parents’ families to take responsibility for these children. [27] The method to be used to analyse case is set forth in (Re) S.F., 2009 SKCA 121 (CanLII), 343 Sask 112 [S.F.] and Saskatchewan (Minister of Social Services) E.K.S. (1996), 1996 CanLII 7131 (SK QB), 146 Sask 46 (QB) [E.K.S.] and (Re) T.C., 2014 SKQB 115 (CanLII), 444 Sask 10. It was most recently set forth in the decision of (Re) N.B., 2015 SKQB 171 (CanLII). [28] The first step is to determine whether the child is in need of protection pursuant to s. 11 of the Act. finding of such need requires the court to then look to s. 37 of the Act to determine the type of order to put in place. In considering that order, the court may consider the recommendation of the Ministry but will be guided by the best interests of the child as set forth in s. of the Act. [29] These various considerations occur against the overarching principle set forth in s. of the Act: The purpose of this Act is to promote the well-being of children in need of protection by offering, wherever appropriate, services that are designed to maintain, support and preserve the family in the least disruptive manner. [30] The determination of whether child is in need of protection is arrived at from review of the items set forth in s. 11: 11 child is in need of protection where: (a) as result of action or omission by the child’s parent: (i) the child has suffered or is likely to suffer physical harm; (ii) the child has suffered or is likely to suffer serious impairment of mental or emotional functioning; (iii) the child has been or is likely to be exposed to harmful interaction for sexual purpose, including involvement in prostitution and including conduct that may amount to an offence within the meaning of the Criminal Code; (iv) medical, surgical or other recognized remedial care or treatment that is considered essential by duly qualified medical practitioner has not been or is not likely to be provided to the child; (v) the child’s development is likely to be seriously impaired by failure to remedy mental, emotional or developmental condition; or (vi) the child has been exposed to domestic violence or severe domestic disharmony that is likely to result in physical or emotional harm to the child; (b) there is no adult person who is able and willing to provide for the child’s needs, and physical or emotional harm to the child has occurred or is likely to occur; or (c) the child is less than 12 years of age and: (i) there are reasonable and probable grounds to believe that: (A) the child has committed an act that, if the child were 12 years of age or more, would constitute an offence under the Criminal Code, the Narcotic Control Act (Canada) or Part III or Part IV of the Food and Drug Act (Canada); and (B) family services are necessary to prevent recurrence; and (ii) the child’s parent is unable or unwilling to provide for the child’s needs. [31] The best interests of the children are arrived at by considering the specific direction of s. 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. [32] In an oft-quoted passage, the Court of Appeal, in S.F., agreed with McIntyre J.’s determination in E.K.S. in outlining the principles to be applied in deciding the options available under s. 37 of the Act to carry out those best interests of the child (at para. 29): 29 In E.K.S. McIntyre J. set out the principles to be followed by court when determining whether any options available in s. 37(1) are appropriate as follows: 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 ..." [52] Counsel for the department said "good intentions are not sufficient" and relied upon the following observations of the Manitoba Court of Appeal in Children's Aid Society of Winnipeg v. Redwood (1980), 19 R.F.L. (2d) 232 (Man. C.A.), at p. 234: "... The test is: What is in the best interests of these children, and not whether the mother has merely seen the light and is now prepared to be good mother, while in the past, on her own admission, she was not such. The test is whether the mother has in fact turned new leaf and whether she is now able to give to the children the care which is in their best interests. Good intentions are not sufficient. As the chief justice of this court, speaking in an unanimous decision in another case, stated so ably: 'to give this mother another chance is to give these children one less chance in life.'" [53] The foregoing comments must be applied with caution. agree that good intentions by themselves are not sufficient. The question in every instance must be whether, on all of the evidence before the court, the court is satisfied sufficient change can occur within the context of an order under s. 37(1) such that it is in the best interests of the child to make such an order. Given the objective of the Act as set out in s. 3, permanent committal does not ipso facto follow just because the parent has not yet turned that new leaf. [33] In the case before me, I conclude these children, as at the date of the expiry of the last order of Kraus J., continue to be children in need of protection. I arrive at this conclusion by applying ss. 11(a)(1) and (b). The evidence discloses the father has taken no measurable steps to deal with his anger, violence and alcohol issues. He has lengthy history of violent acts against those who are ill-positioned to defend against such violence. It appears this violence occurs when he is abstaining from alcohol (in the case of his last known partner) and when he is intoxicated (in the case of these children). His comments to the child protection worker in his telephone conversations, regrettably, confirm he continues to struggle with anger and violent emotions. [34] These children were subjected to violence on July 7, 2013. The statements of the children at that time suggest they had been subjected to this violence on previous occasions. Nothing has changed with the father. Accordingly these children continue to be in need of protection as they are likely to suffer physical harm at the hands of their father. [35] In addition, the children’s emotional and psychological state requires them to continue to be in need of protection. The evidence showed the children struggle on an ongoing basis from the trauma they experienced at the hands of their father. [36] As well, there does not appear to be any adult person able or willing to provide for their needs. As such, the children are further exposed to emotional and physical harm. The mother continues to suffer from addictions issues. She is engaged with the criminal justice system. She is involved in serious matters which, obviously, preclude the attention to children. The father has been absent from the children’s lives this entire period of time. [37] Neither parent has taken an active interest in these children for almost three years. The mother has had no contact with the children since missing her last visit at the end of 2013. The father, once the letters were written, has had no involvement with the Ministry. Neither appeared at the trial. It is apparent neither is available to care for these children. [38] The next step is to determine the appropriate order. As indicated, the recommendation of the Ministry is for permanent order. The best interests of these children compel such an order being made. arrive at this conclusion for the following reasons. [39] The children have developed close, loving bond with their foster parents. They have been in this relationship for almost three years. The efforts of both the children and their foster mother have achieved remarkable results. It is imperative in the lives of these children this relationship be continued and be made permanent. [40] J.G.’s intellectual and emotional development has seen steady trajectory upwards. He is bright young man and is doing very well in school. This development appears to have occurred since he was placed with the foster home. He is also learning to control his aggression and inappropriate behaviour. This is occurring through his hard work, but it is also occurring through the efforts of his foster parents and his support network. This support network includes Ms. Szuch, his school officials and the child protection workers. This development must be allowed to continue and that can only happen if he is committed permanently to the care of the Ministry in the hands of T.A. and K.A. [41] H.G.’s cognitive deficits are recognized and dealt with by the foster parents. While she struggles academically, all are working with her to develop her to her maximum potential. She is learning to control her aggression and outbursts. This occurs through the complete support network but appears to be principally the result of the loving, gentle but firm, guidance of T.A. This ongoing development can only happen if she is permanently committed to the care of the Ministry in the hands of T.A. and K.A.. [42] The proposal going forward is that both children will remain in the care of the foster parents. As T.A. put it in her evidence, she is committed to parenting these children through to their 18th birthday “and beyond”. She, and her husband, are these children’s parents for life. They have loving home in which appropriate behaviour, emotional development and academic achievement are emphasized and developed. Extra-curricular activities for all of the children, and for these two in particular, are plentiful and add to the development of both J.G. and H.G. [43] The children’s wishes, as expressed through T.A., the child protection team, Ms. Szuch and their counsel are that they wish to reside permanently with T.A. and K.A. J.G. puts it that he wants to change his last name to A. Their counsel describes J.G.’s wishes as informed. She describes H.G.’s wishes as being the practical result of what is in her best interests. Regardless, the clear wishes of these children, as expressed repeatedly and unwaveringly, is to reside permanently with their present parents. put weight on these wishes in making my decision. [44] The conclusion of Dr. Greenough is short and pointed: there is to be no further contact with the father. This conclusion of doctoral, registered psychologist carries weight in the circumstances before me. The children’s psychological best interests require permanent order to be made. [45] As indicated in the introduction, the continuity exhibited in this case is quite remarkable. It is tribute to those involved. More importantly, the children have been the real beneficiaries of this level of consistency and continuity. Their protection, mental health assistance, academic help, psychological assistance and parenting have been conducted cooperatively between the various agencies and persons. It is unusual to see this for whole host of reasons, none of which cast aspersions on any of the agencies involved. It obviously worked here and it is imperative this continuity continue into the future. [46] Finally, consider the effect of delay in making decision through long-term order. The children were aware this trial was approaching. It is appropriate in these circumstances that they did know. They were aware of their situation and information on the legal process allowed those advising and counselling them to include them in this process. [47] However, that knowledge brought with it anxiety. It resulted in reversion to some of the children’s previous behaviour. It appears, for these children to gain the full benefit of the situation in which they find themselves, they must know their situation is permanent. They must know their home is their family home and will not be changing now or in the future. Such further contact will practically be dictated by the children as they age. [48] For all of these reasons, I determine a permanent order with respect to these children is the appropriate order to make. have determined to make no additional recommendations to the Ministry. am mindful of the comments of Dr. Greenough and leave any further recommendations in the care of the Ministry. CONCLUSION [49] There shall be an order pursuant to s. 37(2) of the Act permanently committing the children, J.G. and H.G., to the care of the Minister. am confident they are in good hands with T.A. and K.A. J. M. T. MEGAW

HELD: The order was granted. Following the expiry of the current temporary order, the court found that the children were in need of protection pursuant to s. 11 of The Child and Family Services Act. As the father had taken no steps to deal with his anger, violence and alcohol issues, the children continued to be in need of protection as they were likely to suffer physical harm at his hands. Their psychological well-being required that they remain in protection to allow them to deal with the trauma they had suffered while they were in his care. Therefore, the court found that because the children were doing well in foster care and did not wish to be returned to their father and that the expert had advised against them having any further contact with him, it would make a permanent order rather than a long-term order.

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THE COURT OF APPEAL FOR SASKATCHEWAN HELMUT (HAL) REICH (APPELLANT) and ACHIM LOHSE and ISABELLE DAILLY (RESPONDENTS) APPELLANTS and THE OFFICE OF THE RENTALSMAN (RESPONDENT) CORAM: The Honourable Mr. Justice Wakeling The Honourable Mr. Justice Sherstobitoff The Honourable Madam Justice Jackson COUNSEL: The appellant Mr. Reich appeared on his own behalf The respondents Mr. Lohse and Ms. Dailly were represented by Mr. Lohse Mr. Wayne Mulholland for the respondent Rentalsman DISPOSITION: Appeal Heard: 25 July, 1994 Appeal Allowed: August, 1994 Reasons: August, 1994 On Appeal From: QBM 456/94, Regina Appeal File: 1915 Reasons by: The Honourable Madam Justice Jackson In concurrence: The Honourable Mr. Justice Wakeling The Honourable Mr. Justice Sherstobitoff JACKSON J.A. The issues in this case began long before the notice of termination of tenancy (which ultimately prompted this Court's involvement) and stem from number of complaints made by both the tenants and the landlord. The landlord, Mr. Helmut Reich, began leasing his premises to Achim Lohse and Isabelle Dailly on August l, l993. The tenancy was not an amicable one. The tenants applied first to the Rentalsman's Office early in 1994 for an order directing the landlord to do certain repairs and maintenance. hearing was held on March 21, 1994. On this same day thelandlord served the tenants with a notice of termination oftenancy. The deputy rentalsman who conducted the hearing on this first complaint released his decision on May 3, 1994 at which time he ordered the landlord to remove stove, replace refrigerator and make appropriate repairs to floor tiles, fence and gate. He did not, as the tenant had requested, prohibit the landlord from unauthorized visits or direct the removal of particular clause in the tenancy agreement but chose instead to refer the parties to the appropriate provisions in The Residential Tenancies Act R.S.S. 1978, c. R-22. The tenants appealed this decision to Matheson J. who dismissed the appeal in an unreported judgment dated June 10, 1994 (Q.B.M. No. 446, Judicial Centre of Regina). The tenants did not appeal that decision further. Meanwhile the landlord's termination notice still had to be dealt with. The tenants' response to receipt of the termination notice was not to move. They claimed the termination notice was meant to punish them for applying to the Rentalsman's Office for protection of their rights. All this resulted in another hearing before the same deputy rentalsman who had heard the previous application on May 10, 1994 to consider the landlord's claim for possession. The landlord included among his reasons for wanting possession two letters indicating his desire to sell the premises and his ill health necessitating sale. The deputy rentalsman's decision on the landlord's application for possession was rendered May 13, 1994. This decision displays the animosity which continued to exist between the tenants and the landlord. The final portion of the decision reads: Having reviewed the various differences between this landlord and tenant over the course of two hearings, am of the opinion that there is little or no chance for the parties to reconcile their differences whatever they may be and the landlord was justified in serving notice to terminate. The differences between the Landlord and Tenants did not solely arise from reasonable complaints by tenants. DECISION: Having so found, make the following Order; This tenancy will terminate as of midnight on the 3lst of July 1994. Order Writ of Possession be issued directing the Sheriff at the Judicial Centre of Regina to place this landlord in possession of these premises no sooner than the lst of August 1994. To assist withrelocation costs, the total rent for June and July isabated. Now it was the landlord\'s turn to appeal the deputyrentalsman\'s decision. The landlord's specific concern was the abatement of rent for June and July which amounted to $1,150. The matter was heard by Justice Sirois on June 2l, l994. Justice Sirois ordered, without giving reasons, thatthe deputy rentalsman\'s order was to stand with respect totermination of the tenancy on July 31, 1994 (as opposed tosome earlier date). However, he reversed the decision toabate rent for June and July. The tenants then applied for leave to appeal to thisCourt under s. 49(2) of The Residential Tenancies Act. Leave was granted on the question of "whether the learnedchambers judge correctly found an error of law or want ofjurisdiction entitling him to overturn the decision ofdeputy rentalsman Slinn abating the rent for June andJuly." Justice Sirois's function was governed by s. 49(1) of The Residential Tenancies Act: 49(1) Any person who is aggrieved by decision or order of the Rentalsman may appeal the decision or order on question of law or of jurisdiction of the Rentalsman to judge of Her Majesty's Court of Queen's Bench for Saskatchewan within 30 days of the date of the decision or order. Therefore, it can be assumed that, in overturning thedecision of the rentalsman with respect to the abatement ofrent, Justice Sirois decided the rentalsman either: (i)exceeded his jurisdiction; or (ii) erred in law. Although not specifically stated, this Court's function must also be limited to determining whether Sirois J. erred in so concluding. The source of the Court of Appeal's jurisdiction is s. 49(2): 49(2) Any person who is aggrieved by decision or order of judge of Her Majesty's Court of Queen's Bench for Saskatchewan pursuant to sections 47.1 to 47.3 or pursuant to subsection (1) of this section may appeal the decision or order to the Court of Appeal within 30 days of the date of the decision or order with leave of the Court of Appeal or judge of that court. One turns first to determine whether the deputy rentalsman had the power to abate rent in this case. The relevant provisions of The Residential Tenancies Act are ss. 47(1)(a),(1.1),(1.2),(2) and (4): 47(1) An application for an order respecting any residential tenancy dispute may be made: (a) to the Rentalsman, in the form and manner that the Rentalsman may direct; (2) On receiving an application pursuant to clause (1)(a) or determining pursuant to subsection (1.2) that hearing should be held, the Rentalsman: (a)may direct an investigation into the matter; (b)shall hold hearing; (c)after holding the hearing pursuant to clause (b), may make any order the Rentalsman considers just and equitable in the circumstances including an order: (i)directing any person found contravening or failing to comply with tenancy agreement, this Act, the regulations or an order made pursuant to this Act to stop that contravention or failure and to so comply; (ii)requiring tenant to pay to the Rentalsman all or any part of any instalment of rent otherwise payable to the landlord; (iii)requiring the payment of damages; (iv)granting possession of residential premises; and (d)shall, where an order is made pursuant to sub-clause (c)(ii), use the moneys paid to the Rentalsman to remedy the landlord's contravention of or failure to comply with tenancy agreement, this Act, the regulations or an order made pursuant to this Act. (4) Where, in any proceeding by landlord for possession of residential premises, it appears to the Rentalsman that: (a) notice to terminate the tenancy agreement was given to the tenant because of the tenant's bona fide complaint to the Rentalsman or to any other agency of the Government of Saskatchewan alleging the contravention of any statute, bylaw or other law dealing with health or safety standards, including housing standards; (b) notice to terminate the tenancy agreement was given to the tenant because of the tenant's attempt to secure or enforce his rights under this Act; or (c) on the evidence presented, the landlord has contravened term or condition of the agreement or has contravened any condition set out in section 20; the tenant may in the same proceedings apply to the Rentalsman for relief and the Rentalsman may grant such relief, including relief with respect to payment of rent or reasonable compensation and the granting of an injunction to restrain any contravention as mentioned in clause (c), as he considers just having regard to the proceedings, the conduct of the parties and to all other circumstances. The deputy rentalsman did not make it clear pursuant to which section he ordered rent to be abated. Under s. 47(2), the rentalsman may make "any order [he or she] considers just and equitable" including an order (i) stopping any contravention under the Act; (ii) requiring tenant to pay to the rentalsman any rent; (iii) requiring damages to be paid; and (iv) granting possession of residential premises. Under s. 47(4), the rentalsman may, among other things, grant relief with respect to rent, if it appears to the rentalsman: (i) the tenancy was being terminated because of the tenant's bona fide complaint or attempt to enforce rights under the Act; or (ii) the landlord had contravened the agreement or s. 20 of the Act. (The deputy rentalsman has all the powers of the rentalsman (see s. 7(3) of the Act). That the deputy rentalsman hadthe authority to abate rent under s. 47(4) is clear on theface of the section. Whether he also had the authority under s. 47(2) depends on the construction of s. 47(2). In s. 47(2) the legislature has used general words: "may make any order the Rentalsman considered just and equitable" followed by specific types of orders. The list of specific orders might have been given because they are extraordinary: they are either injunctive, require the payment of money or give possession of the premises to the landlord. The abatement of rent, too, might be regarded as extraordinary. Was the list intended to be exhaustive as to extraordinary powers or was it given out of an abundance of caution? The power to abate rent on landlord's application for possession is specifically mentioned in s. 47(4). Does this limit further the rentalsman's powers under s. 47(2)? The deputy rentalsman made two statements which are somewhat contradictory. He said: (i)"the landlord was justified in serving notice to terminate"; and (ii)"the differences between the landlord and tenants did not solely arise from reasonable complaints by tenants." The first statement saying the landlord was justified in serving the termination notice would seem to rule out any possibility of jurisdiction falling under the rubric of s. 47(4). But the last statement would lead one to conclude that the differences arose, in part, from reasonable complaints by tenants which would then justify the abatement of rent under s. 47(4). If the differences did not arise "solely" from the tenants' reasonable complaints, they must have arisen in part from such complaints. The rentalsman's powers under s. 47(4) cannot be so restricted that he must find precisely the reason for the landlord's desire for possession. Nor should he be so limited by s. 47(4) to ordering an abatement if he finds the landlord was only motivated by one reason, i.e., to rid himself of his tenants for their reasonable complaints. It would be rare case, indeed, where the rentalsman could abate rent if he had to first find the landlord was motivated only by such reason. (One could envisage fact situations where the rentalsman may have to consider the predominate motivating reason, but we do not have that type of case here.) On balance, it is my interpretation of the deputy rentalsman's order that he was exercising jurisdiction under s. 47(4), and it was possible for him to so exercise that jurisdiction. This obviates the necessity of deciding whether he also had the jurisdiction to abate rent under s. 47(2). Having concluded that the deputy rentalsman had the authority to abate rent, it follows that Sirois J. erred in overturning the deputy rentalsman's decision to abate the rent for June and July. The landlord did not articulate legal reason which would preclude the deputy rentalsman from making the decision he made. The landlord, in detailed written submissions, indicated his concern for himself and other landlords if required automatically to provide an abatement of rent if they wished to legitimately terminate tenancy. The landlord may be justified in his concern if it were required in all cases, but that is not the case here. Therentalsman has a discretion to determine those cases wherean abatement of rent is appropriate. Whether the rentalsman orders an abatement of rent is the rentalsman's decision to make (assuming it is otherwise made in accordance with the law.) In this case, the deputy rentalsman heard the tenants and the landlord in two separate hearings and had access to Matheson J.'s written judgment. The landlord in the second hearing wanted writ of possession so as to be able to sell the premises not to re-rent them. The tenant did not want to give up possession. The landlord received his writ of possession,but not for two months hence. The deputy rentalsman abatedthose two months rent. Both sides were intent on complete success and the deputy rentalsman sought an order which would give each side part of what they had demanded. Our jurisdiction and that of the Queen's Bench on an appeal from the rentalsman is simply supervisory one with respect to the interpretation of the law and the rentalsman's jurisdiction. It is not our task to pass judgment on the behaviour of either tenants or landlords as it relates to the exercise of their right. That is the function of the rentalsman. It must be kept in mind we are not dealing with The Landlord and Tenant Act but rather The Residential Tenancies Act passed in an attempt to provide tenants with some security of tenure (see: Williams Rhodes Canadian Law of Landlord and Tenant 6th ed. (vol. 2) p.17-1). This protection was given to tenants to address the unequal bargaining power between landlords and tenants (see: Residential Tenancies in British Columbia by G.B. Klippert at p. 42 and Residential Tenancies (3rd ed.) by D.H.L. Lamont Q.C. at pp.1-4). Prior to August l4, 1992, appeals from the rentalsman's decisions were taken to the Rent Appeal Commission (see old s. 49). These appeals were far-ranging. The Commission could receive new evidence and make any just and equitable order (see old s. 50). The Residential Tenancies Amendment Act, 1992 s.s. 1992, c. 37 (which came into force on August 14, 1992) abolished the Rent Appeal Commission and permitted applications to be made directly to the Queen's Bench, in certain circumstances (see: ss. 47(1)(b), 47.1 to 47.3), or to the rentalsman (see s. 47(1)(a) above). Wherethe application is made to the rentalsman, the appellatejurisdiction of the Queen\'s Bench is restricted to findingerror of law or jurisdiction. The jurisdiction previously given to the Rent Appeal Commission has not been given to the Queen's Bench. There is no longer full re-hearing on an appeal from the rentalsman's decisions. On this basissome deference must be shown to those aspects of therentalsman\'s decisions which reflect an exercise ofdiscretion. In the result, the appeal is allowed and the decisionof the rentalsman restored. As neither the landlord nor the tenant was represented by counsel, there will be no order as to costs. DATED at the City of Regina, in the Province of Saskatchewan, this 3rd day of August A.D. 1994. JACKSON J.A. concur WAKELING J.A. concur SHERSTOBITOFF J.A.

The landlord applied for possession of residential premises after his tenants refused to vacate in response to a written notice to vacate. The deputy rentalsman ordered that the landlord should have possession, but also ordered that the last two months rent would abate in order to assist the tenants with their moving costs. The landlord appealed the abatement of rent and a chambers judge reversed the deputy rentalsman. The tenants sought and were granted leave to appeal the chambers judge and this appeal resulted. HELD: Appeal allowed. 1)The chambers judge could only reverse the deputy rentalsman if he exceeded his jurisdiction or erred in law. 2)The deputy rentalsman had jurisdiction to order an abatement of rent pursuant to S.47(4) of the Act. 3)The jurisdiction is a discretionary one. The court will therefore show some deference to a decision of the rentalsman involving this jurisdiction. In this case the deputy rentalsman made no reversible error.

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J. 2000 SKQB 565 Q.B.G. A.D. 1998 No. 12 J.C.S. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF SASKATOON BETWEEN: HER MAJESTY THE QUEEN and RICHARD JOSEPH LEIBEL J.A. Plemel for the Crown A.A. Fox, Q.C., and J.N. Korpan for the accused FIAT SMITH J. December 12, 2000 [1] This is an application by the accused for: (1) an order pursuant to s. 581(1) of the Criminal Code of Canada quashing Count #1 of the indictment as now amended on the ground that it applies to more than one single transaction; (2) an order pursuant to ss. 7 and 24(1) of the Canadian Charter of Rights and Freedoms and the common law doctrine of abuse of process that portions of the indictment as amended be quashed or stayed on the basis of the judgment of Klebuc J. in the trial of the former co-accused, Reginald Schafer; and, alternatively, (3) an order staying the proceedings on the grounds of unreasonable delay in bringing the accused to trial. (1) Does count of the indictment offend the “single transaction rule”? Count #1, as now amended, alleges that Richard Joseph Leibel: between the 13th day of October A.D. 1988 and the 26th day of March A.D. 1993 at the City of Saskatoon and elsewhere in the Province of Saskatchewan did by deceit falsehood or other fraudulent means, by using the funds of International Capital Corporation (ICC) to advance their personal business interests of Reginald Schafer and/or Richard Leibel over those of ICC, defraud the said Corporation and its preferred shareholders of money in excess of $1,000.00, contrary to s. 380(1)(a) of the Criminal Code by one or more of the following ways: (a) by using ICC’s funds in ways which did not conform with ICC offering memoranda, its promotional materials and/or the Immigrant Investor guidelines; (b) by allowing ICC funds in the amount of approximately $513,000.00 to be used by Trirak Industries Corporation, to the benefit of Richard Leibel and Trirak Industries and to the detriment of ICC and its preferred shareholders; (c) by allowing Fund Management Inc. (FMI) to become indebted to ICC; (d) by using ICC funds of approximately $378,852.28 to finance restaurant in San Antonio, Texas; (e) the diversion of funds from 590188 Saskatchewan Ltd. to one or more of the following: Giant Bay Resources Ltd., Giant Bay Investment Fund Inc., Trirak Industries Corporation, Acquisition Ventures Inc., Battlefords Aquatic Park General Partner Inc., ICC Supply and Willows Golf Corporation; (f) using approximately $1,695,000.00 to purchase of 5,500,000 shares of Giant Bay Resources Ltd; (g) the advance of ICC funds in the amount of approximately $2,250,000.00 to Giant Bay Resources Ltd.; (h) causing ICC funds referred to in paragraph (g) to be advanced to bank account in Malaysia; (i) postponing ICC’s mortgage and caveats on the Willows Golf Course in favour of Household Trust Mortgage in approximately November of 1990; (j) representing to ICC’s investors that 30% of their investment would be invested in Canadian Government Insured Certificates (GIC’s) and then using that portion of their investment in other ways. [2] Section 581(1) of the Criminal Code provides as follows: Each count in an indictment shall in general apply to single transaction and shall contain in substance statement that the accused or defendant committed an indictable offence therein specified. [3] Section 581(6) says: Nothing in this Part relating to matters that do not render count insufficient shall be deemed to restrict or limit the application of this section. [4] The accused argues that the particulars of count #1 itemized in subparas. (a) through (j) describe separate transactions, within the meaning of s. 581(1) and that count #1 of the indictment is therefore void. [5] have concluded that the accused cannot succeed on this point. The case law cited by both parties clearly establishes that the word “transaction” as it is used in s. 581(1) is to be interpreted broadly and flexibly, and that a single “transaction” may in this sense include a number of acts or incidents occurring over a period of time. “Transaction” as this word is used in s. 581(1) is not, therefore, synonymous with “incident” or “occurrence” and this is so even where separate incidents properly alleged under single count might also have been the subjects of separate counts, had the Crown so chosen. See R. v. Hulan, 1969 CanLII 306 (ON CA), [1970] C.C.C. 36 (Ont. C.A.), at 44, sexual abuse case where the abuse allegedly consisted of repeated acts over long period of time. In these circumstances the Court has power, under s. 590, to order that single count be divided where it is satisfied that the ends of justice require it. flexible interpretation of the requirement of s. 581(1) has been said to be reinforced as well by the qualifying words “in general” which suggest “a permissible relaxation of its terms extending to exceptional cases in which number of acts each in itself constituting an offence is capable of being treated as one transaction.” R. v. Canavan and Busby, 1970 CanLII 319 (ON CA), [1970] C.C.C. 15 (Ont. C.A.), at 18-19. [6] While it is true that we are here considering newly amended indictment, the substantive question raised by this application has in my view been determined three times before in these proceedings. similar application to quash was made with respect to the information that commenced the charges against this accused and his then co-accused, Reginald Schafer, and was rejected by Judge Goldstein who was then sitting as the trial judge in Provincial Court. The Crown had in that case provided particulars to the impugned count closely similar to those at issue under the amended indictment now before me. Following that ruling, the two accuseds re-elected to be tried by judge and jury. The applicant then brought motion to quash what was essentially the same count in the Court of Queen’s Bench. This application was rejected by Matheson J., who held that the particulars of the fraud then alleged were not separate “transactions”, but “a series of acts, during the specified period of time, alleged to constitute the means by which the named victims were defrauded as alleged.” An appeal of this ruling to the Saskatchewan Court of Appeal was dismissed without written reasons. Count #1 considered by Judge Goldstein and then by Matheson J. was similar to Count #1 as now drafted except that it contained sub-paragraphs to the count rather than the 10 which now appear in the amended indictment. [7] Subsequently, following the separate trial and conviction of Reginald Schafer, the Crown amended the indictment against the applicant to charge, inter alia, what is now count #1, but without enumerating particulars. The applicant then applied to me, as trial judge, to quash the then unparticularized count #1 on this same basis, that it violated the single transaction rule or, alternatively, to order that the Crown provide particulars. The argument in support of the application to quash was again based on the requirement of s. 581 and relied on the assumption that the Crown would be calling evidence, as it had in the Schafer trial, about some or all of the same incidents particularized in the earlier indictment and now particularized in the within indictment. On that application, I dismissed the application to quash count #1, indicating that I did not believe that the application raised a question substantively different from that already determined by Matheson J., but ordered the Crown to provide particulars (as it now has done in the amended indictment) and indicated to counsel that once particulars were supplied, I would consider an application to order the indictment separated pursuant to s. 590, if the accused could show, for example, that it would be prejudicial to put the complex indictment to a jury. [8] It is my view that the application now before me raises substantively the same question as that previously considered and determined adversely to the applicant first by Judge Goldstein, then by Matheson J. (appeal to the Court of Appeal dismissed) and finally by myself in my fiat of September 11, 2000. [9] conclude that count #1 does not allege more than one “transaction”, within the meaning of s. 581(1), but, rather, particularizes in the alternative various ways in which the accused is alleged to have defrauded the investors of ICC by using the funds of ICC to advance his own interests or the interests of Reginald Schafer. The application to quash count #1 of the indictment on this basis is therefore dismissed. (2) Should some or all of the charges against the accused Richard Leibel be stayed on the grounds of abuse of process? [10] The applicant advances two considerations which he says together would support judicial stay in relation to certain of the matters alleged in the amended indictment on the grounds of abuse of process. One of these is an “understanding” that the applicant says it had with the Crown that the charges against Leibel would be reviewed by the Crown after the Schafer trial in light of any findings made by the trial judge in that case. The other related argument is that certain of the express findings of the trial judge in the Schafer trial raise issues of res judicata or issue estoppel in relation to the matters now alleged against Leibel. These considerations combined would lead to abuse of process, it is argued, were the Crown permitted to proceed against Leibel in relation to particular allegations of which, it is alleged, he was exonerated in the Schafer judgment. [11] The legal relevance of each of these considerations requires further discussion, for neither fits neatly into the principles established by legal precedent. The position of the Crown is that it is not bound in this proceeding by any factual or legal determinations made by the trial judge in Schafer. will return to this discussion below. It is first necessary, however, to provide some factual background of the circumstances giving rise to this application. will then examine the extent to which the Schafer judgment can, in any case, be said to provide support for the argument, for, if, on proper reading, the findings of the trial judge in Schafer do not exonerate Leibel, (in the sense that finding of guilt in relation to particular allegation against Leibel in the current indictment would be inconsistent with the findings of the trial judge in Schafer) then the argument fails at that point. [12] The applicant Richard Leibel was originally charged jointly with Reginald Schafer and the two were committed to stand trial before judge and jury after preliminary inquiry that concluded on December 8, 1997. After Leibel retained his present counsel, in 1998, he applied to sever the charges against the two accused. This application was ultimately successful. It is common ground that the Crown then took the position that it made more sense to proceed with the Schafer trial first, and, further, that it preferred to await the outcome of that trial before proceeding with the Leibel trial. According to Crown counsel, it was agreed that it would be beneficial to both the accused and the Crown to have the benefit of the judgment in the Schafer matter before proceeding with the Leibel trial. Leibel and his counsel agreed to this procedure and to waive any objections to delay in relation to this period of time. [13] Schafer re-elected to be tried by judge alone and his trial before Klebuc J. took place between September 7, 1999 and October 21, 1999, with written and oral arguments presented in December, 1999. Mr. Leibel testified, under subpoena, as defense witness. He was on the witness stand for three days, two under cross-examination by the Crown. Klebuc J. reserved his decision, and judgment was rendered on April 20, 2000. Klebuc J. convicted Schafer on number of counts and acquitted on others. With regard to each of the incidents then included as particular to count #1 he made specific finding as to whether that matter would support finding of guilt. In some cases he found that it would not. In his written judgment, he commented extensively on the evidence of Mr. Leibel, and made some specific findings, favourable to Leibel, in relation to the latter’s involvement (or lack thereof) in some of the matters with which Schafer was charged, including some of which he was found guilty. [14] Following the Schafer decision, Mr. Leibel’s counsel met with Crown counsel to review the decision, and to argue that, in light of number of the findings of Klebuc J., the Crown ought not to proceed with certain allegations contained in the original indictment against Leibel. The response of the Crown was to issue new indictment on June 29, 2000, reducing the number of counts charged from the original eight to two. Count #1, however, was very broad, omnibus charge, alleging that Richard Leibel: 1. between the 13th day of October A.D. 1988 and the 26th day of March A.D. 1993 at the City of Saskatoon and elsewhere in the Province of Saskatchewan did by deceit falsehood or other fraudulent means, by using the funds of International Capital Corporation (ICC) to advance the personal business interests of Reginald Schafer and/or Richard Leibel over those of the ICC, defraud the said Corporation and its preferred shareholders of money in excess of $1,000.00, by using ICC’s funds in ways which did not conform with ICC’s offering memoranda, its promotional materials and/or the Immigrant Investor Program Guidelines, contrary to s. 380(1)(a) of the Criminal Code. [15] This count contained none of the particulars that have since been ordered and are now numbered subparas. (a) through (j). Count alleges that Leibel: between the 16th day of January, A.D. 1991 and the 30th day of January A.D. 1991 at the City of Saskatoon in the Province of Saskatchewan did steal money in excess of $1,000.00 being portion of the proceeds of the sale of ICC’s shares in Giant Bay Resources Ltd. contrary to section 334(a) of the Criminal Code. [16] This indictment was in sharp contrast to the original indictment against Schafer and Leibel jointly, which had contained six counts relevant to Leibel (eight in relation to Schafer) and had included as particulars to count #1 (a count closely similar to the present count #1) nine particular acts and incidents relied upon, in numbered paras. (a) through (i). The effect of this was that the accused was unable to determine from the indictment which of the original allegations the Crown was still pursuing against Leibel, in light of the Schafer judgment, or whether it had now abandoned any of those matters. [17] On September 11, 2000, the applicant made successful application for an order that the Crown provide particulars for count #1, with the ultimate result of the indictment as now amended and quoted above. The effect of this, although it simplified and combined some of the original allegations, was to indicate that the Crown intended to proceed against Leibel in relation to all of the original allegations against him, except that the Crown was no longer alleging that the applicant together with his co-accused had charged unauthorized management fees. In addition, the allegation in particular (i), above, was new. [18] The accused alleges that his agreement to waive any objections to delay until the outcome of the Schafer trial was known was given on the common understanding and expectation that the Crown would reassess its position in relation to the charges against Leibel in light of the judgment of Klebuc J. in Schafer. This argument is expressed in his written brief, as follows: Leibel has prejudiced his position by waiving delay on the understanding that the Crown would reconsider the charges against him after Mr. Justice Klebuc made his findings on Schafer’s trial. Further, Leibel was compelled to testify at Schafer’s trial. The Crown, rather than considering the findings of Mr. Justice Klebuc concerning Leibel’s evidence, has simply used the opportunity to cross-examine him to assist in preparing its case against him. In his written brief the applicant alleges that the Crown breached its “agreement” with him and invites this Court to “step in and uphold the agreement” by itself undertaking detailed review of the indictment against him and consider whether those charges ought to be proceeded with in light of Mr. Justice Klebuc’s decision. [19] The Crown denies that there was any such agreement. Its position is that it was more logical to proceed against Schafer first because after September 28, 1988 Schafer was the sole director and shareholder and president of ICC whereas the Crown alleges that Leibel was working “behind the scenes”. Crown counsel comments in his brief: It is the Crown’s view that together they defrauded ICC and its preferred shareholders. If, however, trial judge found that Mr. Schafer’s conduct was not fraudulent and acquitted him, and if the Crown did not appeal that decision, then we would have to determine whether or not to proceed against Mr. Leibel. Although this approach seemed sensible to the Crown, we made it clear that if Learned Counsel for the Applicant wished to proceed before the decision came down in the Schafer trial, we were quite prepared to set the matter down for trial. (emphasis added) [20] Letters on the court file, and attached to the affidavit of Mr. Leibel, support the Crown’s contention that there was no express promise that its proceedings against Leibel would in any way be determined by the outcome of the Schafer trial. On January 11, 2000, Mr. Fox, counsel for the applicant, wrote to the Local Registrar, copied to the Crown prosecutor, Mr. Plemel, as follows: The Leibel matter is scheduled to be spoken to at the pre-trial conferences on February 4th. The trial of the Schafer matter has now been completed and the matter has been adjourned for decision to mid-April. have spoken with Mr. Plemel and, as we previously indicated, the ultimate proceedings against Leibel are somewhat dependent upon the outcome of the Schafer matter. For this reason we would ask that the Leibel matter be set over to be spoken to at the April 28th pre-trial conference. Both Mr. Plemel and agree that it is not realistic to expect the Leibel matter to proceed to trial before this fall. confirm on behalf of Mr. Leibel that we are waiving delay in regard to this matter. (emphasis added) [21] This letter sparked response from Mr. Plemel, Crown counsel in letter to Mr. Fox dated January 28, 2000: Further to your letter of January 11, 2000 to Mr. Berezowsky, this is to confirm our agreement that this matter be set over to be spoken to at the April 28th pre-trial conference. wish to reiterate, however, that Mr. Justice Klebuc’s decision, whatever it is, will not dictate how we proceed with relation to your client. Our understanding has been that we will properly use our discretion to proceed with Mr. Leibel’s matters as we see fit. Of course Mr. Justice Klebuc’s decision will be useful both to you and the Crown. thought should state this in writing to you given your comment to Mr. Berezowsky that “the ultimate proceedings against Leibel are somewhat dependent upon the outcome of the Schafer matter.” want to be sure that there is no misunderstanding between you and me. The possibility exists that even if Mr. Schafer is acquitted we might still proceed against Mr. Leibel. (emphasis added) further letter from Mr. Fox to Mr. Plemel dated February 2, 2000, indicated: Thank you for your letter of January 28th. My understanding of the situation is as set out in your letter, that being that the Crown will review the charges against Leibel in light of the decision, whatever it may be, by Mr. Justice Klebuc. (emphasis added) [22] It is my conclusion that there was clearly no promise by the Crown that it would be bound, in its proceedings against the applicant, by the findings of Klebuc J. in relation to the Schafer matter. This point was frankly conceded by counsel for the applicant in oral argument. On the other hand, do not think that the Crown can deny that the applicant reasonably expected that the Crown would carefully consider those findings and reassess its position in relation to this accused in light of them, and, further, that the applicant agreed to waive any objections in relation to the delay arising from awaiting the judgment of Klebuc J. on that basis. More than that, Crown counsel indicated to the Court, in oral argument on this application, that it was expected that it would be beneficial to both parties to have the findings of Klebuc J. before proceeding against Leibel. It is difficult to see what advantage the applicant might gain, unless it was the real possibility that certain of the charges against him might be dropped in light of the rulings of Klebuc J. After all, he was compelled to testify at the Schafer trial and was subjected to lengthy cross-examination by the Crown. In addition, Crown counsel indicated to the Court in oral argument, and in its written brief in the passage quoted above, that the reason it wanted to proceed with the Schafer matter first was that if the Court in that matter determined that certain of the particular incidents or dealings relied upon in that charge were not fraudulent, (i.e. the investors were simply not defrauded in relation to those matters) then “the Crown would have to consider carefully whether to proceed in relation to those matters in relation to Leibel.” [23] Certainly, it appears to have been Klebuc J.’s understanding that his findings would have some bearing on the proceedings against Leibel, for, following closing arguments, he stated that he would take time to give lengthy reasons for two reasons: “Number one, to work my way through it and make sure don’t miss anything; and secondly, provide you with some guidance with respect to the other case that’s outstanding.” [24] The Crown takes the position that it is not in any way bound in this proceeding by any of the findings of the Court in the Schafer matter. Nonetheless, it contends that it did, in any case, take certain matters arising from that trial into consideration in redrafting the new indictment against Leibel. In particular, it “simplified” the new indictment against Leibel in light of critical remarks made during the course of that trial from the Bench about the complexity and degree of overlap of the original indictment. Further, in view of argument presented and comments made by Klebuc J. during the Schafer trial the Crown has chosen not to proceed with the former count #6 against Leibel, which alleged that Leibel and Schafer committed fraud by charging unauthorized management fees and by concealing the overdrawing of funds by the fund manager. In addition, since the present indictment issued, the Crown has decided to delete from the indictment two of the particulars given for count #1: those described in para. (c), on the ground, agreed by the defence, that that allegation is really part of the allegation in para. (b), and para. (d). The Crown indicated to the Court that decision had been made not to proceed with the latter allegation in light of questions raised by this Court, on the first day of the argument of this application, as to why the Crown was pursuing this allegation given the clear finding by Klebuc J. that Schafer had concealed the relevant aspects of this matter from Leibel. [25] With regard to other matters which the applicant says were determined by Klebuc J. in his favour, the Crown makes three arguments. With regard to some of the matters it argues simply that the findings of Klebuc J. do not on proper interpretation exonerate Leibel. It points out that nothing can be read in to the fact that Klebuc J. often did not make any explicit findings against Leibel, for, of course, the nature and degree of Leibel’s own involvement or guilt was not matter that was, in itself, before him. Indeed, in the circumstances, it would have been improper to make findings explicitly against Leibel, who was not the accused before him and therefore not in position, despite his role as witness for Schafer’s defence, to provide full answer and defence to those allegations. [26] Secondly, the Crown argues that in relation to some of the matters in which Klebuc J. may appear to make findings favourable to Leibel, it is important for the Court to recognize that, because Leibel was not at jeopardy in the Schafer trial and his guilt was not itself in issue, the Crown would have focussed its evidence and arguments on the particular involvement of Schafer, and would not necessarily have pursued or emphasized those aspects that also proved the nature or extent of Leibel’s involvement. [27] Finally, in some cases the Crown frankly concedes that in relation to some matters, the conclusions of Klebuc J. would also, if they were accepted, exonerate Leibel, but argues that it is not bound in the present proceeding by those findings. Because Mr. Schafer was, in the final analysis, convicted, the Crown chose not to appeal those findings of Klebuc J. with which it did not agree. The primary example of this last rationale is in relation to the allegation against Leibel under para. (j) of count #1. [28] Assessment of these arguments requires more detailed consideration, at this point, of the conclusions of Klebuc J. as those relate to the indictment now before me. will consider the allegations of the indictment one by one, in light of the arguments made to me by counsel. Analysis of the allegations in the current indictment in light of the Schafer judgment. Count (a): Allegation that ICC’s funds were used in ways that did not conform with the ICC offering memoranda or promotional material or with the Immigrant Investor guidelines. [29] This allegation corresponds to Count #1, paras. (h) and (j) of the Schafer indictment, which Klebuc J. saw as involving essentially the same facts as those relevant to clause (b) of count #1 and Count Nos. and 3, all of which in turn involved investments that failed to comply with the investment guidelines because they were investments in businesses outside of Saskatchewan, and failed to comply with obligations imposed by the offering memorandum to seek investment advice from Peat Marwick and ICC’s auditors. Clause 1(b) alleged fraudulent loan to restaurant in San Antonio, Texas. Schafer was convicted in relation to this incident. It is the same incident as that described in clause 1(d) in the current Leibel indictment, and is one that the Crown has now indicated that it will be withdrawing, in light of Klebuc J.’s finding that Leibel was actively mislead by Schafer as to the nature of this investment. [30] Count #2 in the Schafer indictment is essentially the same as clause 1(f) of the current Leibel indictment, using $1,695,000 to purchase 5,500,000 shares of Giant Bay Resources Ltd. It is discussed in paras. 101-110 of the Schafer judgment. Schafer was found guilty of this charge. The applicant claims, “In summary, Justice Klebuc found that Leibel’s lack of involvement with Schafer’s activities rendered Leibel unable to accurately comment on Schafer’s state of mind. It is respectfully submitted that with the finding that Leibel was not involved, there can only follow finding that he was not culpable.” [31] With respect, do not agree that Klebuc J. can be read as finding that Leibel was “not involved” with this transaction, or as in any way exonerating him in relation to it. He did not, of course, make any finding that Leibel was criminally involved, for Leibel’s guilt was not in issue before him. do not find the allegation in this part of the Leibel indictment necessarily inconsistent with any part of the Schafer judgment. [32] Count #3 of the Schafer indictment is the same as clauses 1(g) and (h) of the indictment herein. It alleges the advance of ICC funds of approximately $2,250,000 to Giant Bay Resources Ltd. and from there to bank account in Malaysia. Schafer was convicted of this count. The applicant argues that the reasoning of Klebuc J. in that regard exonerates him in that Klebuc J. “did not attribute any mala fides to Leibel.” Again, do not agree that the comments of Klebuc J. in this regard can be read as finding of Leibel’s innocence in this regard, or as in any way necessarily inconsistent with the allegations against Leibel in paras. (g) and (h) of Count #1. [33] Clause 1(a) may also overlap, in my view, with other allegations in the within indictment, such as clause 1(e), but these can be dealt with separately. The above is sufficient to conclude that the allegation against the applicant in Count #1(a) is not inconsistent with the findings of Klebuc J. and can stand regardless of any agreement by the Crown to review those findings or any argument based on issue estoppel. Count #1(b): allowing $513,000 of ICC funds to be used by Trirak Industries Corporation, to the benefit of Richard Leibel and Trirak Industries and to the detriment of ICC and its preferred shareholders. [34] This allegation is equivalent to the allegation in clause 1(a) of the Schafer indictment. It is discussed by Klebuc J. at paras. 48-58. Klebuc J. found that this loan transaction did not support conviction against Schafer. [35] Trirak was Saskatchewan business in which Leibel served as officer and director, for which he provided considerable capital and for which he had personally guaranteed substantial operating loan from the Bank of Nova Scotia. The findings of Klebuc J. support the Crown’s contentions that at the time funds were advanced to Trirak, this company was in receivership and the Bank of Nova Scotia had demanded repayment of its operating loan. $271,130.75 of the funds advanced by ICC were used to pay this loan. [36] Klebuc J. made number of findings which, in my view, would be inconsistent with finding that this transaction was fraudulent. These include the following: accept Leibel’s testimony to the effect that all sums advanced by ICC were used to keep Trirak operating and that he never took any portion of the loan proceeds and further, personally advanced Trirak an additional $148,000 to keep it going. (at para. 51) am further satisfied that nothing in the 1988 Guidelines published by EIC prohibited the Trirak loan in the absence of evidence that the loan was an artificial transaction. In fact, the policy objectives set out in the 1988 Guidelines contemplate venture capital loans being made by private investment syndicates to assist small business ventures who require capital and have limited access to traditional sources. (at para. 55) accepted the evidence of Leibel with respect to the initial intent and purpose of the Trirak loan, the arrangement between FMI and Yokie, and the underlying purpose for assigning the under-secured Trirak loan to Yokie. (at para. 56) have further concluded that the representations made by Leibel in his letters to ICC of December and 21, 1988 were not intended to be misleading. (at para. 57) [37] Crown counsel argues that, while these findings may be interpreted as exonerating Leibel and, indeed, as finding that there was nothing fraudulent in this transaction, it should not be bound by this finding because it did not, in the Schafer trial, “focus” its arguments in relation to this transaction on the role of Leibel, who was much more extensively involved in it, than was Schafer, who only became president of ICC after this loan had been made. Rather, it focussed on the role of Schafer, which was much less significant. In the Leibel trial, it is argued, much more would be made of the financially shaky circumstances of Trirak at the time of the ICC loan, of Leibel’s personal financial interest as guarantor of the Bank of Nova Scotia loan, and of the lack of any independent assessment of this investment. [38] In response, however, the applicant filed copy of the written submission of the Crown in the Schafer trial, showing that these issues were fully covered by it in argument. In his judgment, Klebuc J. explicitly acknowledged the facts relied upon by the Crown and nonetheless found that the ICC loan to Trirak was not fraudulent. [39] In consideration of all of these factors, it is my conclusion that the findings of Klebuc J. on this matter are inconsistent with the allegations of fraud in this regard as against the applicant Leibel. It remains to consider, below, whether it is an abuse of process on the part of the Crown nonetheless to proceed with these allegations in the instant matter. Counts #1(c) and (d) do not need to be addressed because the Crown has indicated that it will not be proceeding with those matters. Count #1 (e): diversion of funds from 590188 Saskatchewan Ltd. to other companies in which Schafer or Leibel had an interest. [40] Schafer was convicted in relation to this matter. The applicant invites me to read the comments of Klebuc J. in relation to funds received, in particular, by the Willows, as exonerating Leibel. cannot do so, for reasons argued by the Crown. The Court, in the Schafer trial, was not addressing the question of Leibel’s guilt and it would, indeed, have been improper for it to do so. In addition, funds other than those going to the Willows are involved in this allegation. conclude that the findings of Klebuc J. in regard to this allegation are not inconsistent with the charge against Leibel, and that the applicant’s argument in relation to this matter cannot succeed. Count #1 (j): representing to ICC’s investors that 30 percent of their investment would be invested in Canadian Government Insured Certificates and then using that portion of their investment in other ways. [41] This was alleged in Count #4 in the Schafer indictment. Klebuc J. dismissed this count on the basis that any reliance by investors in this representation was superseded by an amended offering memorandum provided to all investors: All investors executed the Guideline 16 Investor’s Letter of Acknowledgement and thereby elected not to withdraw from the investment. There was no evidence of ICC advising investors that the representations in the Marketing Brochures were no longer operative, but it would have been evident on reading of the Amended Offering Memorandum that material change in the investment criteria had been made (at para. 125) He also found: Leibel testified that ICC intended to invest 30 percent of the capital raised in GICs or bank deposits but was unable to because of the position taken by EIC, Ferguson and Lamba that such investments would contravene the 1988 Guidelines. He stated investment plans were altered to appease EIC. accept his testimony on this point. (at para. 126) [42] The Crown concedes that these findings are inconsistent with Leibel’s guilt on this charge, but says that it simply does not agree with the findings of Klebuc J. on this point and does not think that it is bound by them in proceeding against Leibel. Count 2: theft of proceeds of sale of ICC’s shares in Giant Bay Resources Ltd. [43] This is the same allegation as contained in Count #5 of the Schafer indictment. Schafer was convicted on this count. The applicant argues that central to this finding was Schafer’s use of hidden bank account, of which Klebuc J. specifically found that Leibel was unaware. have read this portion of the Schafer judgment carefully. It is my conclusion that while none of the express findings of Klebuc J. in relation to this count would in themselves lead to conviction of Leibel in relation to it, neither do they necessarily exonerate him, except in relation to knowledge of the hidden bank account. am unable to conclude from this judgment that it is inconsistent with the charge against Leibel. Count #1 (i): postponing ICC’s mortgage and caveats on the Willows Golf Course in favour of Household Trust Mortgage in approximately November of 1990. [44] This allegation raises different issue. It is new charge with which Leibel has not had the benefit of Preliminary Inquiry. The applicant submits that it is an abuse of process to lay new charge at this stage of the proceedings. No authority is cited for that proposition and do not accept it. [45] In summary, am satisfied that on proper reading of the Schafer judgment finding of guilt against the applicant in relation to the allegations contained in Count #1, subparas. (b), (d) and (j) would be inconsistent with specific findings of Klebuc J. in that matter. As have indicated, the Crown has already agreed not to proceed against the applicant in relation to subpara. (d) for that reasons. It remains to consider whether proceeding on the other two matters constitute an abuse of process and ought to be stayed. [46] In his written brief the applicant argues that for the Crown to proceed against Leibel where this would be inconsistent with the findings in Schafer would be “breach of an agreement” with the Crown that was relied upon by the applicant in waiving objections of delay while awaiting the Schafer judgment, and therefore constitutes bad faith on the part of the Crown and gives rise to grounds for stay on the basis of abuse of process. The brief argues, at para. 55: It is important to remember that in the case at bar, the Accused is not seeking stay of all of the charges against him because of the Crown’s breach of the agreement. He is simply seeking Stay of Proceedings upon those charges which cannot be sustained in light of Mr. Justice Klebuc’s findings and which he anticipated that the Crown could have stayed of its own volition upon receipt of Mr. Justice Klebuc’s findings. This is akin to the situation in R. v. Burlingham, 1995 CanLII 88 (SCC), [1995] S.C.R. 206 [a case in which the Crown breached plea bargain agreement. The Court held that this constituted an abuse of process but warranted remedy less extreme than stay of all proceedings and substituted conviction for the lesser included offence which was the subject of the plea bargain] This is all the Accused is asking here. He is not asking for an outright stay of all the charges by virtue of the Crown’s breach of the agreement. He is simply asking that the Court step in and uphold the agreement. He respectfully requests that the Court undergo detailed review of the Indictment against him and consider whether those charges ought to be proceeded with in light of Mr. Justice Klebuc’s decision. The Crown agreed and promised to do so but they did not. The Accused now is asking the Court to do so. At para. 56, the applicant’s brief discusses the decision of the Supreme Court of Canada in R. v. Carosella, 1997 CanLII 402 (SCC), [1997] S.C.R. 80 and the factors enumerated in that case that the Court should take into account in granting stay. While this case deals with the destruction of evidence and the effect of that on the ability of the accused to make full answer and defence, the applicant argues that the principles are the same, and continues: These factors are particularly instructive here. The failure of the Crown to uphold its part of the bargain cannot be remedied through further adjournment or by an exclusion of evidence. The only rational and logical remedy is for the Court to undergo the exercise which the Crown promised but then failed to do. The Crown Prosecutor maintains an essential role in the criminal justice system. When that role is compromised by the Crown failing to abide by the agreements which it has struck, the Court must step in to ensure that justice is done. Otherwise, the system does not work. The brief then cites number of cases in which the courts found that the Crown had failed in its duty to exercise good faith, including R. v. Chaplin, 1995 CanLII 126 (SCC), [1995] S.C.R. 727 (a case in which the Crown beached its obligation for disclosure), R. v. Elijah, [1989] O.J. No. 2353 (DCO No. 1419, September 13, 1989, Ontario District Court), and R. v. MacDonnell, 1997 CanLII 369 (SCC), [1997] S.C.R. 305. None of these cases is entirely on point with the facts of this application. Two “breach of Crown agreement” cases relied upon are R. v. Burlingham, 1995 CanLII 88 (SCC), [1995] S.C.R. 206, which involved an agreement between the police and the accused that he would only be charged with second degree murder if he disclosed the location of the murder weapon, and R. v. L.B.D. (1995), 1995 CanLII 5988 (SK QB), 126 Sask R. 95 (Q.B.), in which the police had agreed not to charge the accused with sexual assault if he in turn agreed to undergo treatment. [47] It is my view that in light of the Crown’s clear statement that it did not undertake to be bound by the judgment of Klebuc J., but merely to “review” the matter in light of that judgment, any explicit agreement between the applicant and the Crown was only to the effect that it would exercise its discretion in bona fide way in light of the findings of Justice Klebuc. Thus, in order to prove breach of this “agreement”, the applicant would have to satisfy this Court not merely that that discretion could and should have been exercised differently, but that the Crown exercised its discretion in bad faith. [48] On the other hand, as indicated above, it is clear from the submissions made to me that both the Crown and the applicant understood and expected that the determinations by the trial judge in Schafer would have some bearing on the Crown’s decision as to how to proceed in relation to Leibel, and, in particular, that the Crown would want to know whether Klebuc J. found that the particular matters alleged were fraudulent at all. [49] In oral argument, counsel for the applicant made it clear that it did not intend to take the argument so far as to allege bad faith, based solely on the “understanding” between the applicant and the Crown with respect to the matter of awaiting the Schafer judgment before proceeding. Certainly no improper motive was alleged against the Crown. Rather, in oral argument, the applicant focussed on the second aspect of this argument, based upon the principles of res judicata or issue estoppel which, it was argued, should be assessed in light of the understanding between the Crown and the applicant in relation to the Schafer matter. The relevance of the parties’ understanding was therefore not advanced so much as an independent ground for stay of proceeding but rather as part of the context in which the Court should determine whether the issues on some matters between the Crown and the applicant had been fully canvassed in the Schafer judgment. [50] This seems to me to be the right way to put the argument. Clearly, the applicant cannot argue autrefois acquit, the criminal law equivalent of res judicata, in relation to the Schafer judgment, because he was not at jeopardy in the Schafer trial. The question, however, of whether it would be abuse of process to prosecute the applicant in relation to financial transactions that have determined that Klebuc J. clearly found did not violate the investment agreements and requirements and therefore did not constitute fraud raises the more complex issue of the extent to which finding to the contrary in trial of the applicant, inconsistent with the clear findings of Klebuc J. in Schafer, would bring the administration of justice into disrepute and raise issues of fairness in relation to this accused. [51] Certainly, in the civil context, the courts have held that it is no longer essential that the parties to previous determination be identical for an argument of res judicata or issue estoppel to succeed. In some circumstances it is sufficient if the party against whom the plea is raised was party and had full opportunity in the earlier proceeding to make its case. An example is the decision of the Saskatchewan Court of Appeal in Bomac Construction Ltd. et al. v. Stevenson et al. (1986), 1986 CanLII 3573 (SK CA), 48 Sask. R. 62, involving an airplane crash in northern Saskatchewan. In an action by one of the plaintiffs against the owner and the pilot, the court found that the pilot had been negligent and awarded damages against both defendants. second passenger then sued the owner and pilots and was successful in striking out their defence (except on the issue of damages) on the basis that it raised issues already determined. The Court of Appeal agreed, holding that even though the second action involved new plaintiff, the basic issues had been fully canvassed and determined in the first proceeding and therefore, To rule otherwise would be to permit an abuse of process through the prospect of multiplicity of actions, inconsistent results and no fitting end to the litigation process. (at 67) The Court agreed that although this case might not satisfy the traditional requirement of identity of parties, for ruling of res judicata or issue estoppel, relitigation would nonetheless constitute abuse of process. [52] In the context before me, the issue depends in my view both on the extent to which findings against Leibel, in regard to the matters have identified, would be inconsistent with findings in the Schafer trial, (a matter have determined above, in the applicant’s favour, in relation to subparas. 1(b) and (j)) and also on the extent to which the issues in relation to those matters can be said to have been fully dealt with, in light of all the available evidence, by the trial judge in Schafer. [53] In this regard, rely on the following facts: 1. The original indictment against Schafer and Leibel jointly was identical to the indictment against Schafer after the charges were severed and it alleged fraud based on financial transactions that favoured the interests of both Schafer and Leibel. The allegations at issue in the present indictment against Leibel are identical. It is clear that Leibel’s interest and involvement in these matters was fully at issue in the Schafer trial and was fully canvassed by the trial judge. 2. While the Crown says that its focus was different in the Schafer trial, the written argument submitted by the Crown in that trial does not reflect the differences claimed and in fact covers all of the points the Crown now indicates that it intends to pursue against Leibel. 3. Both the Crown and the applicant expected the judgment of Klebuc J. to resolve some of the issues raised by the Leibel indictment, if Klebuc J. found that the circumstances relied upon did not support finding of fraud. (a) While the Crown says that it reserved the right to proceed, anyway, it also says that it was assumed that it would be of benefit to both parties to have Klebuc J.’s judgment (where this would only benefit the accused if the Crown accepted that judgment as determinative of issues found in his favour). (b) Crown counsel indicated before me that the very reason that the Crown wished to proceed against Schafer first was that it would get clearer ruling as to whether certain financial transactions were fraudulent because Schafer was an officer of ICC while Leibel was only working “behind the scenes”. am satisfied that both parties expected that the Crown would not proceed against Leibel in circumstances where Klebuc J. made clear finding that the transaction alleged was not fraudulent, at least in the absence of special circumstances that would distinguish the nature of that transaction for the purpose of the Leibel charge. This, again, indicates that the Crown both expected and intended the issues in question to be fully canvassed and determined by Klebuc J. (c) Justice Klebuc himself expected that his judgment would have some bearing on the Leibel matter and therefore, it can be assumed, addressed his findings with that in mind. (d) The Crown has in fact accepted the factual finding of Klebuc J. in relation to one of the allegations against Leibel, that set out in subpara. 1(d). (e) Leibel testified at the Schafer trial, was on the stand for three days and was subject to full cross-examination by the Crown for two of those days. [54] These considerations lead me to conclude that the issues in relation to the two allegations that have identified were fully argued by the Crown and fully canvassed by the trial judge in the earlier trial. have already indicated my conclusion that, in relation to those two allegations, finding of guilt against the accused in the present proceeding would be inconsistent with the clear findings and determinations of Klebuc J. [55] In these circumstances, have concluded that to permit the Crown to say simply that it does not agree with the determinations of Klebuc J. on these two matters and wishes to have the matters tried again with fresh determination in this proceeding is not good enough. The potential for inconsistent findings in all of these circumstances puts at issue the integrity of the system of justice and public confidence in the system as well as raising issues of fundamental fairness to this accused. In R. v. Elijah, supra, the trial judge commented: also raised an argument as to what as juror would think if convicted [the accused] of attempted murder and then heard afterwards that the perpetrator of the crime had in fact pleaded guilty to lesser offence [and] the plea was accepted by the Crown. comparable question could be posed in this case. [56] have concluded that in the circumstances have attempted to describe in some detail, it would be an abuse of process for the Crown to pursue the allegations raised in subparas. (b) and (j) of count #1 of the indictment. There shall be an order staying proceedings in relation to these two allegations. The Crown has earlier indicated that it does not intend to proceed with subparas. (c) and (d). The indictment shall be amended to reflect this ruling and these decisions. 3. Has there been unreasonable delay in bringing this matter to trial in breach of the s. 11 of the Charter? [57] The original information in this matter was sworn October 4, 1996, over four years ago. The investigation and allegations against this accused were matters of public knowledge for several years prior to that. This is sufficient to raise an inquiry as to the reasons for the delay. [58] On a review of this matter, I am in fundamental agreement with the submission of the Crown that there has not been unreasonable delay in light of the complexity of the charges, the reasons for the delay, and the agreement by the applicant not to object to certain periods of delay. In particular, rely on the following consideration: First, find on the information before me on this application, including affidavits from the investigating officers, that the pre-charge investigation of this matter was conducted reasonably and efficiently given the difficulties encountered. Following the laying of the charges, there was ongoing disclosure and various court appearances including the following: October 30, 1996: The first appearance of the applicant and his co-accused in Provincial Court on the charges. motion to quash the information was brought on this date. It was argued and then ultimately the motion was dismissed on December 16, 1996. October 30, 1996 to April 30, 1997, inclusive: During this time there were six court appearances in Provincial Court with various other motions being brought. On April 30, 1997, both accused elected to be tried by Provincial Court but refused to plead and not guilty plea was entered by the court pursuant to section 606(2) of the Criminal Code. Dates for further motions were made available for September of 1997 and trial time was made available for October and November of 1997. April 30, 1997 to October 14, 1997: There were seven more appearance in court between these two days during which the accused made various applications. August 26, 1997: The accused re-elected to be tried by judge and jury pursuant to section 561 of the Criminal Code. October 14, 1997 to November 21, 1997: The preliminary hearing took place during this time. On November 21 the matter was adjourned for argument on committal to Dec. 3, 1997. December 3, 1997: Argument was presented by Crown and Defence regarding committal. The matter was adjourned to December 8, 1997 for decision on committal. December 7, 1997: The preliminary hearing judge committed both accused to stand trial. Twenty Eight witnesses were called at the preliminary hearing. There was no unreasonable delay. The matter was handled with reasonable efficiency in Provincial Court. The preliminary hearing generated 2436 pages of typed transcript which was bound in eleven volumes. The Crown received its copy on July 7, 1998. The delay occasioned by the preparation of the transcript was not unreasonable. On July 24, 1998, joint indictment charging Messrs. Schafer and Leibel was filed with the Court of Queen’s Bench. [59] Following this, the applicant moved for the charges against himself to be severed from those against Schafer and was successful. The parties then agreed that the Schafer matter would proceed to trial first and then agreed to adjourn the trial until the Schafer judgment came down, as is described above. The applicant agreed to waive objections to delay during this period. [60] To this point, am satisfied that there was no unreasonable delay. Indeed, most of the passage of time was at the instance of the applicant, pursuing his legitimate rights, including the right of appeal in some instances, before the matter could proceed. [61] Of more concern is the passage of time since the Schafer judgment. The parties had agreed to trial date of September 28, 2000. This date was adjourned to March 5, 2001 after the Crown issued new indictment against the applicant following the receipt of the Schafer judgment. The applicant argues that this adjournment was necessitated by the unreasonable action of the Crown in amending the indictment to produce global charge without particulars of the allegations it was still pursuing against Leibel, compelling the applicant to apply to the trial judge, who was not determined until early September, 2000, to get particulars. [62] am sympathetic to aspects of this claim. agree that the applicant reasonably expected the Crown to indicate clearly, following the judgment of Klebuc J., which allegations it was still going to proceed with against the applicant. The indictment that issued on June 29, 2000 gave the applicant no information at all on this point and certainly necessitated an application for particulars and likely, as well, some adjournment of the trial. The total amount of the delay to March 5, 2000, however, cannot be attributed to this factor. [63] As the Crown rightly points out, at pre-trial conference held August 12, 2000, counsel for the applicant indicated that he intended to seek an adjournment of the trial date and that, in addition to an application for particulars, would likely be bringing number of other applications prior to trial including motion to quash search warrant on which an evidential hearing would be required and possible motion for change of venue. Mr. Fox also indicated at that time that he was unavailable to commence the trial, which is presently scheduled for two months before judge and jury, during the months of November and December, 2000, due to other commitments and, indeed, that realistically he was not available before February 12, 2000. In the meanwhile, it has been possible to schedule hearing of the other applications that the defence would have brought, in any event, for dates between September 28, 2000 and the new trial date of March 5, 2001. This includes what might be lengthy evidential hearing on the motion to quash the search warrants. Accordingly, the actual delay caused by the postponement of the September, 2000 trial date is considerably less than the March date would indicate, and much of this is due to the lack of availability of defence counsel. [64] In light of all of these considerations, have concluded that there has not been unreasonable delay in bringing this matter to trial. This application to quash the proceedings is dismissed. Conclusion [65] The application to quash count #1 on the basis that it charges more than one transaction contrary to s. 581 of the Code is dismissed. [66] The application to stay proceedings on the basis of findings made by Klebuc J. in the Schafer trial is allowed in part as follows: [67] The Crown’s proceeding in relation to the particular charged in subpara. (b) of count #1 regarding the use of ICC funds in the amount of approximately $513,000 for Trirak Industries Corporation is stayed on the grounds that to allow the Crown to now proceed against this accused with that allegation would constitute abuse of process. [68] The Crown’s proceeding in relation to the particular charged in subpara. (j) of count #1 regarding the alleged representation to investors that 30 percent of their investment would be invested in GICs is stayed on the ground that to allow the Crown to now proceed against this accused with that allegation would constitute abuse of process. [69] note that the Crown has already advised the Court that it will not be proceeding with either subpara. (c) or (d) of count #1. [70] The application for stay of proceeding on the ground of delay is dismissed.

FIAT. The accused applied for an order pursuant to s.581(1) of the Criminal Code quashing count 1 on the grounds it offended the 'single transaction rule'; an order pursuant to ss.7 and 24(1) of the Charter and the common law doctrine of abuse of process that portions of the indictment as amended be quashed or stayed on the basis of the judgment in the trial of the former co-accused, Reginald Schafer; alternatively, an order staying the proceedings on the grounds of unreasonable delay in bringing the accused to trial. He argued the Crown would be in breach of an agreement in which he waived delay to proceed on the charges on which inconsistent findings could be made and would constitute bad faith. HELD: 1)The application to quash count 1 on the basis it charges more than one transaction was dismissed. The count particularizes in the alternative various ways in which the accused is alleged to have defrauded the investors of ICC by using funds of ICC to advance his or Schafer's interests. The case law cited by both parties clearly establishes that the word 'transaction' as used in s.581(1) is to be interpreted broadly and flexibly, and that a single transaction may, in this sense, include a number of acts or incidents occurring over a period of time. 2)Count 1 of the indictment was to be amended. The application to stay proceedings on the basis of findings made in the Schafer trial was allowed in relation to the particular charge in subpara.(b) of count 1 regarding use of ICC funds in the amount of $513,000 for Trirak along with subpara.(j) regarding alleged representations to ICC's investors that 30% of their investment would be invested in GICs. To allow the Crown to pursue these allegations would be an abuse of process. The Crown had indicated it would not proceed with subparagraphs (c) or (d). 2)There had not been unreasonable delay in light of the complexity of the charges, reasons for the delay, and the agreement by the applicant not to object to certain portions of delay. There was ongoing disclosure and there were various court appearances following the laying of charges.

5_2000skqb565.txt

J. 1985 S.K. No. 1928 1986 S.K. No. 2158 IN THE SUPREME COURT OF NOVA SCOTIA TRIAL DIVISION BETWEEN: PATRICK OWEN SWINAMER, and ATTORNEY GENERAL OF NOVA SCOTIA, representing Her Majesty the Queen in the right of the Province of Nova Scotia, ‑and REGINALD REDDEN, DOROTHY REDDEN, EARL LOCKHART, and VIOLET LOCKHART, Third Parties HEARD: at Kentville, Nova Scotia, before the Honourable Mr. Justice William J. Grant, Trial Division, on November 19, 20, 21, 1990. DECISION: February 20, 1991 COUNSEL: Mr. D. J. Kimball, Mr. Nash Brogan, for the plaintiff Ms. Heidi Foshay, Mr. J. Davies, for the Attorney General of Nova Scotia Mr. E. J. Flinn,Q.C., for Reddens and Lockharts 1985 S.K. No. 1928 1986 S.K. No. 2158 IN THE SUPREME COURT OF NOVA SCOTIA TRIAL DIVISION BETWEEN: PATRICK OWEN SWINAMER, and ATTORNEY GENERAL OF NOVA SCOTIA, representing Her Majesty the Queen in the right of the Province of Nova Scotia, ‑and REGINALD REDDEN, DOROTHY REDDEN, EARL LOCKHART, and VIOLET LOCKHART, Third Parties GRANT, J.: At about 3:00 p.m. on November 26, 1983 the plaintiff was in good health and driving his half ton truck on the Falmouth Back Road, so called, public highway, near Falmouth, Nova Scotia. A tree fell on his truck, crushing him inside the cab. He is now a paraplegic. The action had been presented in two steps, by agreement of counsel. Liability is to be tried now and the quantum of damages is to be determined later. This action was originally brought by the plaintiff against the defendants, Mr. Mrs. Redden, the owners of the property and the defendants, Mr. Mrs. Lockhart as the occupiers of the property on which the stump or trunk of the tree was located. It was originally framed in nuisance and negligence. separate action also in nuisance and negligence was started against the defendant, the Attorney General. The actions were consolidated and joined. The plaintiff's action against the defendants Redden and Lockhart was discontinued. The action against this defendant, the Attorney General, was not discontinued. This defendant, the Attorney General, did not consent to the discontinuance against the other defendants. This defendant has joined the defendants Redden and Lockhart as Third Parties seeking contribution and/or indemnity from them. The action against this defendant is now in tort for negligence. It is under the general duty of care and under special duty of care arising from its implementation of programme for the removal of trees which were an immediate hazard to the public. The Falmouth Back Road is public highway, it is paved and the right‑of‑way is 66 feet in width. It runs generally North and South from Falmouth to Route 14 leading to Chester. The Lockhart farm is located on the West side of the road. The third party Earl Lockhart is 82 years of age and not in good health. He is the husband of the third party Violet Lockhart. The third party Dorothy Redden is daughter of the Lockharts and the wife of the third party Reginald Redden. The property was the Lockhart homestead but was conveyed to the Reddens in 1974. The Lockharts continued to occupy the premises. The tree which fell was an Elm said to be about 110 years old. The stump was located about 2.9 feet beyond the highway right‑of‑way. It was estimated to be about 60‑70 feet tall. Its branches overhung the highway, probably at least to or beyond the centre line of the highway. This Elm tree was probably infected by Dutch Elm Disease (DED), although it had foliage, it may have exhibited some of the symptoms of DED. In addition it was infected by disease called Ganoderma applanatum. This was probably caused by mechanical wound in the base of the tree into which wound parasite had entered. The interior of the tree was killed and became pulpy, losing its strength, although the area near the bark was still healthy. On November 26, 1983 there was wind of about 37 km/hr. from the South West. It was cloudy but fine. The condition of the tree was such that even light wind (20 km/hr) could blow it over. It broke off from to 10 feet above the ground, leaving chair back stump, i.e., part of the outer layer of the tree was strong enough to partially hold. In the 1970's and early 1980's DED was causing extensive damage to Elm trees in this Province. The Town of Windsor appointed Tree Commission which took inventory of its trees and numbered and examined each one. If disease was suspected samples were sent to the Federal Forestry Lab in Fredericton to examine. If the tree was infected it was destroyed. Walter Stephens, age 73, is former member of the Windsor Tree Commission. He was Windsor fire chief in 1983 and attended at this accident scene. He had frequently driven past the Lockhart farm and had admired the stand of Elms. He knew they were old but prior to the accident he did not notice anything wrong with them. He did not notice symptoms of DED. During 1983 citizens were telephoning the local (Windsor) Department of Highways (Transportation‑D of T) office about dangerous trees overhanging the highways. Department of Transportation crews were doing what they considered they could do within their capabilities by using their chain saws in removing hazardous trees. There had earlier been maple tree problem but in 1983 the complaints related to Elms. In the Summer of 1983 the Divisional Engineer, Robert Colburne, decided to do an inventory of the trees which were dead and/or hazardous to the public. He appointed Gerald Allen, to examine the Elm trees. Allen came to of as foreman in the Summer of 1983. He had no training or expertise in trees or tree diseases. He was assigned survey technician, presumably to measure the location of the tree in relation to the highway. Allen was given no written instructions but was given notebook for log. He was to mark each such tree by numbered stake. The trees were to be noted in the log. If tree was considered by him to be an immediate hazard an asterisk was noted and that tree was examined by the engineer. took it some or most of those trees were removed. The engineer as well had absolutely no training or expertise relating to trees. In two or three weeks Allen located, staked and noted each Elm tree in the West Hants area which might be highway hazard. He examined the Elms at the Lockhart farm including the tree that fell. He marked as No. 150 an Elm about 400 feet from the tree that fell. It was not stated but Allen dealt principally with Elms. On the log page in evidence 10 trees are noted and all of them were Elms. Allen identified 234 such Elm trees in West Hants. Tree No. 150 was noted, an asterisk was placed by it in Allen's log but it was not removed until the Fall of 1984 when Redden removed it himself. Tree No. 150 was dead, it had no leaves or foliage in 1983. In 1974 the Town of Windsor employed Stan Kochanoff, Falmouth horticulturist, to examine the Elms in the Town Core area, to prepare an inventory and survey the health of each tree. This took months and cost $1,200.00. Kochanoff is currently doing the same for the City of Dartmouth for $10,000.00. Kochanoff said there were trained forestry personnel at the Provincial Department of Lands Forests in Truro and Debert. There were Federal forestry personnel at Kentville, at Truro and at Fredericton. Kochanoff lived near the Lockhart Farm and passed the trees frequently. In 1981‑2 he thought some of the Lockhart Elms had DED. By 1986 he considered that one of these trees was dead or the DED was quite advanced in one tree. He did not closely examine any of these trees. His comments were based on his observations as he passed the property in his car prior to the tree falling on the plaintiff. Dr. Jorgensen: In 1989 the defendant employed an expert, Professor Erik Jorgensen. He is Professional forester with Masters Degree in Forestry. He received his early education in Denmark. He had been at the University of Toronto from 1962 to 1973. He had been an Assistant Professor from 1959 to 1965, an Associate Professor from 1963 to 1967 and Professor from 1967 to 1973. He was research scientist and Chief of the Urban Forestry Program, Forest Management Institute, with the Department of Environment, Ottawa from 1973 to 1978. He was Consultant to the National Capital Commission. He was Director of the University of Guelph Aboretum and Professor of Environmental Biology from 1978 to 1986. He taught Arboriculture at the University of Guelph from 1980 to 1986. He retired from teaching in 1986 and since then has been working as consultant on forestry related matters. Professor Jorgensen was retained in 1989 and attended at the site on November 3rd. He located the stump of the tree which fell on the plaintiff. This was confirmed by Lockhart. He examined the relevant stump and found it was severely decayed. The wood had turned into pliable soft fibrous mass of whitish, light brown, colour. It revealed the presence of dead fruiting body or dead fungus identified as Ganoderma applanatum, the Artists Conk. Professor Jorgensen located stump 150 (as marked with survey marker). It had two young conks, or years old. It was the opinion of Professor Jorgensen that the tree had not fallen due to DED but from Ganoderma applanatum, the Artists Conk, in combination with wind. He gave the following description of decay caused by Artists Conk (Ganoderma (Fomes) applanatum): It Ganoderma applanatum, the Artists Conk, is one of the most commonly occurring decay fungi on hardwoods in Eastern North America. The fruiting bodies are found commonly on dead tree trunks and stumps of all the species of hardwoods. However, it is also widespread wound parasite of living trees where it can cause extensive decay in sapwood and particuarly invade the heartwood of standing, living trees. Most often the infection takes place in mechanical wound close to the base of the trunk or on major root. The outer part of an infected mechanical wound is in most cases hard and the extent of the decay underlying such wound can only be measured in drilling. The hard crust gives no indication of severe internal deterioration unless conk (or fruiting body) is present. Conk formation always indicates severe internal decay, which often extends for to metres in the central core of the trunk. On occasions, the fungus will fruit in tree crowns or major branches, where it has infected branch wound. In such cases, the decay in general is extensive for 2‑3 metres above and below the conk. The rot produced is referred to as white mottled rot and the fungus hyphae are congregated in the white areas which consist of almost pure cullulose. The fungus readily breaks down and feeds on lignin in the cell wall, but where nitrogen is in short supply, the cellulytic activity is reduced preserving the cellulose. Where nitrogen is available, hollows will be formed as the fungus removes all cell wall materials. When one examines trunk of an infected tree, which has been broken in storm, the break is across the grain and the decayed wood has tendency to break into cubes (see photo #7). When decay proceeds beyond this point, the wood is turned into cream coloured fibrous mass without any structure (photos #2, 4)." It was the opinion of Professor Jorgensen, based on the presence of the disease in the remains of the stump and the evidence of those who described the tree at the time of the accident, that the cause of the fall was due to the disease. It was the opinion of Professor Jorgensen that arborists and foresters are familiar with the fact that infected trees with conks are to be classified as "hazard trees" and should be removed. However, even if no conks are present, the trees may be equally dangerous and tree in full leaf may suddenly collapse due to Ganoderma applanatum. Professor Jorgensen found the "most likely and probable cause was the basal infection and rot by the fungus Ganoderma applanatum found on the stump of the fallen tree". He was unable to say that conks of this fungus were present at the time of the accident. He considered the wind on that day to be sufficient to fell the tree. He noted that an unsupported tree with basal rot may fall with very little force being exerted. Professor Jorgensen expected there was an older mechancial wound (from tractor or farm machinery), as was on tree No. 150 nearby. He considered the wound would be "fairly large" (at least inches across), to serve as "an infection court". Professor Jorgensen said the presence of the artists conk indicates severe decay and knowledge of this conk and its activity is prerequisite for its recognition. However, if there was no conk but wound, then the presence or absence of the disease could not be determined without drilling into the tree trunk. He concluded there would have to be an inspection by person trained in tree pathology to detect the disease and its extent, in the tree. He concluded that only by drilling into the wound, or the presence of fruiting body (fungus) could determine the extent of the decay and evaluate the hazard. accept the evidence of Professor Jorgensen that the tree which fell on the plaintiff was diseased and had extreme decay caused by Ganoderma applanatum. find that the wind blew the tree down. find the disease entered the tree through mechanical wound, probably from farm machinery. Was Conk present Before the Tree fell?: At the time of his inspection on November 3, 1989 Professor Jorgensen found dead fruiting body (conk) on the stump at soil level. (Para. 2.1 his report). It is described as "an old dead fruiting body of this fungus was found on the base of this stump". (para. 4.1 of his report). The stump of tree No. 150 exhibited large young conks at various levels from soil level. These were estimated to be to years old. Professor Jorgensen thought the conk on the tree that fell had been there for 3‑4 years. He described it having been there for considerable time, as the cells were dead when he inspected it. Professor Jorgensen said it would require person with some qualifications to recognize the symptoms. There would have to be careful inspection of each tree, looking for major wounds, cracks on the stem, dead branches, etc. If there was mechanical wound but no fungus present then the suspected area would have to be drilled and the drill core analyzed to see if the disease was present. highly qualified expert would be required to analyze the core sample. Professor Jorgensen agreed the of in Hants could employ an expert to supervise and train their own personnel. He agreed someone with minimal training could detect the mechanical wound. Such wound he said was major thing to look for. An expert should then examine the wound. If there was fungus the expert could determine the kind of fungus, the cause of the decay and the extent of the decay. If no fungus sample could be taken and examined, if required. Professor Jorgensen said that this decay, when examined, was 10‑12 years old and in his opinion resulted in the death of the tree. Professor Jorgensen thought there would be no fungus present in 1983. He said the fungus was common on stumps but rare on the area of wound parasite. He considered the fungus on this tree "most likely" formed on the stump rather than on the living tree. Findings on Tree that Fell: 1. accept the evidence of Professor Jorgensen and find that the tree which fell on the plaintiff was infected with Ganoderma applanatum and probably also had DED. 2. find the cause of the collapse was the Ganoderma applanatum combined with the wind and not caused by DED. 3. find the disease followed mechanical wound at the base of the tree. 4. find that at the time the tree fell there probably was no visible fungus or conk. 5. find that the mechanical wound left scar at least 3‑4 inches wide. 6. find the wound had probably been inflicted 8‑10 years before the tree fell, i.e. in 1972 to 1974. What was Probably visible in 1983?: Professor Jorgensen considered that there would be no fungus or conk present in 1983. The wound, however, would be visible. It may have been somewhat concealed by the overgrowth of the bark. As well the dead portion of the wound may not have been at the actual wound site. Was the Wound Visible Hazard?: am satisfied and find the wound would have been visible to be seen in an inspection of the tree. Professor Jorgensen thought an expert would have found the wound. However, he also said that it would not take an expert to find the wound. He said "it was plain to him" that it would not take an expert to find the wound. find with minimal training person could be qualified to examine the trees to check the foliage, to look for conks and to look for wounds. find that minimally trained person with instructions to examine tree for dead foliage (no new or green foliage); for fungi or fungus; or with wounds (mechanical or other) within feet of the ground, probably would have led to the identification of this tree as one requiring an inspection by more highly trained person. also find that once identified as tree requiring further inspection trained person would probably require core sample be sent for examination. Alternatively person with more expertise could be called in to look at the tree or if there were others with such wounds the person could examine all of them. find that upon examination of the core the disease would be identified and the extent of the disease would be determined. Had this been done in the Summer of 1983 find this tree would probably have been cut before it fell. The Law: The law in Canada was recently set out by the Supreme Court of Canada in Just v. British Columbia (December 1989) 1989 CanLII 16 (SCC), 64 D.L.R. (4th) 689. The case dealt with father and daughter who were driving from Vancouver to Whistler Mountain to ski. There had been heavy snowfall and they were forced to stop on Highway 99. While stopped large boulder weighing more than ton crashed down on their car from an embankment. The daughter was killed and the father was seriously injured. Action was brought against the Province for negligence in their maintenance of the highway. The Province had system for inspection and remedial work along that highway to safeguard traffic against rock falls. The action was brought in negligence. The Province submitted that its system of inspection and implementation were policy matters in respect of which no liability could arise. Cory, J. (speaking for the majority of the Court, Dickson, C.J.C., Wilson, La Forest, L'Heureuz‑Dube, Gonthier,JJ.) and Sopinka J. dissenting) said at pages 700‑709: "Test to be applied In cases such as this where allegations of negligence are brought against government agency, it is appropriate for courts to consider and apply the test laid down by Lord Wilberforce in Anns v. Merton London Borough Council, [1978 A.C. 728(H.L.). At pp. 751‑2 he set out his position in these words: Through the trilogy of cases in this House‑Donoghue v. Stevenson,[1932] A.C. 562, Hedley Byrne Co. Ltd. v. Heller Partners Ltd.,[1964] A.C. 465, and Dorset Yacht Co. Ltd. v. Home Office, [1970] A.C. 1004, the position has now been reached that in order to establish that duty of care arises in particular situation, it is not necessary to bring the facts of that situation within those of previous situations in which duty of care has been held to exist. Rather the question has to be approached in two stages. First one has to ask whether, as between the alleged wrongdoer and the person who has suffered damage there is sufficient relationship of proximity or neighbourhood such that, in the reasonable contemplation of the former, carelessness on his part may be likely to cause damage to the latter‑in which case prima facie duty of care arises. Secondly, if the first question is answered affirmatively, it is necessary to consider whether there are any considerations which ought to be negative, or to reduce or limit the scope of the duty or the class of person to whom it is owed or the damages to which breach of it may give rise: see Dorset Yacht case, [1970] A.C. 1004, per Lord Reid at p. 1027. .. Nevertheless, it is sound approach to first determine if there is duty of care owed by defendant to the plaintiff in any case where negligent misconduct has been alleged against government agency. .. All the provinces across Canada extol their attributes and attractions in the fierce competition for tourist business. The skiing facilities at whistler are undoubtedly just such magnificent attraction. It would be hard to imagine more open and welcoming invitation to use those facilities than that extended by the provincial highway leading to them. In light of that invitation to use both the facilities and the highway leading to them, it would appear that apart from some specific exemption, arising from statutory provision or established common law principle, duty of care was owed by the province to those that use its highways. That duty of care would extend ordinarily to reasonable maintenance of those roads. The appellant as user of the highway was certainly in sufficient proximity to the respondent to come within the purview of that duty of care. In this case it can be said that it would be eminently reasonable for the appellant as user of the highway to expect that it would be reasonably maintained. For the Department of Highways it would be readily foreseeable risk that harm might befall users of highway if it were not reasonably maintained. That maintenance could, on the basis of the evidence put forward by the appellant, be found to extend to the prevention of injury from falling rock. Even with the duty of care established, it is necessary to explore two aspects in order to determine whether liability may be imposed upon the respondent. First, the applicable legislation must be reviewed to see if it imposes any obligation upon the respondent to maintain its highways or alternatively if it provides an exemption from liability for failure to so maintain them. Secondly, it must be determined whether the province is exempted from liability on the grounds that the system of inspections, including their quantity and quality, constituted 'policy' decision of government agency and was thus exempt from liability. .. Once policy to inspect is established then it must be open to litigant to attack the system as not having been adopted in bona fide exercise of discretion and to demonstrate that in all the circumstances, including budgetary restraints it is appropriate for court to make finding on the issue. The functions of government and government agencies have multiplied enormously in this century. Often government agencies were and continue to be the best suited entities and indeed the only organizations which could protect the public in the diverse and difficult situations arising in so many fields ..... The increasing complexities of life involve agencies of government in almost every aspect of daily living. Over the passage of time the increased government activities gave rise to incidents that would have led to tortious liability if they had occurred between private citizens. The early governmental immunity from tortious liability became intolerable. This led to the enactment of legislation which in general imposed liability on the Crown for its acts as though it were person. However, the Crown is not person and must be free to govern and make true policy decisions without becoming subject to tort liability as result of those decisions. On the other hand, complete Crown immunity should not be restored by having every government decision designated as one of policy. Thus, the dilemma giving rise to the continuing judicial struggle to differentiate between policy and operation. Particularly difficult decisions will arise in situations where governmental inspections may be expected. The dividing line between 'policy' and 'operation' is difficult to fix, yet it is essential that it be done. The need for drawning the line was expressed with great clarity by Becker J. of the United States District Court in Blessing v. United States, 447 F.S. 1160. The case required him to deal with claim under the Federal Tort Claims Act, 28 U.S.C. para. 2689, which provides: The provisions of this chapter and section 1346(b) of this title shall not apply to- (a) Any claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of statute or regulation, whether or nto such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform discretionary function or duty on the part of federal agency or an employee of the Government, whether of not the discretion involved by abused. He wrote, at p.1170: Read as whole and with an eye to discerning policy behind this provision, it seems to us only to articulate policy of preventing tort actions from becoming vehicle for judicial interference with decisionmaking that is properly exercised by other branches of the government and of protecting 'the Government from liability that would seriously handicap efficient government operations,' United States v. Muniz, 374 U.S. 150,163, 83 S.Ct. 1850, 1858, 10 L.Ed.2d 805 (1963). Statutes, regulations, and discretionary functions, the subject matter of para. 2680(a), are, as rule, manifestations of policy judgments made by the political branches. In our tripartite governmental structure, the courts generally have no substantive part to play in such decisions. Rather, the judiciary confines itself‑or, under laws such as the FTCA's discretionary function exception, is confined‑to adjudication of facts based on discernible objective standards of law. In the context of tort actions, with which we are here concerned, these objective standards are notably lacking when the question is not negligence but social wisdon, not due care but political practicability, not, reasonableness but economic expediency. Tort law simply furnishes an inadequate crucible for testing the merits of social, political or economic decisions. The need for distinguishing between governmental policy decision and its operational implementation is thus clear. True policy decisions should be exempt from tortious claims so that governments are not restricted in making decisions based upon social, political or economic factors. However, the implementation of those decisions may well be subject to claims in tort. What guidelines are there to assist courts in differentiating between policy and operation? Mason, J., speaking for himself and one other member of the Australian High Court in Sutherland Shire Council v. Heyman (1985), 1988 ABCA 234 (CanLII), 60 A.L.R. set out what find to be most helpful guidelines. He wrote: Anns decided that duty of care cannot arise in relation to acts and omissions which reflect the policy‑making and discretionary elements involved in the exercise of statutory discretions. It has been said that it is for the authority to strike that balance between the claims of efficiency and thrift to which du Parcq LJ referred in Kent v. East Suffolk Rivers Catchment Board [1940] KP 319 at 338 and that it is not for the court to substitute its decision for the authority's decision on those matters when they were committed by the legislature to the authority for decision (Dorset Yacht Co. v. Home Office, [1970] AC 1004 at 1031, 1067‑8; Anns, at p. 754; Barratt v. District of North Vancouver (1980) 1980 CanLII 219 (SCC), 114 D.L.R. (3d) 577). Although these injunctions have compelling force in their application to policy‑making decisions, their cogency is less obvious when applied to other discretionary matters. The standard of negligence applied by the courts in determining whether duty of care has been breached cannot be applied to policy decision, but it can be applied to operational decisions. Accordingly, it is possible that duty of care may exist in relation to discretionary considerations which stand outside the policy category in the division between policy factors on the one hand and operational factors on the other. This classification has evolved in the judicial interpretation of the 'discretionary function' exception in the United States Federal Tort Claims Act‑see Dalehite v. United States (1963) 346 US 15;...United States v. Varig Airlines, supra. The object of the Federal Tort Claims Act in displacing government immunity and subjecting the United States Government to liability in tort in the same manner and to the same extent as private individual under like circusmtances, subject to the 'discretionary function' exception, is similar to that of s. 64 of the Judiciary Act, 1903(Cth). The distinction between policy and operational factors is not easy to formulate, but the dividing line between them will be observed if we recognize that public authority is under no duty of care in relation to decisions which involve or are dictated by financial, economic, social or political factors or constraints. Thus budgetary allocations and the constraints which they entail in terms of allocation of resources cannot be made the subject of duty of care. But it may be otherwise when the courts are called upon to apply standard of care to action or inaction that is merely the product of administrative direction, expert or professional opinion, technical standards or general standards of reasonableness. The duty of care should apply to public authority unless there is valid basis for its exclusion. true policy decision undertaken by government agency constitutes such valid basis for exclusion. What constitutes policy decision may vary infinitely and may be made at different levels although usually at high level. The decisions in Anns v. Merton London Borough Council and Kamloops v. Nielsen indicate that government agency in reaching decision pertaining to inspection must act in reasonable manner which constitutes bona fide exercise of discretion. To do so they must specifically consider whether to inspect and if so, the system of inspection must be reasonable one in all the circumstances. For example, at high level there may be policy decision made concerning the inspection of lighthouses. If the policy decision is made that there is such pressing need to maintain air safety by the construction of additional airport facilities with the result that no funds can be made available for lighthouse inspection, then this would constitute bona fide exercise of discretion that would be unassailable. Should then lighthouse beacon be extinguished as result of the lack of inspection and shipwreck ensue, no liability can be placed upon the government agency. The result would be the same if policy decision were made to increase the funds for job retraining and reduce the funds for lighthouse inspection so that beacon could only be inspected every second year and as result the light was extinguished. Once again this would constitute the bona fide exercise of discretion. Thus, decision either not to inspect at all or to reduce the number of inspections may be an unassailable policy decision. This is so provided it constitutes reasonable exercise of bona fide discretion based, for example, upon the availability of funds. On the other hand, if decision is made to inspect lighthouse facilities the system of inspections must be reasonable and they must be made properly; see Indian Towing Co., 350 U.S. 61 (1955). Thus, once the policy decision to inspect has been made, the court may review the scheme of inspection to ensure it is reasonable and has been reasonably carried out in light of all the circumstances, including the availability of funds, to determine whether the government agency has met the requisite standard of care. At lower level, government aircraft inspectors checking on the quality of manufactured aircraft parts at factory may make policy decision to make spot check of manufactured items throughout the day as opposed to checking every item manufactured in the course of one hour of the day. Such choice as to how the inspection was to be undertaken could well be necessitated by the lack of both trained personnel and funds to provide such inspection personnel. In those circumstances the policy decision that spot‑check inspection would be made could not be attached.... Thus, true policy decision may be made at lower level provided that the government agency establishes that it was reasonable decision in light of the surrounding circumstances. The consideration of the duty of care that may be owed must be kept separate and distinct from the consideration of the standard of care that should be maintained by the government agency involved. Let us assume case where duty of care is clearly owed by governmental agency to an individual that is not exempted either by statutory provision or because it was true policy decision. In those circumstances the duty of care owed by the government agency would be the same as that owed by one person to another. Nevertheless, the standard of care imposed upon the Crown may not be the same as that owed by an individual. An individual is expected to maintain his or her sidewalk or driveway reasonably, while government agency such as the respondent may be responsible for the maintenance of hundreds of miles of highway. The frequency and the nature of inspection required of the individual may well be. different from that required of the Crown. In each case the frequency and method must be reasonable in light of all the surrounding circumstances. The governmental agency should be entitled to demonstrate that balanced against the nature and quantity of the risk involved, its system of inspection was reasonable in light of all the circumstances including budgetary limits, the personnel and equipment available to it and that it had met the standard duty of care imposed upon it. It may be convenient at this stage to summarize what consider to be the principles applicable and the manner of proceeding in cases of this kind. As general rule, the traditional tort law duty of care will apply to government agency in the same way that it will apply to an individual. In determining whether duty of care exists, the first question to be resolved is whether the parties are in relationship of sufficient proximity to warrant the imposition of such duty. In the case of government agency, exemption from this imposition of duty may occur as result of an explicit statutory exemption. Alternatively, the exemption may arise as result of the nature of the decision made by the government agency. That is, government agency will be exempt from the imposition of duty of care in situations which arise from its pure policy decisions. In determining what constitutes such policy decision, it should be borne in mind that such decisions are generally made by persons of high level of authority in the agency, but may also properly be made by persons of lower level of authority. The characterization of such decision rests on the nature of the decision and not on the identity of the actors. As general rule, decisions concerning budgetary allotments for departments or government agencies will be classified as policy decisions. Further, it must be recalled that policy decision is open to challenge on the basis that it is not made in the bona fide exercise of discretion. If after due consideration it is found that duty of care is owed by the government agency and no exemption by way of statute or policy decision‑making is found to exist, traditional torts analysis ensues and the issue of standard of care required of the government agency must next be considered. The manner and quality of an inspection system is clearly part of the operational aspect of governmental activity and falls to be assessed in the consideration of the standard of care issue. At this stage, the requisite standard of care to be applied to the particular operation must be assessed in light of all the surrounding circumstances including, for example, budgetary restraints and the availability of qualified personnel and equipment. Turning to the case at bar it is now appropriate to apply the principles set forth by Mason J. in Sutherland Shire Council v. Heyman, supra, to determine whether the decision or decisions of the government agency were policy decisions exempting the province from liability. Here, what was challenged was the manner in which the inspections were carried out, their frequency or infrequency and how and when trees above the rock cut should have been inspected, and the manner in which the cutting and scaling operations should have been carried out. In short, the public authority had settled on plan which called upon it to inspect all slopes visually and then conduct further inspections of those slopes where the taking of additional safety measures was warranted. Those matters are all part and parcel of what Mason J. described as 'the product of administrative direction, expert or professional opinion, technical standards or general standards of care'. They were not decisions that could be designated as policy decisions. Rather they were manifestations of the implementation of the policy decision to inspect and were operational in nature. As such, they were subject to review by the court to determine whether the respondent had been negligent or had satisfied the appropriate standard of care. At trial the conclusion was reached that the number and frequency of inspections, of scaling and other remedial measures, were matters of policy; as result, no findings of fact were made on the issues bearing on the standard of care. Since the matter was one of operation the respondent was not immune from suit and the negligence issue had to be canvassed in its entirety. The appellant was therefore entitled to finding of fact on these questions and new trial should be directed to accomplish this." The appeal was allowed and the case was remitted back to the trial level for new trial to make findings of fact to determine in all the circumstances if the respondent Province had met the standard of care that should reasonably be imposed upon it relating to the frequency and manner of inspections and the cuttings and sealing operations carried out on the rock. The Just v. British Columbia (supra) case sets out the criteria to be used in determining if such duty of care arises under the existing facts and law. If such duty of care arises, then the standard of care of that duty must be examined. If the standard of care has not been met then the duty of care has been breached. Duty of Care: Statutory: The Public Highways Act, R.S.N.S. 1967, c. 248 (R.S.N.S. 1989 c. 371): "Section The Minister has the supervision, management and control of the highways and of all matters relating thereto R.S.,c.371,s.4 Section (1) The Minister may appoint in each municipality one or more superintendents of highways who shall, under the direction and control of the division engineer, supervise the work and expenditures made upon the highways of the municipality or portion of the municipality for which he is appointed." Proceedings against the Crown Act, R.S.N.S. 1967, c.239 (R.S.N.S. 1989, c.360): "Right to enforce claim against Crown Section Subject to this Act, person who has claim against the Crown may enforce it as of right by proceedings against the Crown in accordance with this Act in all cases in which (c) the claim is based upon liability of the Crown in tort to which it is subject by this Act.R.S.,c.239,s.3." "Tort liability of Crown Section (1) Subject to this Act, the Crown is subject to all liabilities in tort to which, if it were person of full age and capacity, it would be subject (a) in respect of tort coniniitted by any of its officers or agents; (b) in respect of any breach of the duties that person owes to his servants or agents by reason of being their eniployer; (c) in respect of any breach of the duties attaching to ownership, occupation, possession or control of property; (d) under any statute, or under any regulation or by‑law made or pased under the authority of any statute." Finding: I find there is a prima facie duty of care owed by the Department of Transportation to users of the highways against reasonably foreseeable hazards, including the falling of trees onto the highway. find the parties are in relationship of sufficient proximity to warrant such duty. Is there an Exemption?: Having found there was prima facie duty of care must next consider if the defendant enjoys or has an exemption from that duty of care. (a) Statutory Exemption: find there was no statutory authority exempting the defendant from this duty. (b) Was it "Policy" decision?: Past Practice: Robert Colburne, the divisional engineer, considered such hazardous trees to be an "obvious" problem in the area. Highway crews under his direction had been removing dead trees which might be hazard for some years. He used the term "very often". They had been doing this within their own capabilities without additional funding. At least from 1978 on there had been problem necessitating removal of trees. At one time Colburne requested advice from the provincial Department of Lands and Forests. In 1983 Colburne had tree survey done to determine the number of hazardous trees in West Hants. Allen was appointed head of the tree inspection group. He was to identify the trees he considered were priority for removal. Once identified by Allen, Colburne would look at them and make decision on them. Perhaps Colburne would also consult Boyd, the Super. They did have their own resources to remove some trees, presumably those which were an imminent hazard. Allen identified 234 trees for removal. Most of these were also inspected by Colburne who presumably decided they could await additional funding. At least he did not use his own available forces to remove them all. Presumably those which Allen, Colburne and/or Boyd considered priority were removed immediately. The tree marked No. 150 was identified by Allen and examined by Colburne and probably also by Boyd. Although dead it was not deemed to be such hazard that they would use their own forces to immediately cut it down. All 234 trees were identified within 2‑3 weeks by Allen. No. 150 is in the same area as the tree that fell. conclude that the tree that fell was examined by Allen during the first week or so of the Summer. Colburne said that had he known then what he knew at trial he would have acted differently. interpret that answer (in cross‑examination) to mean that had. he known the tree that fell was in the condition it in fact was in, he would have immediately cut it down. Budget: There was $600,000. budget within and from which the Divisional Engineer and/or Superintendent could interchange their own priorities. Boyd said that sometimes money was taken out of the budget and spent and request for extra funds would be made later on. Cost: There is presently removal programme by tender at $250.00 per tree. Presumably in 1983 it would have been considerably less. The cost of examining the tree would be negligible. Allen was on staff. The only extra cost would be to train Allen and have expert backup upon which Allen could call, if required. Closure: Boyd said he would close the highway if there was tree which was an immediate hazard until the tree was removed. The project to remove all the 234 trees was one which Colburne considered required departmental approval for funding. That is, it was beyond his capacity as the divisional engineer. However, find it was within the scope and capability of the divisional engineer to remove with his own forces those trees which constituted an immediate hazard. It was also within his scope and capability to get some reasonable training and backup expertise for Allen. Had this tree been properly identified it could have been removed immediately and probably would have been moved immediately. Removal of the tree by the Department of Transportation would be at negligible cost. Inspection Team: consider must also look at the inspection team. What would such team cost or what would it cost to instruct Allen? There was government expertise at Kentville one half hour away. There was government expertise at Truro and Debert less than two hours away. There was government expertise in Fredericton. In addition there was private expertise in the area. The cost to train Allen would be negligible, certainly lot less than having Professor Jorgensen attend to inspect the stump or attend at trial. find there was no policy decision exempting this defendant from this duty. In fact the opposite is true. There was the will, the plan and the money to remove trees which were an immediate hazard. Standard of Care: Having found there was duty upon the defendant must next examine the standard of care one would reasonably expect. I find the reasonable standard of care required would be that which would determine from an examination of the Elm trees those which posed an immediate hazard. This find, would require an examination for obvious signs of death such as no living leaves or branches, those with outside fungi and those with visible mechanical wounds in the trunk. As in Just v. British Columbia (supra) those were not policy decisions but were "manifestations of the implementation of the policy decision to inspect and were operational in nature"(p.709). find that with minimal instruction Allen could have isolated and identified trees which were an immediate hazard. find that minimal training would have enabled Allen to either have an expert look at wounded trees or drill bore sample to be sent to either Kentville, Truro or Debert to be examined. At the minimum he would be able to consult an expert on trees with wounds and/or fungi. Summary: find the operational implementation of programme of removal of hazardous trees had been in place for some years prior to 1983. find in the Summer of 1983 the manner of implementing or carrying out the programme was beefed up. Instead of using their regular crews new man was brought in to head up this team. Allen was hired in the Summer of 1983 and in the Summer of 1983 was appointed to survey the area for hazardous trees. His background was working with I.G.A. He had absolutely no training or expertise on Elm trees or other tress or tree diseases or DED. He was given no written material to study or read, he was given no instruction and was given no backup of available expertise. He was to report to Colburne who likewise had absolutely no training, no instructional material and no expertise relating to trees or tree diseases. However, within half hour drive there was local expertise, both governmental and private. Within two hours was more governmental expertise and all of this was available by picking up the phone. There was equipment and personnel on staff to remove Elm trees which were an immediate hazard. If tree was identified as an immediate hazard Boyd would have found the money to remove it. Training for Allen: From my observations of Allen find he could have been instructed on what to look for in very short period. In about hours Professor Jorgensen gave out sufficient information to permit one to inspect Elms for dead branches, crowns, fungi and mechanical wounds. Upon detection of fungi or such wounds call would have identified the fungus and the type of wound. drill sample would have identified this disease and the extent of the damage to the tree. In two or three weeks Allen had inspected all the roads in West Hants for hazardous Elm trees and in the course of doing so, find, he examined the tree that fell. Had Allen been reasonably well informed or instructed he would have, find, identified the wound on the tree that fell and sought advice on it. Had he sought such advice and sent core sample am satisfied and find that the true condition of the tree would have been known. Had the true condition of the tree been known, find, Colburne would have ordered it immediately removed. It is not unreasonable to assume that would have been in late July or August 1983. find the inspections would require an inspector with reasonable level of expertise, within the normal capacity of the Department of Transportation. Instructional and training expertise was available here in Government departments nearby. The cost would be negligible, at least well within the capacity of Colburne and/or Boyd. Professor Jorgensen said it would take about an hour to inspect tree. Working 40 hour week Allen would come to the tree in issue by week four, probably in late July or early August. I find the defendant has not met a reasonable standard of care in carrying out the inspection duties it had assumed. find someone with at least minimal relevant training or expertise should have been employed as the inspector. Alternatively Allen should have been given some relevant training and/or instruction. As well there should have been someone with additional expertise upon whom Allen or whoever was the inspector, could call. Finding: I find the defendant was negligent in the implementation of its system of inspection of trees which posed a hazard to users of the highway. find the manner of inspection, including the use of totally untrained inspector with absolutely no trained backup was not reasonable in the circumstances. find the claim against the defendant relating to the general duty of care has not been made out. disallow the claim on this issue. find, however, that the claim of the plaintiff succeeds in relation to the standard of care under the programme for removal of trees that were an immediate hazard to the public. I find the defendant has not met a reasonable standard of care in its duty of care to the plaintiff. Third Party Claim: The third party claim is based on contribution and indemnity in the event the defendant was found to be negligent in its ordinary duty of care to the plaintiff. have found that the defendant was negligent but that the negligence was in the manner in which the inspection was carried out, in particular the fact that the inspector was totally untrained. This was matter totally encompassed by the defendant with no input from the third parties. In fact the third parties did not even know the programme was going on until after the loss. I dismiss the third party claim of the defendant against the third parties. The third parties shall have their costs to be taxed. find there was no prejudice flowing from the fact that the plaintiff's action against those third parties was dropped without the consent of the defendant. The third parties shall have their costs against the plaintiff up to the time the plaintiff discontinued against them. From then on their costs shall be against the defendant. Finding: The plaintiff shall have judgment against the defendant for damages, to be assessed. The plaintiff shall have his costs of this determination of liability. J. Halifax, Nova Scotia February 20, 1991 1985 S.K. No. 1928 1986 S.K. No. 2158 IN THE SUPREME COURT OF NOVA SCOTIA TRIAL DIVISION BETWEEN: PATRICK OWEN SWINAMER, and ATTORNEY GENERAL OF NOVA SCOTIA, representing Her Majesty the Queen in the right of the Province of Nova Scotia, and REGINALD REDDEN, DOROTHY REDDEN, EARL LOCKHART, and VIOLET LOCKHART, Third Parties DECISION OF GRANT, J.

A large diseased elm tree fell on a truck and injured the plaintiff driver. For some years prior to the accident, the defendant had operated a hazardous tree removal program. An inspector had examined the tree that fell. The inspector had no expertise relating to trees or their diseases, nor did his immediate superior. For the plaintiff, that there is a prima fade duty of care owed by the Department of Transportation to users of highway against reasonably foreseeable hazards, including the falling of trees onto the highway. Further, the defendant had a duty to use a reasonable standard of care in the operation of the hazardous tree removal program. The defendant was negligent in failing to train the inspector properly. The Court referred at length to the Supreme Court of Canada decision in Just v. British Columbia. The defendant's claim against the third parties (owners/occupiers of property on which tree stood) was dismissed.

b_1991canlii4497.txt

QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2016 SKQB 374 Date: 2016 11 17 Docket: CRM 57 of 2016 Judicial Centre: Saskatoon BETWEEN: OREST STETS and HER MAJESTY THE QUEEN Counsel: Peter A. Abrametz for the appellant Cory M. Bliss for the respondent JUDGMENT SCHWANN J. NOVEMBER 17, 2016 INTRODUCTION [1] This is summary conviction appeal by the defence following trial in the Provincial Court. Mr. Stets was charged with five Criminal Code, RSC 1985, C-46, offences arising from incidents occurring on or about August 22, 2015 in Humboldt, Saskatchewan. The specific counts were as follows: (1) Count Obstructing peace officer contrary to s. 129(a) of the Criminal Code; (2) Count Dangerous driving contrary to s. 249(1)(a) of the Criminal Code; (3) Count Impaired driving contrary to s. 253(1)(a) of the Criminal Code; (4) Count Refusal to provide breath sample contrary to s. 254(5) of the Criminal Code; and (5) Count Assault on Sasha Stets contrary to s. 266 of the Criminal Code. [2] In decision rendered orally on March 21, 2016, the learned trial judge found Mr. Stets guilty of dangerous driving (Count 2) and assault (Count 5). Mr. Stets was acquitted of all other charges. [3] Mr. Stets received global sentence of $1,000 fine plus 18-months’ probation. The conditions of the probation order required Mr. Stets to attend personal counselling, including domestic violence programming, as directed to do so by his probation officer, and to have no contact with Sasha Stets except through third party for purposes of arranging access to his children. [4] On the dangerous driving conviction, three-month driving prohibition was imposed. [5] Mr. Stets appeals both conviction and sentence. [6] At the time of these offences, Mr. Stets and Sasha Stets resided together in spousal relationship in Humboldt, Saskatchewan. [7] Sasha Stets testified that on the day in question she returned home from work to find her husband drunk. In her words, “he was not very friendly” towards her and not very positive. She described her husband as being aggressive, smelling of alcohol and very agitated. [8] The complainant was not an overly cooperative witness. Indeed, she refused to repeat any conversation she had with the accused on the day of the offence based on spousal privilege set out in s. 4(3) of the Canada Evidence Act, RSC 1985, C-5. Nonetheless, Sasha Stets testified to what transpired on the day in question. She testified that Mr. Stets put his hand on her arm and then pulled her arm. She believes it was done on purpose. [9] Ms. Stets testified that she was scared by the incident and did not wish to provoke the appellant. She broke free from his grasp and left the house with their youngest child. She told him they were going to McDonald’s. As she travelled down residential street, Ms. Stets saw her husband in the rear view mirror of her vehicle. He was following her in another vehicle. As she put it, he started to “beam” her and push her towards the curb side of the road. She managed to park between two parked vehicles but was unable to exit because he had stopped beside her. [10] Ms. Stets initially testified that because there was one metre separating the two vehicles, she stopped her car and parked between two parked cars. When pressed for more details, Ms. Stets responded: He was so close that got very close, very tight to my car and didn’t let me proceed forward, so the only way out of the situation was to to veer to the right to avoid collision. (Transcript, T38, lines 10-12) [11] When asked which lane he was in when he forced her to the side of the road, she replied: In the in my lane. The same lane. In the same lane. He came and beamed my car and started forcing me off to the side. (Transcript T39, lines 16-17) [12] The Crown had Ms. Stets explain to the trial judge how the two cars were positioned by having her demonstrate with her hands. The following exchange then took place on T39, lines 36-41 and T40, lines 1-4 and 26-33 MR. BLISS: Okay. And so just for the record there, Your Honour saw what she was doing. It appeared as if she said her car then his car pulled up beside THE WITNESS: Yeah MR. BLISS: and, kind of, angled in front, pushing her to the side into to the parking spot. THE WITNESS: Yeah MR. BLISS: After after he was beside her, was she able to keep driving? A: No. No, couldn’t. had to park because he was driving parallel to me. And there was to to—too little room in-between his car and the parked cars, so had to park because otherwise there would have been an accident. And, secondly, saw that he wasn’t in adequate condition and –that’s why wanted to park as well. And was stressed out. [13] The complainant testified that each vehicle was travelling at about 20 km/hr and the two vehicles were less than one metre apart. [14] Ms. Stets testified that the parties were travelling in residential neighbourhood on two way street. There were no vehicles at the time of this incident and although children normally play in the neighbourhood, she testified none were present. STANDARD OF REVIEW [15] Pursuant to ss. 812(1)(d) of the Criminal Code, summary conviction appeals in Saskatchewan are heard and determined by the Court of Queen’s Bench. The powers of an appellate court as set out in s. 686 of the Criminal Code are made applicable to summary conviction appeals by virtue of ss. 822(1) of the Criminal Code. [16] An appeal brought by defendant may be allowed where the verdict is unreasonable and cannot be supported by the evidence, is based on wrong decision on question of law or on any ground if it is shown there was miscarriage of justice. The defendant’s appeal ought not be dismissed where, although not properly convicted on particular count, the accused was properly convicted on another count, or where legal error was made but no substantial wrong or miscarriage of justice occurred (ss. 686(1) and (2) of the Criminal Code). [17] With regard to the standard of review, this Court’s decision in Helm, 2011 SKQB 32 (CanLII), 368 Sask 115, provides helpful summary: 19 On the factual grounds, the standard of review is whether there is evidence upon which trier of fact, properly instructed, could reasonably reach the verdict. See R. v. Bigsky, 2006 SKCA 145 (CanLII), [2007] W.W.R. 99 at para. 74; R. v. Biniaris, 2000 SCC 15 (CanLII), [2000] S.C.R. 381; and R. v. Yebes, 1987 CanLII 17 (SCC), [1987] S.C.R. 168. The appellate court ought not substitute its own view of the evidence for that of the trial judge. However, the appellate court is entitled to review, re-examine and re-weigh the evidence, but only for the purpose of determining if the evidence was reasonably capable of supporting the learned trial judge's conclusion. See R. v. Burns, 1994 CanLII 127 (SCC), [1994] S.C.R. 656. 20 On question of law, the standard is correctness, and the appellate court should intervene if the decision is not correct in law unless, in the case of defence appeals, there has been no substantial wrong or miscarriage of justice that has occurred. See R. v. Shepherd, 2007 SKCA 29 (CanLII), [2007] W.W.R. 659; and R. v. Henry (B.), 2006 SKQB 469 (CanLII), 286 Sask. R. 154. [18] The following issues are raised by this appeal: (1) Did the trial judge err in failing to give effect to implied consent and in adopting zero tolerance approach? Did the learned trial judge err in failing to apply the de minimis non curat lex principle and acquit the accused of the assault charge? (2) Did the learned trial judge err in finding that the manner in which the appellant drove was inherently dangerous? Are the facts as found by the trial judge capable of supporting the actus reus of dangerous driving? (3) If the conviction for assault is upheld, was the sentence of 18 months’ probation, coupled with the counselling condition and non-contact prohibition, disproportionate to the gravity of the offence? With regard to the dangerous driving offence, should driving prohibition have been imposed as part of the sentence? (1) Did the trial judge err in failing to give effect to implied consent and in adopting zero tolerance approach? Did the learned trial judge err in failing to apply the de minimis non curat lex principle and acquit the accused of the assault charge? [19] The appellant submits the trial judge erred in three respects. First, the trial judge failed to recognize the existence of implied consent in spousal relationships to limited form of touching. Instead, he argues, the learned trial judge simply adopted zero tolerance approach with respect to contact between spouses without consideration to the fact the parties were married and not strangers to each other. He submits they should be free to interact vocally, emotionally and even physically, within the bounds of reason. criminal conviction, he argues, is unreasonable and does not respect human nature, human emotions and the intimate nature of spousal relationship. The third argument is that the learned trial judge erred in failing to accept the defence of de minimis non curat lex and thereby erred in criminally sanctioning touching of trifling nature. [20] Analysis of all three arguments begins with the important observation that legal counsel for Mr. Stets chose not to cross-examine the complainant and conceded that all elements of an assault offence under s. 266 of the Criminal Code had been made out by the Crown. His argument before the trial judge was limited to the application of the de minimis principle because, he argued, the grabbing or touching was minimal and therefore not worthy of criminal sanction. [21] In order to convict an accused of assault, the Crown must prove beyond reasonable doubt that the accused intentionally applied force directly or indirectly to the complainant, the complainant did not consent to the force applied, and the accused knew that the complainant did not consent. Force includes any physical contact with another person, whether violent or gentle. There can be force without physical violence. To be an assault, the accused must apply the force intentionally against the complainant. An accidental touching is not the application of force. Consent is matter of the subjective state of mind of the complainant at the time the force is applied. The question is whether the complainant consented to the application of force. (David Watt, Watt’s Manual of Criminal Jury Instructions, 2d ed (Toronto: Carswell, 2015) 790-791) [22] Having conceded that all elements of this offence had been made out meant the defence acknowledged and admitted that the appellant’s use of force was not mere touching, and that Ms. Stets did not consent to the application of force. Force must be more than minor touching but it does not require injury. Furthermore, since the absence of consent is one of the constituent elements of assault, one wonders how Mr. Stets can argue on appeal that the trial judge failed to take implied consent into account. Having conceded the absence of consent of any form actual, implied or otherwise the appellant cannot resile from that position on appeal. [23] It was open to the trial judge to accept or reject the evidence of Ms. Stets. Keeping in mind that Ms. Stets was not cross-examined at trial and her evidence went in unchallenged, the trial judge is entitled to considerable deference with respect to how she treated Ms. Stets’ testimony. [24] With regard to the appellant’s second argument, the suggestion that the learned trial judge failed to properly exercise discretion by blindly adopting zero tolerance approach to domestic assault without consideration to the circumstances or the seriousness of the assault is simply not borne out by the transcript. There is nothing in the transcript which suggests the trial judge took a zero tolerance approach in rendering her decision. This is simply the appellant’s interpretation of her decision. Furthermore, this line of argument does not appear to have been drawn to the attention of the trial judge at the time of trial. Finally, as mentioned, the accused conceded that all elements of the offence had been made out which necessarily includes the intentional application of force. [25] The appellant’s final argument is that the trial judge erred in not applying the de minimis non curat lex principle. [26] The trial judge correctly identified the law in Saskatchewan in relation to this principle. She began by noting that while the application of the de minimis non curat lex defence to criminal law remains in some state of uncertainty, this Court’s decision in Wiebe, 2001 SKQB 389 (CanLII), 211 Sask 30 [Wiebe], appears to have adopted it and therefore it continues to be good law in Saskatchewan. The trial judge referenced para of Wiebe in support of her conclusion: The case law establishes that in certain circumstances while the conduct complained of may satisfy the technical elements of assault, it may be so trivial or trifling that it should not attract sanctions. By another approach, the question is whether or not the conduct of the accused is sufficiently serious that it should properly be stigmatized as criminal, since the words trifling or trivial can convey pejorative message to the complainant which may not be warranted. An accused may be acquitted on de minimus [sic] grounds even though what happened is not considered to be “trifle” but is simply considered to be conduct that, while unacceptable and wrong, did not constitute criminal misconduct (citations omitted) [27] The trial judge concluded that even though she found the assault on Ms. Stets to be at the “low end”, on the facts before her she stated the assault fell outside of the de minimis range. Consequently, she held the defence was not open to the accused. take her comments to mean that she found as fact that the application of force by Mr. Stets on Sasha Stets to be more than trifling. [28] The appellant submits the trial judge erred in failing to interpret the facts as amounting to little more than “trifling” or incidental contact. He analogized it to mere grabbing of hand and pointed out there was no bruising to Ms. Stets. Moreover, he submits that the trial judge failed to appreciate that this “assault” was between spouses where minor incidental physical touching can be expected, and that minor incidental touching is nothing more than de minimis in nature not warranting criminal sanction. [29] This argument is little more than an appeal on the evidence. An appellant is entitled to challenge verdict on the basis that it is unreasonable and cannot be supported by the evidence, i.e. it is one that properly instructed judge and jury could not have reasonably reached. Although some re-examination and re-weighing of the evidence is allowed to determine if it was reasonably capable of supporting the trial judge’s conclusion, an appeal court judge cannot simply substitute its own view of the evidence from that of the trial judge. (R Power 2016 SKCA 29 (CanLII), para 57, 476 Sask 91) [30] The trial judge had the advantage of seeing and hearing Sasha Stets on the witness stand. It must be remembered that Ms. Stets was not cross-examined on her evidence and it went in unchallenged. The trial judge is therefore entitled to deference in her assessment of the evidence. [31] In Nagel-Joseph, 1999 CanLII 5351 (BC SC), trial judge’s failure to dismiss charges on the de minimis principle was advanced as ground of appeal. In considering the grounds for appellate intervention, McEwan J. observed as follows at para. 14: 14 …I am not entitled to re-weigh the evidence and to substitute my own opinion for that of the trial judge. am only justified in intervening in the trial judge's exercise of discretion if the trial judge misdirected himself or if his decision was so clearly wrong as to amount to an injustice (see: R. v. Carosella 1997 CanLII 402 (SCC), C.R. (5th) 139, S.C.C.). The application of the de minimis principle is, think, clearly an exercise of judicial discretion. [32] am satisfied the trial judge properly instructed herself on the law and that her findings of fact are supported by the evidence. The application of the de minimis principle is an exercise of judicial discretion and see nothing from the transcript which suggests that her discretion was improperly exercised on either the law or the evidence before her. [33] Quite apart from the reasons set out above, the observations in Carson (2004), 2004 CanLII 21365 (ON CA), 185 CCC (3d) 541 (Ont CA) from the Ontario Court of Appeal concerning the application of the de minimis principle to domestic violence situations are worth repeating. At para. 25 the court noted: 25 We would not give effect to this submission. Hinchey dealt with the acceptance of benefit by public servant. In that case, the Supreme Court of Canada explicitly did not decide on the applicability of the de minimus [sic] principle as defence to criminal culpability. Murdock concerned trafficking in controlled substance. Neither case involved the use of force or domestic violence. The extent of injuries resulting from the use of force, while an important factor, is not the sole determinative of the personal or societal interest in crime. The harm to society occasioned by domestic violence, even of minor nature, cannot be understated. [emphasis added] [34] I am satisfied the trial judge made no error on the de minimis issue. (2) Did the trial judge err in finding that the manner in which the appellant drove was inherently dangerous? Are the facts as found by the trial judge capable of supporting the actus reus of dangerous driving? [35] The appellant contends there was an insufficient evidentiary basis for the trial judge to have concluded that Mr. Stets’ driving was objectively dangerous. The complainant testified that both parties were driving slowly. According to Ms. Stets they were travelling at roughly 20 kilometres per hour or less. Although Mr. Stets was immediately beside her and cut her off, she stopped without incident. While Mr. Stets’ driving could be characterized as “impolite” and “influenced by some degree of passion”, the appellant submits it failed to rise to the level of marked departure from the norm. As the Crown bears the onus of proof, the appellant argues there must be sufficient evidentiary basis upon which the trial judge could have concluded that Mr. Stets’ driving was objectively dangerous. In his view, the evidentiary record falls short of meeting that mark. [36] The learned trial judge began her decision on the dangerous driving charge by instructing herself on the law by reference to Roy, 2012 SCC 26 (CanLII), [2012] SCR 60 [Roy]. As to the actus reas component, she cited the following passage from Roy: 28 ... The actus reus of the offence is driving in manner dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle was being operated and the amount of traffic that at the time was or might reasonably have been expected to be at that place (s. 249(1)(a) of the Criminal Code). The mens rea is that the degree of care exercised by the accused was marked departure from the standard of care that reasonable person would observe in the accused's circumstances (Beatty, at para. 43). The care exhibited by the accused is assessed against the standard of care expected of reasonably prudent driver in the circumstances. The offence will only be made out if the care exhibited by the accused constitutes marked departure from that norm. While the distinction between mere departure from the standard of care, which would justify civil liability, and marked departure justifying criminal punishment is matter of degree, the lack of care must be serious enough to merit punishment (para. 48). [37] In assessing whether the actus reas of this offence had been made out on the evidence before her, the trial judge made the following findings of fact: In the present case, Ms. Stets testified that she was driving down the road when she noticed that the accused was following her. The accused was driving slowly, approximately 20 kilometres per hour or less. He started overtaking her, pushing her toward the side of the road. She managed to park between two parked cars and avoid collision. find that the accused’s driving behaviour, following Mrs. Stets while he was angry, coming within one metre of her vehicle, and deliberately cutting her off so that she was forced to the side of the road to avoid an accident, meets the criteria of driving in manner that is dangerous to the public. The Crown has proven the actus reus of the offence beyond reasonable doubt. (Transcript, T126, lines 21-29) [38] At para 34 of Roy, the court explains that the trier of fact must not focus on the consequences of the driving but on the risk presented by the manner of driving: 34 In considering whether the actus reus has been established, the question is whether the driving, viewed objectively, was dangerous to the public in all of the circumstances. The focus of this inquiry must be on the risks created by the accused's manner of driving, not the consequences, such as an accident in which he or she was involved. As Charron J. put it, at para. 46 of Beatty, "The court must not leap to its conclusion about the manner of driving based on the consequence. There must be meaningful inquiry into the manner of driving" ... manner of driving can rightly be qualified as dangerous when it endangers the public. It is the risk of damage or injury created by the manner of driving that is relevant, not the consequences of subsequent accident. In conducting this inquiry into the manner of driving, it must be borne in mind that driving is an inherently dangerous activity, but one that is both legal and of social value (Beatty, at paras. 31 and 34). Accidents caused by these inherent risks materializing should generally not result in criminal convictions. [emphasis added] [39] The Crown had to prove that Mr. Stets operated his motor vehicle in manner that was dangerous to the public considering the totality of the circumstances. The law requires (1) that the driving, viewed objectively, was dangerous to the public having regard to all the circumstances; (2) that the driving must be marked departure from the standard of care that reasonably prudent driver would observe in the accused’s situation; and (3) that there was no lawful justification, excuse or explanation for driving in such manner. [40] The word “public” refers to any users of the road including other motorists, cyclists, pedestrians, or passengers. This necessarily included Ms. Stets and their young child who accompanied her in the vehicle. [41] Section 249 of the Criminal Code directs trial judge to consider all circumstances, including: (1) the nature of the location where the driving took place; (2) the weather and road conditions at the location where the driving took place; (3) the use of the location where the driving took place; and (4) the amount of traffic that was actually there or that would reasonably be expected to be there. [42] As noted in Roy, in deciding whether Mr. Stets’ driving, viewed objectively, was dangerous to the public having regard to all the circumstances, the trial judge was required to focus on the manner of his driving, not on the consequences. [43] The trial judge also had to decide whether the Crown satisfied her beyond reasonable doubt that Mr. Stets’ driving was marked departure from the standard of care that reasonably prudent driver would observe in the same circumstances. Dangerous driving requires more than simple carelessness. The driving must be marked departure from what is expected of reasonably prudent driver in similar circumstances. momentary lapse in attention to circumstances where the accused’s manner of driving up to that point has been proper in all other respects constitutes careless driving but does not, without more, constitute the crime of dangerous driving. momentary lapse in attention in those circumstances is “a departure” but not “a marked departure” from the conduct of reasonably prudent driver. [44] The trial judge found that Mr. Stets intentionally drove in a manner which he knew created a danger for others, and drove in a manner intended to scare Ms. Stets. She was entitled to conclude from the appellant’s intentional action that his conduct was a marked departure from the conduct expected of a reasonably prudent driver and not a momentary lapse. [45] The trial judge’s decision focussed primarily on the fact the accused overtook Ms. Stets’ vehicle and “pushed” her to the side of the road. In concluding this manner of driving was dangerous, the trial judge took into consideration these additional facts: Mr. Stets was angry, he came within one meter of the complainant’s vehicle, and he deliberately tried to cut her off. The evidence also shows that Ms. Stets was forced off the road to avoid collision. [46] Although the trial judge failed to comment upon other surrounding circumstances brought out in Ms. Stets testimony, the evidence shows that the incident occurred on residential two way street, and that, apart from the two parked vehicles, no other vehicles, pedestrians or children were present at the time of the incident. [47] Both Ms. Stets and her young daughter were in her vehicle and could potentially have been injured had the appellant struck her vehicle or forced it into one of the parked cars. In this respect Mr. Stets’ driving presented some degree of danger to the complainant and her daughter. Moreover, the location of where the incident occurred elevates the dangerous nature of the appellant’s actions. Mr. Stets drove in the other lane, parallel to Ms. Stets on two lane residential street. This was not an infrequently travelled country road. Since Mr. Stets drove parallel to the complainant, his driving could have presented danger for oncoming vehicles or for pedestrians. The fact he encountered neither is sheer luck, not acceptable driving. [48] This appeal is essentially an appeal on the facts. The appellant invites this Court to review and re-interpret the evidence and substitute its own view of the evidence from that of the trial judge. [49] The standard of review on an appeal on factual grounds is not whether the conclusion was correct, or even if an appellate court would have interpreted the evidence differently. The standard of review is whether there is evidence upon which trier of fact properly instructed could have reasonably reached the verdict she did. [50] Having reviewed and re-examined the evidence I am satisfied that although I may not have come to the same conclusion as the trial judge, the evidence was nonetheless reasonably capable of supporting the decision made by the trial judge. [51] The appeal from the dangerous driving conviction must also be dismissed. (3) If the conviction for assault is upheld, was the sentence of 18 months’ probation, coupled with the counselling and non-contact prohibition, disproportionate to the gravity of the offence? With regard to the dangerous driving offence, should driving prohibition have been imposed as part of the sentence? [52] The standard of review on appeals from sentence has become more deferential following the Supreme Court of Canada’s decision in Lacasse, 2015 SCC 64 (CanLII), [2015] SCR 1089. In L.V., 2016 SKCA 74 (CanLII), Ryan-Froslie J.A. summarized this new standard at paras. 72-74: 72 Lacasse emphasizes the long-standing notion that, within the limits of the law, sentencing judges have broad discretion to impose the sentences they consider appropriate. An appellate court may not intervene merely because it would have chosen different sentence than did the sentencing judge. 73 The standard of review for sentence appeals is deferential. In Lacasse, the Supreme Court indicated that: (a) an error in principle, failure to consider relevant sentencing factor or an erroneous consideration of an aggravating or mitigating factor will justify appellate intervention only when the trial judge's decision in that regard had an impact on the sentence (at para 44) (b) court of appeal may not intervene simply because it would have weighed sentencing factors differently than the trial judge (at para 49); (c) court of appeal may not intervene on the ground that it would have put the sentence in different range or category. The choice of sentencing range or of category within range does not itself constitute reviewable error (at para 51); and (d) sentence may be demonstrably unfit even if the judge has made no error in imposing it (at para 52). 74 In the end, therefore, Lacasse indicates that an appellate court may substitute its own sense of an appropriate sentence for the one imposed by trial level court in only two circumstances. The first is when the sentence imposed by the trial level court is demonstrably unfit. The second is when the trial level court made an error in principle, failed to consider relevant factor, or gave erroneous consideration to an aggravating or mitigating factor and that error had an impact on the sentence. [53] An appellate court may substitute its own sentence where the sentence imposed by the trial judge was demonstrably unfit, where the trial judge made an error in principle, failed to consider relevant factor or gave erroneous consideration to an aggravating or mitigating factor and that error had an impact on sentence. [54] The appellant did not explain how the sentence imposed by the learned trial judge was demonstrably unfit, nor has he pointed to any error in principle, failure to consider relevant factor or erroneous consideration of an aggravating factor. In short, the appellant asks this Court to impose different sentence from the one imposed by the trial judge. [55] Absent an error of the type described, an appellate court may not intervene simply because it would have weighed sentencing factors differently than the trial judge. [56] Since no error has been identified, or for that matter is apparent from the record, there is no basis to intervene with the sentence imposed. The appeal from sentence is therefore dismissed. J. L.M. SCHWANN

HELD: The appeal as to the convictions and the sentences imposed was dismissed. The court found with respect to each issue that the trial judge had not erred: 1) the defence had acknowledged the appellant had used force and that his spouse had not consented to it. Therefore the appellant could not argue on appeal that the trial judge failed to take implied consent into account. The trial judge was entitled to accept the spouse’s testimony as she was not cross-examined at trial. There was nothing in the transcript that showed the trial judge took a zero tolerance approach. The trial judge found that defence of de minimis was not open to the appellant based on her finding that the application of force by the appellant was more than trifling. On appeal, the court could not substitute its view of the evidence from that of the trial judge; 2) the trial judge found that the appellant intentionally drove in a manner that he knew created a danger for others and to frighten his spouse. She was entitled to conclude the appellant’s conduct was a marked departure from that expected of reasonably prudent driver. The evidence was reasonably capable of supporting her decision; and 3) the appellant had not identified how the trial judge had erred on any of the grounds an appeal court could consider. It was not open to it to intervene only because it would have weighed sentencing factors differently from the trial judge.

c_2016skqb374.txt

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Date: May 27, 2014 Citation: 2014 SKPC 114 File: 13/13 Location: Wynyard Between: Wendell Charbonneau and Cal Statchuk Wendell Charbonneau For the Plaintiff Morgan Jaster For the Defendant JUDGMENT J.A. PLEMEL, [1] The Plaintiff alleges that the Defendant applied substance in the back alley next to his property which caused damage to his lawn in the Town of Wadena. report by Back-Track Investigations and Special Services Ltd. (Back-Track), filed in these proceedings as Exhibit P-1, supports Mr. Charbonneau’s belief that damage which occurred to their back yard lawn was caused by run-off and/or leaching of substance from the back alley. Mr. Charbonneau claims damages in the amount of $9,903.98 together with pre-judgment interest as well as the cost of issuing and serving the summons. [2] The Plaintiff must prove his claim on balance of probabilities. Besides filing the report just mentioned he and his wife, Sandra Charbonneau, both testified. He also called licenced pesticide operator named David Panasiuk, town employee named Brian Hayes and Patrick Frith, the professional agrologist who prepared the report for Back-Track. Mr. Statchuk testified in his own defence. [3] Having read the report and having heard the evidence of Patrick Frith, am satisfied on balance of probabilities that substance, either through run-off or leaching from the back alley got into the Charbonneau’s lawn and killed it. Photographs, as well as the evidence given by Wendell and Sandra Charbonneau and David Panasiuk, further support this finding. However, I am not satisfied on a balance of probabilities that Mr. Statchuk had anything to do with putting the substance into the back alley or that it came from the Statchuk property. [4] There are valid reasons for Mr. and Mrs. Charbonneaus’ suspicions. Mr. Statchuk has access to farm chemicals through his employment with Crop Production Services and formerly with Viterra. Sandra Charbonneau saw him dump liquid in the back alley. Mr. Charbonneau spoke with him and he stated that he has used glyphosate and Ally and may have mixed one little strong. Both are chemicals used in weed control. The Statchuk yard is directly across the back alley from the Charbonneau’s. Plant life has been killed only in the Charbonneau yard, but not in the yards to their right or left. The back alley slopes from the Statchuk yard toward the Charbonneau yard. [5] While the Charbonneaus’ suspicions are certainly not frivolous, the evidence does not meet the test of proof on balance of probabilities. The Plaintiff’s own witness, Mr. Frith, is Professional Agrologist with Bachelor of Science Degree in Crop Science. He was qualified as an expert in this case to give opinion evidence in the area of plant chemicals including how they are to be used and their effects on lawns and gardens. This included the effects of run-off and leaching. His evidence is that it is unlikely that glyphosate or Ally killed the lawn but that soil sterilant was probably to blame. There is no evidence that Mr. Statchuk used soil sterilant in his yard or in the back alley. [6] Mr. Statchuk testified that he last used Ally in his yard to control broad leaf plants in 2010. He last used glyphosate around his yard in 2012. accept Mr. Frith’s evidence that Ally could not have caused the damage in question. Where the evidence of David Panasiuk and Mr. Frith conflict on this point, accept the evidence of Mr. Frith due to his level of expertise. Ally kills broad leaf plants but not grass. also accept Mr. Frith’s evidence that if glyphosate entered the Charbonneau’s yard either by leaching or run-off, residue of glyphosate should have been found in the soil samples taken and analyzed for that particular chemical. None was found. Furthermore, glyphosate is not soil sterilant but herbicide. Some plant life would be expected to have emerged in the time frame discussed in evidence. [7] The pattern of dead lawn has the characteristics of soil sterilant getting into the lawn from run-off or leaching. Mr. Statchuk has access to soil sterilants through his employment but he testified he did not use them in his yard or in the back alley. There is no growth on Mr. Statchuk’s side of the alley but this is consistent the Defendant’s testimony that he manually removed weeds and also used glyphosate. There was suggestion that perhaps shed he moved from the Viterra work site may have contained substance which leaked out, into the back alley and into the Charbonneau’s yard. However, the evidence does not support that. In preceding years, before it was moved to the Statchuk yard, it was used to store tools, machinery and applicators. Mr. Statchuk had the floor in it replaced before moving it to his yard. [8] Mr. Statchuk states that on occasion he washed windshields of his vehicles and emptied the remaining liquid in the alley and also that he once dumped water in the alley from gallon pail which he used in mixing concrete. Perhaps this is what the Charbonneaus observed. He denies dumping any chemicals in the back alley. doubt that the placement of the shed, or the pouring of these liquids by Mr. Statchuk were the source of the problem. The grass was killed along the Charbonneau’s whole property line where it borders the alley ending precisely where the Charbonneau’s yard meets their neighbour’s. Without knowing what they were looking for, the laboratory personnel where Mr. Charbonneau sent the soil samples, did not know what to test for, though they did test for glyphosate as requested. Mr. Charbonneau testified that the cost to him to test for numerous substances until they found the presence of the one killing the grass would have been prohibitive. Therefore, there is no evidence of what substance got into the lawn and killed it. No samples were taken from the alley, to test for any chemical substance there. [9] Brian Hayes was the town employee called by the Plaintiff. From his testimony it appears highly unlikely that the offending substance came from gravel used in graveling the back alley. There were no similar issues anywhere else in town where gravel from the same source was used. Defence led evidence of the fact that house was demolished in the area and debris may have been removed through the back alley, suggesting that perhaps this was the cause. [10] The onus is not on the Defendant to establish an alternative source of the offending substance. The onus is on the Plaintiff to prove his claim on a balance of probabilities and this involves proving that Mr. Statchuk was responsible for killing their lawn. For the reasons stated, I find he has not done so. [11] I therefore dismiss the Plaintiff’s claim. am making no order as to costs. J.A. Plemel,

The plaintiff’s claim was dismissed. The plaintiff had not proven his claim on a balance of probabilities that the defendant was responsible for the damage to his lawn.

c_2014skpc114.txt

HJC Date: 20020404 Docket: CA172291 NOVA SCOTIA COURT OF APPEAL [Cite as: Madore v. Ibrahim, 2002 NSCA 46] Roscoe, Cromwell and Hamilton, JJ.A. BETWEEN: JOSEPH MICHAEL MADORE DR. A.H.S. IBRAHIM Respondent REASONS FOR JUDGMENT Counsel: Hugh R. McLeod for the appellant Colin J. Clarke for the respondent Dr. Ibrahim James L. Chipman for Dr. M.D.Miller Appeal Heard: February 15, 2002 Judgment Delivered: April 2002 THE COURT: Leave to appeal is granted and the appeal is allowed in part per reasons for judgment of Hamilton, J.A,; Roscoe and Cromwell, JJ.A. concurring. Hamilton J.A.: [1] The appellant applies for leave to appeal and, if granted, appeals the interlocutory order of Justice Simon J. MacDonald, dated September 5, 2001, refusing to appoint Dr. M. D. Miller a court expert and refusing to order Dr. Miller to answer certain interrogatories, the majority of which call for his opinion concerning the medical services provided by the respondent, another physician, to the appellant. [2] Dr. Miller is not party to this action. He is urologist who treated the appellant when the appellant went into the emergency department of the Cape Breton Regional Healthcare Complex complaining of pain, three days after the respondent performed circumcision on him. The appellant has commenced an action against the respondent alleging negligence in the performance of the circumcision. There is no action against Dr. Miller nor any allegation of wrongdoing by him, although note that interrogatory No. 23 dated February 2, 2001 inquires of Dr. Miller: In performing completion of the circumcision for Michael Madore, was there any negligence that you committed or anything that you should have done? [3] The respondent did not attend the hearing and indicated by letter that he supports Dr. Miller’s position. [4] Dr Miller has provided the appellant with complete copy of his file and has answered several interrogatories concerning the medical services he provided to the appellant. Dr. Miller declined to be an expert witness in this action when asked by the appellant and provided the names of three other urologists to the appellant. Appellant’s counsel indicates the other three urologists whose names were provided by Dr. Miller also declined to act as an expert witness. There is no evidence of any other attempts by the appellant to engage an expert witness. [5] The issues listed by the appellant in his factum are: 1. Is Dr. Miller in breach of his own Code of Ethics? 2. Should Dr. Miller be appointed court expert and be required to answer all questions put to him in both sets of interrogatories? 3. Should Dr. Miller be required to re-answer the questions submitted in this Factum with the directive that he answer them fully and in language that is capable of being understood by layman? 4. Should Dr. Miller be required, specifically, to give complete and full explanation as to what went wrong in the first operation and why it was necessary for him to do second corrective surgery? [6] The order appealed from is an interlocutory order and the standard of review is as stated by Chipman, J.A. in Global Petroleum Corporation v. CBI Industries Inc. (1998), 1998 CanLII 2609 (NS CA), 172 N.S.R. (2d) 326 (N.S.C.A.). This Court will not interfere unless wrong principles were applied or manifest injustice has resulted. In so doing, we consider the consequences of the order under review, whether the Chambers judge gave insufficient weight to relevant matters, whether all relevant circumstances were brought to the attention of the Chambers judge, and whether the judge misapprehended the facts. This Court should narrowly confine the scope of the appellate intervention on appeals respecting interlocutory decisions, particularly those involving procedural rulings. [7] With respect to the first issue raised by the appellant, this issue is not properly before the court. This issue was not raised before the chambers judge or dealt with in his decision and was not included in the notice of appeal. [8] With respect to the second issue raised by the appellant, the appellant has not satisfied me that the chambers judge erred in refusing to appoint Dr. Miller as a court expert for the purpose of answering all questions put to him by the appellant’s interrogatories. It is difficult to imagine the circumstances under which court would appoint an expert who was not willing to so act. [9] With respect to the third issue raised by the appellant, am not satisfied the chambers judge erred in not ordering Dr. Miller to re-answer the interrogatories he did answer “in language that is capable of being understood by layman”, as appellant’s counsel phrases it. While it would have been better if Dr. Miller used plainer language in answering some of the interrogatories, he has not strayed so far that the trial judge erred when he determined that they did not have to be redone. [10] With respect to the fourth issue, will deal with this by addressing the two types of objections made by Dr. Miller to answering some of the interrogatories, namely: the interrogatories were not relevant and the interrogatories need not be answered because they call for opinions; since the answering of these unanswered interrogatories was the issue before the chambers judge. [11] Dr. Miller objects to answering four interrogatories on the basis they are not relevant because they concern his own professional experience with circumcisions. There is no dispute that only relevant interrogatories need to be answered. The chambers judge considered these interrogatories and determined they were not relevant. He did not err in his determination. Interrogatories relating solely to Dr. Miller’s qualifications and experience are not relevant to the subject matter of this action. [12] Dr. Miller objects to answering the balance of the interrogatories on the basis they call for his opinion, without further explanation. He does not indicate whether he is unable to give any of the opinions sought, perhaps because he does not have the required expertise, did not form any opinions, does not recall any opinions he formed, was not present at the time of the circumcision or lacks sufficient factual information. The appellant argues Dr. Miller is required to provide all opinions sought, even if this involves reviewing information from other sources, including his opinion on the relevant standard of care, whether it was breached by the respondent and whether the appellant suffered damage as result of the breach. [13] The chambers judge considered this issue of opinion and I am satisfied he erred by overstating the basis upon which a non-party witness may object to answer an interrogatory calling for an opinion, when he stated, “Dr. Miller cannot be compelled to provide opinion evidence simply because he was a subsequently treating physician to Mr. Madore even though he may possess an expertise in the area of treatment.” The main case the chambers judge relied on in his decision, Eckersley v. Terwiel, (1991) 1991 CanLII 894 (BC SC), 59 B.C.L.R. (2d) 94 (B.C.S.C.), has since the time of his decision been overruled by the British Columbia Court of Appeal in Christensen v. Sinclair, [2002] B.C.J. No. 156 (B.C.C.A.) 65. [14] Dr. Miller’s counsel argues that Dr. Miller has answered all of the interrogatories that relate to his diagnosis and treatment of the appellant. He indicates Dr. Miller previously gave the appellant his complete file dealing with him. He points out what the appellant admits, that the appellant is planning to get his expert evidence through interrogatories directed to Dr. Miller. Dr. Miller’s counsel argues this is not permitted because there is specific rule governing the presentation of expert opinions, CPR 31.08, that must be followed. He points out the possibility of subsequent interrogatories and discoveries of Dr. Miller and argues that to require people in Dr. Miller’s position to give answers to interrogatories that amount to expert opinions is dangerous because it may result in unreliable temporary opinions, given by people without all of the relevant factual information before them. He argues these types of opinions will not be helpful to the trier of fact. He argues that the safeguards provided in CPR 31.08 will not be available to provide fairness to the parties, the experts and the court, if expert opinions are obtainable through interrogatories. He argues the appellant may attempt to add Dr. Miller as party after the interrogatories are answered, which may prejudice Dr. Miller. He suggests the compensation the appellant would pay for interrogatories would be far less than that required to hire an expert because of the steps that must be taken by an expert to ensure his or her report is in accordance with CPR 31.08. He suggests this practice would wreak havoc with emergency room medical staff who may want to avoid involvement and would cause disorder in trial preparation and conduct. [15] He distinguishes the Christensen v. Sinclair case, supra, saying it was an exceptional case because the defendant physician in that case was incapable of giving evidence, there was evidence to indicate there was no other expert available and the physician ordered to answer had previously agreed to be an expert witness and had previously given his opinion that the defendant physician was negligent. There is no evidence of any of these factors in this case. In Christensen v. Sinclair the court ordered non-party who was subsequently treating physician, to be discovered and to answer questions requiring his opinion on the medical services provided by the defendant physician, but limited his examination to previously formed opinions and knowledge of the plaintiff and provided that he would only be obliged to answer questions that he could answer without new research. The court also provided that the physician need not perform literature review for his discovery. The questions ordered to be answered in that case include those directed to the possible negligence of the defendant physician, namely: the standard of care, breach of that standard and resulting damages. [16] The appellant on the other hand argues that Dr. Miller is required to answer all interrogatories that require his opinion, including his opinion as to the applicable standard of care, its breach and resulting damages, because the wording in CPR 19 does not permit Dr. Miller to object to answer an interrogatory on the basis that it requires an opinion. He relies on the Christiansen v. Sinclair case as authority for requiring physician in situation similar to Dr. Miller to provide such opinions. Even though the Christiansen v. Sinclair case did not require the physician to review the records and transcripts of discoveries of other care providers or provide current opinions, the appellant asks this court to require Dr. Miller to do this. The appellant is candid in admitting he plans to use the answers to Dr. Miller’s interrogatories as his expert evidence in place of an expert witness and indicates he is willing to pay for Dr. Miller’s preparation time. [17] The appellant is correct in stating that CPR 19 does not state that non- party witness can object to answering an interrogatory on the basis it calls for an opinion. CPR 19.01(2) indicates that non-party is, subject to Rule 19.03, required to “answer each interrogatory to the best of his personal knowledge and, if necessary, by adding any explanatory information .” [18] CPR 19.03(2) provides that “an objection to answering any interrogatory may only be taken on the ground of privilege or that it is not relevant to the subject matter involved in the proceeding .” underlining added) [19] In some circumstances non-party may be required to answer interrogatories that require an opinion. In some cases the distinction between fact and opinion may not be clear. Gratt v. (1982), 1982 CanLII 33 (SCC), 31 C.R. (3d) 289 (S.C.C.) Under Rule 19.02 interrogatories are governed by the same general rule relating to scope as applies to oral discovery: see Rule 18.09. The key tests are relevance to the subject matter of the proceeding and that the answer lies within the knowledge or means of knowledge of the witness. When the question calls for an expert opinion it must also be shown that the witness is qualified to answer the question. will address the additional concern of not unduly burdening the witness in paragraph 21. The question here is whether the opinions sought by the interrogatories in this case are opinions which CPR 19 requires be provided. [20] With respect to the interrogatories that seek to determine what Dr. Miller did, these have been answered. With respect to the interrogatories that seek to determine Dr. Miller’s reasons for treating the appellant as he did from September 4, 1998 to March 10,1999, the appellant is entitled to also have these answered, even if this requires Dr. Miller to disclose the opinions that went into the formation of his judgment in diagnosing and treating the appellant during this period of time. Dr. Miller is also required to answer interrogatories seeking to determine his opinion at the time he treated the appellant as to what would have happened to the appellant if Dr. Miller had not treated him as he did. These opinions relate to the treatment provided by Dr. Miller. [21] With respect to opinions that Dr. Miller may or may not have formed since he treated the appellant or may now be able to form if he reviewed sufficient factual information and prepared, opinions similar to those an expert witness may provide, he is not required to answer interrogatories calling for such opinions. To require him to do so would be to misinterpret the scope of CPR 19, which must be read in the context of the whole of the rules, including CPR 31.08 dealing specifically with expert opinions, and in light of the provisions of the Judicature Act that permit the court to control its practice and procedure to ensure orderliness and fairness. [22] CPR 19 deals with interrogatories generally. It makes no mention of experts one way or the other. CPR 31.08 on the other hand deals specifically with expert opinion and goes to some length to provide how an expert opinion is to be prepared. [23] CPR 31.08 (1) and (2) provide as follows: (1) Unless copy of report containing the full opinion of an expert, including the essential facts on which the opinion is based, summary of his qualifications and summary of the grounds for each opinion expressed, has been (a) served on each opposite party and filed with the court by the party filing the notice of trial at the time the notice is filed, and (b) served on each opposite party by the person receiving the notice within thirty (30) days of the filing of the notice of trial, the evidence of the expert shall not be admissible on the trial without leave of the court. (2) Where an opposite party wishes to conduct discovery examination of an expert, the opposite party shall pay the expert reasonable fee for his attendance at the examination. If the fee is not paid in advance, the opposite party shall have no right to discover the expert. Unless otherwise ordered, if the opposite party is awarded costs following the trial, that party shall be entitled to recover as disbursement the amount paid to the expert for his attendance at discovery. [24] The detail required by this Rule ensures the factual basis of the expert’s opinion is clear to the trier of fact who will have to assess the weight to give the opinion taking this into account and ensures adequate notice to the parties of experts opinions to avoid surprise and help the trier of fact discover the truth. This rule also provides specifically for discoveries of experts and their reimbursement. To allow interrogatories to be used to usurp this function, without the presence of such safeguards for the parties, the experts and the court, would not be in accordance with the orderly and fair trial practice and procedure that the Civil Procedure Rules promote. [25] Taking the above into account, am satisfied it is not sufficient for Dr. Miller to have objected to answer the balance of the interrogatories by simply stating they require an opinion. Depending on the nature of the opinion, it may be necessary for him to provide it. For instance, opinions relating to the diagnosis and treatment provided are required, such as those suggested in interrogatories numbers 8, and 10 of the first set of interrogatories; namely, Dr. Miller’s opinion as to whether the appellant had received complete circumcision when he first saw his penis on September 4, 1998; his reasons for performing surgery in September, 1998; and what Dr. Miller thought in September, 1998, would be the consequences to the appellant if he had not operated. Accordingly, Dr. Miller should re-answer the interrogatories he previously objected to on the basis of opinion, but without prejudice to his right to raise properly supported and articulated objection to answering any particular one as he may be advised, which he will probably be able to do with respect to many of the interrogatories which seek opinions about the respondent’s care of the appellant rather than Dr. Miller’s treatment of the appellant. [26] Dr. Miller should also answer the parts of interrogatories number 20 and 21 of the first set of interrogatories that do not seek an opinion, namely as to what he observed as to the removal and sewing down of the foreskin of the appellant’s penis when he first saw it and whether the appellant was referred to him by Dr. Ibrahim. [27] While recognize medical terminology may be involved, in answering these questions Dr. Miller should attempt to use language that can be understood by the appellant, his counsel and the court. [28] This decision expressly does not deal with the issue of physicians who are co-defendants or non-party physicians who have not subsequently treated party to the litigation. [29] am satisfied the chambers judge did not err in providing in the order that in the event the appellant serves further interrogatories or requests discovery of Dr. Miller, the appellant will pay Dr. Miller’s reasonable hourly rate. [30] Accordingly, leave to appeal is granted and the appeal is allowed in part as hereinbefore provided. [31] Since success on the appeal has been divided, there should be no order for costs. Hamilton, J.A. Concurred in: Roscoe, J.A. Cromwell, J.A.

The plaintiff appealed an interlocutory decision in which the chambers judge held that a non-party medical doctor who had provided emergency treatment to the plaintiff did not have to answer certain interrogatories on the basis that they required an opinion. The admitted purpose of the appellant was to use these answers as his expert evidence at trial. Appeal allowed in part; the chambers judge did not err in refusing to appoint the doctor as a court expert where he indicated that he did not wish to be an expert; the chambers judge did err in finding that opinion evidence is never required to be given. Opinions that go into the formation of the doctor's judgment in diagnosing and treating the appellant are to be provided. However, opinions typically asked of an expert witness with respect to the medical services provided by the respondent that were not formed as part of his diagnosis and treatment of the appellant are not required to be provided. Interrogatories cannot be used to usurp the Rules surrounding the use of expert evidence.

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2000 SKQB 111 Q.B.G. A.D. 1996 No. 2061 J.C.S. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF SASKATOON BETWEEN: CRAIG LORNE BAUN and HOMES LTD. and DENIS SLATER DEFENDANTS P.H. Loran for the plaintiff B.E. Nussbaum for the defendants JUDGMENT GEREIN J. March 13, 2000 [1] In 1994 the plaintiff engaged the defendant, D & S Homes Ltd., to construct a residence. It is alleged that the defendant failed to perform as agreed and in consequence the plaintiff seeks damages. The defendant resists the claim and by way of a counterclaim seeks judgment for extras requested by the plaintiff. have concluded that there is merit to both the claim and the counterclaim and after implementing set-off, judgment should be granted to the plaintiff, but for much lesser sum than claimed. The Background Facts [2] Late in 1993 the plaintiff was interested in having quality home built for himself. He contacted the defendant, Denis Slater, who is president of the defendant, Homes Ltd., company which builds custom homes. At the time the plaintiff was 24 years of age and had no knowledge or experience in the area of home construction. However, he was and is well educated and possessed of intelligence and common sense. He was well able to deal with Slater and events as they came to pass. [3] Mr. Slater recommended that the plaintiff retain one Andrew Wist, an architectural technologist, to draw blueprints of the proposed house. This was done and the blueprints were completed in March, 1994. The plaintiff and Slater then entered into discussions about the specifications and ultimately agreed upon them. On April 21, 1994, the plaintiff and corporate defendant entered into written contract which has several components. [4] It provided for the purchase of lot, which is municipally described as 918 Braeside Place, and construction of home thereon, its size being 2540 square feet. The total cost was stated to be $277,743.00. Specifications and list of miscellaneous items are part of the contract as is payment schedule. Within the document there is this provision. All extras which the owner requests will be treated as an extra over and above the contract price to be paid to Homes Ltd. on possession date. Completion date was fixed at September 1, 1994. [5] The work commenced in May and was completed at the end of December, 1994. Throughout that time the plaintiff was regularly and closely involved in the project. He ordered many and varied extras. Several were at significant cost. The ultimate charge for extras was $41,007.83, bringing the total final cost of the house to $318,750.83. [6] The plaintiff took possession of the house upon its completion and by April 24, 1995, had paid all monies charged except the sum of $4,007.83. This was withheld to ensure rectification of number of deficiencies. To date the money has not been paid and this has brought about the counterclaim. On May 1, 1996, the plaintiff moved to Calgary, Alberta. On April 1, 1997, he sold the subject house for $280,000.00, having listed it for sale in November, 1995. [7] Within the outlined scenario, there are several contentious matters which require determination and describe them as follows. (1) Whether the pillars at the front of the house are an extra; (2) Whether the entire cost of installing steam room was properly charged to the plaintiff; (3) Whether the plaintiff is liable to pay for any extras; (4) Whether the defendant is liable for any deficiencies; (5) Whether the defendant is liable for loss of rental income because of delay. (6) Whether the plaintiff is entitled to damages for diminution of value. will deal with each matter in turn. (1) The Pillars [8] On this issue the parties are diametrically opposed. The plaintiff swears that he instructed the defendant that round pillars were to be installed on the front of the house and that this was done prior to execution of the contract. Mr. Slater swears there were no such instructions. Rather, it was in June of 1995 that the plaintiff told him that he wanted round pillars. As result, they were installed as an extra at an additional cost of $5,900.00. [9] The plaintiff testified that he was in Phoenix, Arizona, in February or March of 1994, and there saw house which he liked. It had round pillars in the front and red tile roof. He hoped to use it as model for his house and therefore took picture of it. He showed the picture to Slater who told him that similar house could be constructed in Saskatoon. The plaintiff then took the picture to Mr. Wist who thereafter drew the blueprints. The photograph has been lost, but Mr. Wist testified and confirmed that he saw such photograph and understood the house was to have round pillars. Unfortunately, in the blueprints he drew square pillars. However, it is clear that picture showing round pillars was present in Saskatoon in March of 1994. [10] While he denies any knowledge of round pillars prior to June of 1994, Mr. Slater was aware that the roof was to be of red tile. This is set out in the specifications which form part of the contract of April 21, 1994. However, he says that he was shown picture of house with such roof, but it did not have round pillars. He suggests he was shown two different pictures at two different times. [11] When weigh the whole of the evidence conclude that the testimony of the plaintiff is the accurate account. He was in Phoenix only once in early 1994. He was struck by two things which were part of the Phoenix house: the pillars and the roof. It does not seem likely that he would then speak with his contractor about only the one. Furthermore, the plaintiff was obtaining advice from Slater from time to time and it makes sense that he would speak to him about both the pillars and the roof before speaking with Mr. Wist. [12] In the end, I am satisfied that there was a discussion about round pillars and it was intended that they would be a part of the contract. Mr. Slater simply forgot about the discussion. However, in the circumstances, he cannot now be heard to say the round pillars were an extra with the plaintiff to be responsible for the cost. Rather, the cost of $5,900.00 is that of the defendant. (2) The Steam Room [13] In the early fall of 1994 the plaintiff and Slater discussed building a steam room in the bathroom off the master bedroom. Slater suggested that this be done and he estimated that the cost would be about $3,000.00. The plaintiff adopted the suggestion and the work was done. [14] This construction was not a part of the contract, but was clearly an extra ordered by the plaintiff. As such he is liable to pay for the work. However, he also was entitled to rely upon the representations of the defendant as to cost and he in fact did so. Only an estimate was provided and some tolerance should be allowed. With this in mind, hold that the plaintiff is liable for $3,500.00. He in fact was charged $6,097.82 made up of the following. (a) supply and install steam unit and switch $1,847.58 (b) marble for steam unit $2,792.74 (c) labour and material to plywood steam area 82.50 (d) steam room shower doors and walls $1,375.00 Total $6,097.82 Accordingly, the plaintiff is entitled to credit of $2,597.82. (3) The Other Extras [15] The plaintiff submits that he should not be required to pay for the balance of the extras because the defendant has failed to provide invoices to substantiate the cost of the extras. find no merit in this position. [16] Throughout the construction the plaintiff ordered many changes, improvements and additions. They clearly were extras and it was understood by both parties that the plaintiff would pay for them. The contract contemplated that there would be extras, but it did not speak to their cost. However, both parties agree that the amount which was to be charged to the plaintiff was to be the actual cost to the defendant. [17] On February 3, 1995, the plaintiff and Mr. Slater met and discussed the extras. Each item was reviewed and some were deleted and others were changed. In the end, the cost was reduced from $57,969.81 to $41,007.83. Slater undertook to provide the invoices for the work, but largely failed to do so. Despite this neglect, the plaintiff paid $37,000.00 in April, 1995, holding back only $4,000.00 in respect to deficiencies. [18] In my opinion, production of the invoices was not a condition precedent to payment. accept the evidence of Mr. Slater that the plaintiff agreed that the sum owing was $41,007.83. Were it otherwise, would expect nothing to be paid on account of the extras or certainly sum much less than $37,000.00. On the whole of the evidence, I am satisfied that the charges were fit and proper and the plaintiff is liable for them. This is subject to an adjustment for the pillars and the steam room. (4) Deficiencies [19] In the summer of 1996 it was discovered that water would not run out of the basement drain because concrete was embedded in the drain. The only time this could have occurred was during construction when the floor was poured. This situation is the result of negligence on the part of the contractor and responsibility rests with the defendant. The cost to remove the blockage and repair the water damage was $764.62. The plaintiff is entitled to recover that amount. [20] There were several other deficiencies. These included large crack in the living room ceiling, an overhang which came loose, plugged eaves trough which overflowed and stained the stucco, paint peeling on the pillars, tiles which had fallen off, some missing soffits and screens, defective weatherstripping on the garage door, cracks around skylights and build-outs, and defective steam shower. Several of the deficiencies were corrected while the plaintiff was still in the house e.g. the eaves trough and stucco, the soffits and the painting of the pillars. An attempt was made to repair the crack in the living room, but was unsuccessful. Some other repairs were effected after the plaintiff moved out. In the end, aside from the basement drain, the plaintiff paid nothing for the repair of deficiencies. will return to this later. (5) Rental Income [21] The construction was completed four months late. There is disagreement as to what was the cause of the delay. I have concluded that it is attributable to both parties equally. [22] During the trial Slater testified that there was an excessive number of changes. Then he acknowledged that at the examination for discovery he had said that the changes were typical and what would be expected when building custom home. [Transcript Q. 49] In the end, have concluded that changes were to be expected, but also take note that they were being requested from the outset almost to the end. What is equally important is the nature of the changes. Some of them were very extensive; such as changing the interior wood to maple, creating steam room, and doing build-outs in the kitchen. The timing and the nature of many of the changes contributed to the delay. The plaintiff was responsible for this and must have been aware of it for he never objected to the delay. [23] At the same time, am satisfied that the defendant did not press on as he might have. He did not ensure that the program of construction was clearly defined and adhered to. This also contributed to the delay. [24] The plaintiff always intended to have two friends live in the house with him and pay monthly rental of $300.00 each. In addition, he was to be paid $100.00 month by his employer for the use of his garage for storage. Thus, he was to have monthly income of $700.00 from the use of the house. The delay postponed this and the plaintiff is entitled to recover from the defendant one-half of that loss or $1,400.00. [25] The plaintiff also made claim for interest he had to pay on his line of credit. Had the construction been completed on time he would have had to pay interest from the completion date on the full purchase price. As result of the delay he did not have to pay the balance of the purchase price until December, 1994. Payment for the extras was not made until April, 1995. Thus he enjoyed savings by way of not paying interest. In the end, allow nothing for interest costs. (6) Diminution of Value [26] The plaintiff claims $4,000.00 for diminution of value because certain deficiencies were present when the house was sold in 1997. In respect to this issue the plaintiff filed report of an appraiser in which she expressed the opinion that the deficiencies caused reduction of $4,000.00 in the sale price. However, do not have much confidence in the opinion. [27] The report is recent, being dated December 16, 1999. It was prepared some two and one-half years after the house was sold. Reliance was placed to some degree on pictures showing certain deficiencies. The pictures were taken long before the sale of the house in April of 1997 and several of the deficiencies had been repaired before the sale. This approach reflects adversely upon the opinion. [28] On the other hand, the appraiser speaks of the deficiencies as being only cosmetic and that knowledgeable purchaser would recognize them as such and adjust the price in accordance with the cost of repairs. However, she goes on to say that the presence of the deficiencies would cause purchaser to be wary and to reduce his purchase price to allow for other potential problems. have reservations about the latter, especially when the deficiencies are relatively minor in relation to the overall quality and cost of the house. In fact, the people who purchased the house made specific arrangements for the repair of certain deficiencies and for payment of those repairs. As to any other deficiencies present at the time of sale, accept that the cost of repairing them would not have exceeded $1,000.00. [29] There are two other factors which had bearing on the sale price. As pointed out by the appraiser, the house was “stale” listing and this would affect the price. Secondly, the house was custom built and something of luxury product. It is not uncommon for such properties to sell for less than their original cost. [30] Having considered all the evidence, it is my conclusion that the cost of performance would have been $1,000.00. The diminution in value is the same amount. In SEDCO v. William Kelly Holdings Ltd., 1990 CanLII 7822 (SK CA), [1990] W.W.R. 134 (Sask. C.A.) at p. 162, Cameron J.A. said this about valuing loss in building case. Setting aside for now issues of mitigation and avoidance and turning to the measure of the loss, am of the opinion this component fell to be valued on the basis of cost of performance (of bringing the system up to the standard originally intended) and not in the diminution in value of the building (the difference between the commercial value of the plant as built and as it ought to have been built). Though these may be seen, perhaps, as obverse sides of the same coin, and though the tests will often produce the same result, that is not invariably the case. On occasion, one or the other will prove inadequate to the task. But in the building cases, cost of performance is the prima facie measure of damages: see, for example, East Ham Corp. v. Bernard Sunley Sons Ltd., [1966] A.C. 406, [1965] W.L.R. 1096, [1965] All E.R. 619 (H.L.); Perry v. Sidney Phillips Son (A Firm), [1982] W.L.R. 1297, [1982] All E.R. 705 (C.A.); Nu-West Homes Ltd. v. Thunderbird Petroleums Ltd. (1975), 1975 CanLII 1009 (AB CA), 59 D.L.R. (3d) 292 (Alta. C.A.). However that is only the prima facie measure. Considerations of reasonableness are capable of displacing it, as for example they do when the cost of performance is disproportionately high relative to the value of what is or might be achieved through performance. This position has been adopted more recently in Paterson (N.M.) Sons Ltd. v. Rail Contractors Ltd. et al. (1997), 1997 CanLII 11230 (SK QB), 155 Sask. R. 156 (Q.B.) at p. 159. [31] Thus, cost of performance is to be preferred as the measure of damages, but reasonableness may require different approach including diminution of value. In this case, the two approaches produce the same result, namely: loss of $1,000.00. [32] recognize that the plaintiff never incurred the cost of repairs. However, it must be remembered that he demanded they be effected and withheld $4,000.00 to ensure compliance. He moved off this position only when he was forced to in order to effect sale. In such an instance he should not be precluded from recovering his loss, however it came about i.e. through lack of performance or diminution of value. [33] The final claim made by the plaintiff is for distress and inconvenience. can find no basis upon which to allow such claim and decline to do so. [34] For the reasons stated, hold that the plaintiff was wrongly charged for the cost of round pillars in the sum of $5,900.00 and for the steam room he was charged an excessive amount of $2,597.82. He incurred repair costs of $764.62 and lost rental income of $1,400.00. Finally, he suffered loss of $1,000.00 as result of deficiencies. The total entitlement of the plaintiff is $11,662.44. [35] The defendant, D & S Homes Ltd., is still owed $4,007.83 by the plaintiff. That amount should be set off against the plaintiff’s claim with the result the plaintiff should recover $7,654.61. [36] The claim against the defendant, Denis Slater, should be dismissed as there was no evidence that he was party to the construction contract or that he acted in any capacity other than that of an officer of the corporate defendant. Conclusion [37] In the result, the plaintiff shall have judgment against the defendant, D & S Homes Ltd., in the amount of $7,654.61. The claim against the defendant, Denis Slater, is dismissed. At the request of counsel, the matter of costs may be spoken to on date arranged with the Local Registrar.

The plaintiff claimed damages for failure to perform as agreed in constructing a residence. Deficiencies included a large crack in a ceiling, a loose overhang, a plugged eaves trough which overflowed and stained the stucco, peeling paint, tiles which fell off, missing soffits, defective weatherstripping, cracks around the skylights and build outs and a defective steam shower. The defendant counterclaimed for extras requested by the plaintiff. HELD: The plaintiff was awarded judgment for $7,654.61. The $4,000.83 withheld by the plaintiff was set off against this claim. 1)It was intended the round pillars would be part of the contract. They were not an extra that the plaintiff should be responsible for. 2)The steam room was an extra ordered by the plaintiff but he was entitled to rely upon the representations of the defendant as to cost. 3)The parties agreed the amount to be charged to the plaintiff was the actual cost to the defendant. Production of the invoices was not a condition precedent to payment. The charges were found to be fit and proper. 4)Aside from the basement drain, the plaintiff paid nothing for the repair of deficiencies. 5)The 4 month delay was attributable to both parties. The plaintiff enjoyed savings by way of not paying interest. He was entitled to recover one-half of the loss of potential rent and lost storage charges for the use of the garage due to the delay. 6)The deficiencies were relatively minor and the cost of repairing them at the time of the sale of the house in 1997 would not have exceeded $1,000. It is not uncommon for custom built luxury houses to sell for less than their original cost. 7)The claim against the individual defendant was dismissed as there was no evidence that he was a party to the construction contract or that he acted in any capacity other than that of an officer of the corporate defendant. 8)Costs may be spoken to.

2_2000skqb111.txt

J. Q.B. A.D. 1998 No. 05780 J.C.P.A. IN THE QUEEN’S BENCH (FAMILY LAW DIVISION) JUDICIAL CENTRE OF PRINCE ALBERT BETWEEN: CORINNE FAYE PULAK and DONALD HARVEY PULAK RESPONDENT Jean P. Maksymiuk for the petitioner Evatt F.A. Merchant for the respondent FIAT GEREIN J. April 5, 1999 [1] This is an application wherein the respondent seeks an order for interim spousal support. have concluded that relief should be granted, but in the circumstances it should not take the form of spousal support. [2] The parties were married on January 24, 1981, and ceased to cohabit on December 29, 1996. There are three children who live with the petitioner. They are the following: Melissa Ann born April 23, 1982 (16) Matthew Robert born March 19, 1984 (15) Mark Andrew born May 28, 1986 (12) Since the separation the petitioner alone has provided for the children. [3] The respondent is 52 years of age and is unemployed. In the past he has been diagnosed as paranoid schizophrenic and suffering from personality disorder. His present physician describes him as being of sound mind and able to manage his own affairs. In any event, in 1987 he qualified for disability pension under the Canada Pension Plan by reason of his mental disability. This provides his basic income of $580.00 month. When you factor in the G.S.T. rebate his total monthly income is $630.00. At present he lives with friend and pays no rent, but buys the food for both of them. This cannot continue indefinitely. In his financial statement, the respondent states his monthly expenses are $595.00. [4] In that same financial statement the respondent sets out matrimonial property which he values at $488,040.00. The petitioner discloses much the same property, but values it at $293,874.00. The difference in value relates to certain farmland which the respondent brought into the marriage. In total there is section of land, one quarter of which contains the matrimonial home. [5] The petitioner and children reside in that home. The petitioner is 39 years of age and also is unemployed because she is an incomplete quadriplegic. She has three sources of monthly income, namely: (a) Canada Pension Disability Pension $1,049.00 (b) Disability Insurance: London Life 583.00 (c) Pension for children from Respondent’s pension 509.00 Total $2,141.00 According to her financial statement, sworn December 29, 1998, the monthly expenses of the petitioner and children come to $4,086.00. This includes mortgage and land tax payments. [6] There is another source of revenue and that is the farm land which is rented out. The petitioner has de facto possession of the land and receives the entire rental. According to the affidavit of the petitioner sworn on March 16, 1998, the following rents were paid in the years indicated: (a) 1996 $8,000.00 para. 25(a) (b) 1997 $17,000.00 para. 30 In her affidavit sworn on December 14, 1998, the respondent in para. 39 states her share of the 1998 crop has value of $16,000.00. In addition, she received $1,700.00 by way of crop insurance. [7] In summary, the petitioner has to date enjoyed monthly income of some $3,400.00. From that she has provided for herself and the three children. On the other hand, the respondent has monthly income of $630.00 which is insufficient to enable him to rent an apartment and meet his other needs. [8] The claim for relief is grounded in the fact that the respondent is the registered owner of the farm land. This being so, it is argued that he should receive the income from it. In the alternative, it is submitted that he should receive monies by way of spousal support. [9] I can find no juridical reason why the petitioner should obtain the total revenue from land owned by her spouse, particularly when he brought the land into the marriage. In fact, fairness and equity would suggest just the opposite, at least in respect to one half the revenue. Accordingly, I choose to make an order on the basis of the respondent’s ownership of the land rather than order payment of spousal support. [10] In calculating what should be paid commence with rental income of $16,000.00. From that should be deducted mortgage payments and taxes which total some $10,000.00. This sum should be left with the petitioner to meet those obligations which presently form part of her monthly expenses as set out in her financial statement. The balance of $6,000.00 should be paid to the respondent by way of monthly payments in the amount of $500.00. [11] It was argued on behalf of the petitioner that she does not have the means to make the indicated payments. In response note the following. She has pension income of $2,141.00 and rental income of $1,333.33 for total monthly income of $3,474.33. Her stated expenses are $4,086.00 which results in shortfall of $611.67 which increases to $1,111.67 if she is required to pay out an additional $500.00 month. [12] However, her expenses are inflated. There is monthly expense of $290.00 for dental and eye care. No explanation is given for this. There is monthly expense of $75.00 for “other”. This is meaningless to me. There is monthly payment on bank loan which was obtained to purchase an RRSP and thereby reduce tax liability. The transaction was appropriate, but it must be remembered that there is an off-setting asset which could be sold and reduced loan payments would result. There is monthly expense of $500.00 for legal fees. Finally, small economics could be achieved. In the end, have no hesitation in concluding that the petitioner has the means to pay $500.00 month. [13] It was also submitted on behalf of the petitioner that the first consideration is that the childrens’ reasonable needs must be met. do not quarrel with that statement, but one cannot totally ignore the needs of parent. More importantly, the reasonable needs of the children will be met even if some of the rental income is paid to the respondent. [14] It is interesting to note that in her financial statement the petitioner attributes $2,292.58 to the children. If one refers to that sum in The Federal Child Support Guidelines the related income exceeds $150,000.00. recognize that much of the $2,292.58 is the result of an arbitrary and artificial attribution, but it does demonstrate that on the basis of the respondent’s income the children are being adequately provided for. On the other hand, were one to take the respondent’s total pension income, including G.S.T. credit, along with the whole of the rental, his total annual income would be $23,560.00. On that amount, The Federal Child Support Guidelines would stipulate payment of $442.00 month. In fact, they are receiving $508.00 by way of the Canada Pension Plan Benefits. Any payment order will not impact upon that. It seems obvious that an order as contemplated will not jeopardize the welfare of the children. [15] It was also submitted that the respondent does not need financial assistance. It was suggested that because of his mental disability he could live in group home and the cost would be relatively low. It was pointed out that the respondent doesn’t manage his finances well and reference was made to the fact that he spends over 25 per cent of his present income on the luxuries of eating out, entertainment, recreation and cigarettes. The actual amount is $210.00 which is 33 per cent of his present income of $630.00. [16] In this regard, simply say that there is no requirement that the respondent live in group home and there is no basis upon which can order or even expect such. As to the matter of luxurious living, do not see monthly expenditure of $200.00 to amount to such. The fact remains, the respondent is in the position of not being able to obtain suitable shelter on his own and that is deplorable. [17] Ultimately conclude that there is sufficient total means to enable the petitioner and the children to enjoy reasonable standard of living and the respondent to enjoy an improved standard. The latter can be achieved by providing to the respondent some of the income earned from his land. Conclusion [18] In the result, it is ordered that the petitioner pay to the respondent the annual sum of $6,000.00, which shall be paid in monthly installments of $500.00 commencing April 1, 1999. The respondent will have his costs of this application in any event of the cause, which costs fix at $400.00.

The respondent seeks an order for interim spousal support. The parties were married in January 1991 with three children and ceased to cohabit in December of 1996. The respondent is 52 years old and unemployed. In the past, he has been diagnosed as paranoid schizophrenic and suffering from a personality disorder but is currently, according to his physician, of sound mind. He qualifies since 1987 for a disability pension under CPP by reason of his mental disability which provides for a basic income of $580 plus GTS rebate for a total of $630 per month. The petitioner lives on a section of farm land which was brought into the marriage by the respondent, of which one quarter contains the matrimonial home. The petitioner and children live in that home. The petitioner is 39 years old and is also unemployed because she is an incomplete quadriplegic. The farm land is rented out from which the petitioner receives rental income. The petitioner enjoys an income of $3,400 per month while the respondent receives $630 per month. HELD: The petitioner is ordered to pay the respondent the annual sum of $6,000 paid in monthly installments of $500. There is no juridical reason why the petitioner should obtain the total revenue owned by the respondent particularly when he brought the land into the marriage. In fact, fairness and equity would suggest just the opposite, at least in respect to one half of the revenue. Accordingly, the Court makes an order on the basis of the respondent's ownership of the land rather than order payment of spousal support.

2_1999canlii12669.txt

G.M. Kraus QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2007 SKQB 388 Date: 2007 10 26 Docket: QB 452 of 2006 Judicial Centre: Yorkton BETWEEN: HER MAJESTY THE QUEEN and DAVID JOHN LUNDRIGAN Counsel: Andrew J. Wyatt for the appellant David John Lundrigan on his own behalf JUDGMENT PRITCHARD J. October 26, 2007 [1] On August 9, 2006 Mr. Lundrigan was found not guilty of having care or control of a motor vehicle while his blood alcohol content was over .08. This was the inevitable result of the trial judge’s decision that the certificate of analysis could not be tendered as evidence at trial. The evidence was excluded because the trial judge concluded that contrary to s. 8 of the Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 (the “Charter”) the officer did not have reasonable and probable grounds to make the breathalyzer demand and further, that pursuant to s. 24(2) of the Charter, the admission of the certificate of analysis into evidence would bring the administration of justice in disrepute. The Crown appeals both conclusions and asks this court to set aside the acquittal and order new trial. [2] On April 16, 2005 two officers in separate patrol cars were travelling on Highway 47 northbound towards the Trans-Canada Highway. They noticed another vehicle with Manitoba license plates travelling in the opposite direction. It was later determined that this vehicle was being driven by the respondent, Mr. Lundrigan. Approximately one mile south of the Trans-Canada Highway the first patrol car dropped off passenger and both police vehicles then turned around and headed back southbound on Highway 47. Shortly after proceeding southbound, the officer in the first patrol car noticed vehicle of similar colour to the one she had earlier seen travelling southbound. It was now on grid road just off Highway 47. She saw the vehicle out of the corner of her eye as she was passing the grid road turnoff. She radioed her partner to check it while she turned around to join him. Highway 47 is not well travelled highway and the officers wanted to check the parked vehicle to see if any assistance was required. At the same time as the second officer was receiving the radio transmission he also noticed the vehicle as its brake lights had come on. As requested by his partner, he turned onto the grid road and pulled up behind the stopped vehicle. He walked to the car and as he was approaching the driver’s window he noticed can of beer laying on the floor in the rear passenger area of the vehicle. He asked the driver if everything was alright. The driver, Mr. Lundrigan, replied that he had pulled over to urinate. The officer asked for and received Mr. Lundrigan’s Manitoba driver’s license. He then asked the driver about the can of beer on the floor and was told “Oh, that must be old; it must of been there couple of weeks.” [3] It was at this time that the officer in the first patrol car arrived. She was the more senior of the two partners. As she approached Mr. Lundrigan’s vehicle on the driver’s side she noticed two cans of beer on the passenger floor in the back. She asked Mr. Lundrigan about them and he stated that those were beer that “he had drank [sic] earlier in the car.” While speaking with the driver, the officer smelled alcohol “emanating from Mr. Lundrigan” (p. 15; l. 24) and in code words advised her partner that they were possibly dealing with an impaired driver. [4] As the more senior officer was speaking to Mr. Lundrigan, the other officer began walking around the car towards the passenger side. The car was still running and he asked Mr. Lundrigan to turn off the engine and unlock the doors so he could retrieve the beer can on the back floor. Mr. Lundrigan cooperated. The officer opened the rear passenger door at which time he found four unopened cool cans of beer. Upon further investigation, he noticed “drops and some spill” (p. 29; l. 17) on the floor of the front passenger seating area that to him smelled like beer. While the vehicle was being checked by this officer, his partner asked the driver to come to her police vehicle at which time she asked him to provide breath sample for testing in roadside screening device (the “ASD”). This occurred at 20:28. After four unsuccessful attempts, Mr. Lundrigan blew properly into the ASD and at 20:32 fail result was recorded. [5] While the officer was dealing with Mr. Lundrigan in her patrol car, the other searched the area around the car and found an empty beer can with fresh suds in it. He emptied out the contents of the four full cans that he had located in the back seat of Mr. Lundrigan’s vehicle and placed all five empty cans in the back of his patrol car. He then went to assist his partner. By this time, Mr. Lundrigan had already registered fail on the ASD and was being read his rights to counsel. The officer who had searched the vehicle and surrounding area did not advise his partner of the additional full cans of beer or of the fresh empty beer can that he had found. [6] The officer who administered the ASD test to Mr. Lundrigan and made the breathalyzer demand of him acknowledged that she would not have had reasonable and probable grounds to make the breathalyzer demand if Mr. Lundrigan had not registered fail on the ASD. It is therefore unnecessary to review any subsequent facts as the primary issue on appeal is the correctness of the trial judge’s finding that the ASD results did not give the officer reasonable and probable grounds to make the breathalyzer demand. [7] The law on approved roadside screening devices has been summarized by Durno R.S.J. in R. v. Mastromartino, 2004 CanLII 28770 (ON SC), [2004] O.J. No. 1435. This decision deals with two Crown appeals and two defence appeals relating to four separate individuals each of whom registered fail result from an ASD test performed within 15 minutes of each having left tavern. Common to each of the appeals was the issue of whether the officer was required to delay obtaining an ASD sample due to concerns about residual mouth alcohol. At paragraph 23 the court states: [23] In summary, take Bernshaw and Einarson to establish the following: 1. Officers making ASD demands must address their minds to whether or not they would be obtaining reliable reading by administering the test without brief delay. 2. If officers do not, or reasonably could not, rely on the accuracy of the test results, the results cannot assist in determining whether there are reasonable and probable grounds to arrest. 3. Officers making ASD demands may briefly delay administering the test if, in their opinion, there is credible evidence which causes them to doubt the accuracy of the test result unless the test was briefly delayed. 4. Officers are not required to wait before administering the test in every case where driver may have been in bar shortly before being stopped. The mere possibility that driver has consumed alcohol within 15 minutes before taking the test does not preclude an officer from relying on the accuracy of the screening device. 5. Whether or not officers are required to wait before administering the screening test is determined on case-by-case analysis, focusing on the officer’s belief as to the accuracy of the test results if the tests were administered without delay, and the reasonableness of that belief. 6. That fact the driver is observed leaving bar is relevant circumstance in determining whether it was reasonable for the officer to delay the taking of the test in order to obtain an accurate sample. However, officers are not required to ask drivers when they last consumed alcohol. 7. If the officer decides to delay taking the sample and that delay is challenged at trial, the court must decide whether the officer honestly and reasonably felt that an appropriately short delay was necessary to obtain reliable reading. 8. If the officer decides not to delay taking the sample and that decision is challenged at trial, the court must decide whether the officer honestly and reasonably believed that he could rely on the test result if the sample was taken without delay. [Emphasis added] [8] There is no fixed rule or formula that an officer must follow when determining whether or not to wait 15 minutes prior to administering road side test. Each decision is to be made on case by case basis. At paragraph 35 of R. v. Einarson, 2004 CanLII 19570 (ON CA), [2004] O.J. No. 852, the Ontario Court of Appeal restates this principle (which was previously enunciated by the Supreme Court of Canada in R. v. Bernshaw (1995) 1995 CanLII 150 (SCC), 95 C.C.C. (3d) 193 (SCC)) as follows: 35 Bernshaw makes it clear that the mere possibility that driver has consumed alcohol within 15 minutes before taking the test does not preclude an officer from relying on the accuracy of the statutorily approved screening device. Where an officer honestly and reasonably concludes on the basis of available information that he can form no opinion as to whether the driver consumed alcohol within the prior 15 to 20 minutes, the officer is entitled to rely on the accuracy of the statutorily approved screening device and administer the test without delay. That is not to say that another officer might not assess the same situation differently and have legitimate concerns about the reliability of test administered without brief delay and act accordingly. In each case, the officer’s task is to form an honest belief based on reasonable grounds about whether short delay is necessary to obtain reliable reading and to act on that belief. [Emphasis added] [9] Here, the evidence of the officer who performed the ASD is unequivocal. At page 19 of the transcript of evidence, the following questions and answers were put to the officer on cross-examination: And what exactly do you have noted there? What have noted on here is, it was lone male, two cans of O.V. on the back passenger floor, said he had been drinking earlier in his car. Had been drinking earlier in the car? In his car, yes. Okay. Did you ask him any questions at that point of how earlier? No, don’t believe did. Why not? Because didn’t. It didn’t occur to you to find out whether or not he’d just put down beer once your officer arrived on the scene? No. Is that just negligent on your part? No. No. Are you not interested in finding out that information? Constable Guider was doing his share and was doing mine. ... And further, at pages 20 to 22, the following questions and answers on cross-examination were given and recorded: Given that this person had made comments to you that they had been drinking in the vehicle, why wouldn’t you at that point find out when their last drink was? He said he had been drinking earlier in the vehicle, and to me earlier meant more than would say in my estimate an hour. Where are you getting that from? My estimate. Okay. My view of it is that. So there’s no information from him? That’s correct. You just said it must have been an hour? That’s correct. Because Or to me earlier meant more than an hour. So it’s fair to say you didn’t even have concerns at that point that this guy could have just finished beer and had mouth alcohol in his mouth? That’s correct. And that’s why you conducted the tests as quickly as you did and that’s why you didn’t wait? That’s correct. And of course you would agree with me that if he did have alcohol in his mouth, that would skew the test. You’d get false positive. You’d get spiked reading? It’s possible. Yes. Well that’s the reason why you do this protocol that you wait? Yes. So if you had it over again, would you have waited? No. No. Why is that? Because he did say he had consumed earlier in his vehicle, and to me again said that it was over an hour. Therefore, it was way past the 15 minutes. [10] Subjectively, the officer in this case was clearly satisfied that she did not have to delay administering the test to obtain reliable result. However, in his reasons for judgment, the trial judge states: In this case, having regard to the circumstances, the accused was detained and as result of the circumstances which are spilt [sic] beer in the vehicle, an empty beer can with fresh suds of the same type and temperature close to the vehicle, and the accused’s statement, as well as the fact that he is turned off on gravel road to relieve himself, do not find it reasonable in the circumstances for the police officers to not have waited the 15 minutes. (page 158 of the transcript of evidence) [11] The trial judge was particularly concerned that not all relevant evidence was assessed by the officer who administered the ASD. At page 159, he states: And in this case particularly what I’m concerned about is the pass off between Constable Guider and Constable Roussel in that the evidence was there for Constable Guider, which Constable Roussel either did not get or did rely upon. [12] It appears that the trial judge concluded that the officer who administered the ASD would not have relied upon the results, or should not have so relied, if her partner had informed her of the empty beer can with fresh suds in it that he found at the scene. Implicit in this finding is the conclusion that the existence of this beer can would make difference to the officer’s assessment of whether she should wait 15 minutes for any mouth alcohol to dissipate before she could rely on ASD test results. [13] With respect, it appears that the trial judge made the same error that was dealt with by the Ontario Court of Appeal in Einarson, supra. In Einarson, the accused was stopped after making u-turn out of bar parking lot close to where officers were conducting RIDE spot check program. The driver failed the road side screening test and at trial she argued that the test could not be relied on since the officer could not be sure that she had not consumed alcohol with 15 minutes of the test. The driver was convicted at trial. On appeal, new trial was ordered on the grounds that the officer should have waited 15 minutes before administering the test in order to ensure its accuracy. On further appeal, the Ontario Court of Appeal held that the officer was not obliged to wait 15 minutes on the grounds that the driver had just left bar. At paragraph 15 the Ontario Court of Appeal states: 15 In this case, Constable Williams was aware that if the respondent had been drinking within the 15 minutes preceding the making of the demand, the results of the test could be inaccurate. Officer Williams did not know when the respondent had taken her last drink. He knew it was possible that she had consumed alcohol within the 15 minutes preceding the demand. The question for the courts below and this court is whether Constable Williams was entitled to rely on the results of the screening device test in deciding whether he had reasonable and probable grounds to arrest the respondent when he knew there was possibility that the respondent had consumed alcohol within the 15 minutes prior to the administration of the test and that if she had, the result of the test could be inaccurate. [Emphasis added] [14] The Ontario Court of Appeal compared the facts in Einarson, supra, to those dealt with by the Supreme Court of Canada in Bernshaw, supra, and at paragraph 22 concluded: 22 There are several factual similarities between Bernshaw and this case. In both cases, the officers had proper grounds to make s. 254(2) demand. In both cases, the officers did not know when the driver had taken his or her last drink. In both cases, it was possible that the driver had consumed alcohol in the 15 minutes before the demand was made. In both cases, the officers did not specifically inquire of the driver when he or she had last consumed alcohol, although in this case the question would seem to have been pointless since the respondent had twice denied consuming any alcohol. [15] In this case, Mr. Lundrigan told the officer that he had been drinking in the car “earlier”. Even if the officer had been told of her partner’s discovery of an empty beer can at the scene it would not constitute “credible evidence” that Mr. Lundrigan had consumed alcohol within 15 minutes prior to the roadside test. It is possible that Mr. Lundrigan consumed alcohol within that 15 minute time frame, but that is not what he told to the officer. Having seen the two patrol cars pass him on the highway some five minutes earlier, it is also possible that Mr. Lundrigan drove onto the grid road to dispose of an open can. Whether or not Mr. Lundrigan had consumed beer within 15 minutes of taking the test on the ASD is pure speculation. Likewise, whether the wet ground near the driver’s side of the vehicle was just urine is also speculation. [16] I find that the trial judge erred in determining that in the totality of the circumstances it was not objectively reasonable for the officer to have relied on the accuracy of the ASD test. In so concluding have also considered and relied upon R. v. Novakoski, 2004 SKPC 121 (CanLII) and R. v. Claypool, 2003 SKPC 116 (CanLII). [17] Given my finding on the primary issue it is unnecessary to deal with the trial judge’s conclusion that under s. 24(2) of the Charter the certificate of analysis should be excluded from evidence. simply note that in arriving at this conclusion, the trial judge failed to articulate the analysis required for such finding. (See: R. v. Janzen, 2006 SKCA 111 (CanLII) at paragraph 7) [18] Based on the foregoing, the appeal is allowed and the acquittal set aside. The trial judge did not make his decision on the voir dire until the conclusion of the trial in which Mr. Lundrigan led evidence for the purpose of rebutting the accuracy of the certificate of analysis. Given his conclusion on the voir dire, the trial judge did not assess that evidence. A new trial must therefore be held and is so ordered. J. J.L.G. Pritchard

The accused was found not guilty of having care or control of a motor vehicle while his blood alcohol content was over .08. The certificate of analysis was excluded as a result of the trial judge's decision that the accused's s. 8 Charter Rights had been violated. The trial judge found that the officer did not have reasonable and probable grounds to make the breathalyzer demand. HELD: The trial judge erred in determining that in the totality of the circumstances it was not objectively reasonable for the officer to have relied on the accuracy of the ASD test. A new trial is ordered. 1) There is no fixed rule or formula that an officer must follow when determining whether or not to wait 15 minutes prior to administering a road side test. In this case, the trial judge appears to have concluded that the officer who administered the ASD would not have relied on the results, or should not have so relied, if her partner had informed her of the empty beer can with fresh suds in it that he found at the scene. Implicit in this finding is the conclusion that the existence of the beer can would make a difference to the officer's assessment of whether she should wait 15 minutes for any mouth alcohol to dissipate before she could rely on ASD test results. 2) The trial judge made the same error that was dealt with by the Ontario Court of Appeal in R. v. Einarson. 3) The accused told the officer that he had been drinking in the car 'earlier'. Even if the officer had been told of her partner's discovery of an empty beer can at the scene, it would not constitute 'credible evidence' that the accused consumed alcohol within that 15 minute time frame. Whether or not the accused had consumed beer within 15 minutes of taking the test on the ASD is pure speculation.

b_2007skqb388.txt

SCHERMAN U.F.C. 1123 of 1982 and U.F.C. 378 of 1984 IN THE UNIFIED FAMILY COURT AND IN THE COURT OF QUEEN'S BENCH JUDICIAL CENTRE OF SASKATOON BETWEEN: DONNA ADRIENNE OLSON APPLICANT and ALLAN REIER OLSON RESPONDENT Mr. J. Seibel for applicant Mr. Olson for himself JUDGMENT DICKSON,J DATE: January 8, 1986 I granted a decree dissolving the parties\' marriage at trial and reserved judgment on the issues of maintenance, costs and division of matrimonial property. Although the applicant claimed spousal maintenance in her petition, her counsel indicated she was willing to withdraw her claim if she is awarded an equal share of matrimonial property. The parties commenced living together in April, 1978. Two children, now ages and 4, were born before they married in September, 1981. The applicant left the matrimonial home with her children on December 6, 1982 upon discovering her husband in bed with the co-respondent She commenced this action few days later. The respondent attended the trial without counsel. His original counsel withdrew his services shortly after the action was commenced and counsel who replaced him withdrew almost year before the trial. The respondent stated he had no intention of hiring yet another lawyer and was willing to conduct the trial himself. He seemed rather uninterested in the proceeding, refusing to cross-examine any witness. When given the opportunity to take the stand himself, he did so but once there would only express his indignation at the applicant being allowed to proceed with her claim. He protested that he was brought to Court under false pretenses because his wife had said to him the previous spring that she thought his proposal of settlement was pretty good idea. However, he again refused my offer of adjournment for the purpose of hiring counsel and declined to present evidence bearing on the issues to be determined. Therefore, must accept the evidence presented by the applicant as uncontested. That evidence discloses no exceptions, exemptions or equitable considerations that would make equal distribution of matrimonial property unfair or inequitable. With the exception of the two quarters of farmland registered in the name of the respondent, all matrimonial property owned by the parties on the date the application was commenced was acquired during the time the parties cohabited as man and wife. The respondent purchased the land in 1976. He borrowed the entire purchase price from the Farm Credit Corporation. No evidence of the fair market value of the land was presented. However, supervisor of the Farm Credit Corporation, called by the applicant testified that between 1976 and 1980 there was rapid increase in the value of farmland but since 1980 values have declined. He was unable to inform the Court of the value of the land owned by the parties on the date of the marriage. Therefore, am unable to determine the exemption to which the respondent may be entitled. Even if I knew the net value of the farmland at the date of the marriage, I am satisfied that it would be unfair and inequitable to exempt that value from distribution. During cohabitation, the applicant often made machinery and land mortgage payments from her own savings. In total, she contributed $23,000.00 of her savings and all her employment income to the farming operation and family expenses. The respondent admitted, quite blandly, that he spent "just about everything" on booze and drugs; as he so graphically put it: "dusted off on foolishness". The appraised fair market value of the land, on July 30, 1984, is $165,000.00. No other proof of value was offered. Therefore, am willing to accept that figure as the fair market value of the land on December 15,1982, the date the action was commenced, which is the appropriate date for valuing the assets. Value of other assets shown in the following schedule are sworn to in the respondent's financial statement. In 1979, caveat was registered against the title to the land by the respondent's father, claiming an interest as the holder of an equitable mortgage securing advances made to the respondent totalling $25,000.00. In his exam for discovery, the respondent testified that he owned his father nothing. Despite this contradictory evidence, the applicant, in fair-minded gesture, acknowledges the debt owing to the respondent's father. Therefore, the value of matrimonial assets available for distribution is as follows: Fair market value of farmland 165,000.00 Less: mortgage debt 53,008.55 debt owing to respondent's father 25,000.00 78,008.55 86,991.45 Other matrimonial assets: cattle 12,500.00 machinery 43,500.00 grain on hand 35,000.00 cash on hand l,000.00 tools 1,200.00 vehicles 12,950.00 household goods 2,000.00 $108,150.00 Less liabilities: Royal Bank 38,000.00 Fuel bill 1,500.00 cash rental due 6,400.00 45,900.00 62,250.00 Net value of matrimonial property available for distribution: 149,241.45 All matrimonial property is in the respondent's possession. The applicant left the matrimonial home with only personal possessions and clothing. Therefore, the respondent must pay her $74,620.00 as her share of their matrimonial property. He has no cash. Again, in fair-minded gesture, the applicant is willing to accept periodic payments, provided they are secured against the land. The applicant and her children have been dependent upon social assistance since they left the matrimonial home. The respondent was ordered to pay interim maintenance but is many months in arrears. Because matrimonial property has been divided equally, the applicant abandons her claim for spousal maintenance but the respondent must bear his share of the cost of maintaining his children. Therefore, there will be an Order: 1. that the respondent shall pay maintenance of $250.00 for each child, commencing January 1, 1986 and continuing on the first day of each succeeding month for so long as each child remains a child within the meaning of the Divorce Act. 2. that the respondent shall pay the applicant the sum of $74,620.00 with interest on the unpaid amounts from today's date at the rate of 5% per annum, as follows: (a) 5,000.00 on January 15, 1986 (b) 5,000.00 on March 31, 1986 (c) $13,000.00 on November 30, 1986 (d) $13,000.00 on May 31, 1987 (e) $13,000.00 on November 30, 1987 (f) $13,000.00 on May 31, 1988 and (g) the balance plus accrued interest on November 30, 1988. Payment of the sum of $74,620.00 plus interest thereon shall be secured by a charge upon the folowing lands: The North West Quarter of Section Twenty-two (22) in Township Thirty-two (32), in Range Three (3), West of the Third Meridian, in the Province of Saskatchewan, in the Dominion of Canada, containing One Hundred and Sixty (160) acres, more or less. MINERALS IN THE CROWN. and The South East Quarter of Section Twenty-eight (28) in Township Thirtytwo (32), in Range Three (3), West of the Third Meridian, in the Province of Saskatchewan, in the Dominion of Canada, containing One Hundred and Sixty (160) acres, more or less. MINERALS IN THE CROWN. Should periodic payment of the said sum be in arrears for more than 30 consecutive days, the remaining sum owing shall become immediately due and payable and in such even the applicant shall have leave to apply for an order of judicial sale of the said land to satisfy payment of the remaining sum. 3. The applicant shall recover her costs of $500.00 and the respondent shall pay her an additional sum of $512.50 to cover one-half the cost of appraising the real property. 4. The lis pendens registered as item 84-S-26535 shall be vacated.

Division of matrimonial property. Husband owned farm land at the time of the marriage. During the marriage he spent heavily on booze and drugs. Wife spent her savings and employment income on the farming operation and family expenses. Held: Inequitable and unfair to exempt value of farm land from matrimonial assets. Equal division ordered, to be paid in installments secured against the land. Husband ordered to pay maintenance for support of the children.

8_1986canlii706.txt

J. THE COURT OF APPEAL FOR SASKATCHEWAN HER MAJESTY THE QUEEN CORAM: The Honourable Mr. Justice Cameron The Honourable Mr. Justice Lane The Honourable Madam Justice Jackson COUNSEL: D. SZAKACS for the respondent, D.M. BROWN Q.C., for the Crown. DISPOSITION: Appeal Heard: February 24, 1995 Appeal Allowed: February 24, 1995 (oral) Reasons: March 1, 1995 On Appeal From: Provincial Court Appeal File: 6491 Reasons by: The Honourable Madam Justice Jackson In concurrence: The Honourable Mr. Justice Cameron and The Honourable Mr. Justice Lane JACKSON J.A. The Crown appealed the disposition imposed on B.D.L., a young offender, following his guilty plea to four Criminal Code offences. The four offences were: (i) escaping lawful custody, contrary to s. 145(1)(a); (ii) stealing property valued at more than $1,000, contrary to s. 334(a); (iii) dangerous driving, contrary to s. 249(1)(a); and (iv) possession of stolen property valued at more than $1,000, contrary to s. 355(a). For these offences, B.D.L. received, in total, a five months closed custody disposition on October 17, 1994 concurrent to a nine month open custody disposition previously imposed on September 17, 1994. Shortly after B.D.L. started to serve his nine month open custody disposition, he escaped custody. He, along with another young offender, took truck from the parking lot of residence in Indian Head. police officer saw them in this stolen vehicle in the early hours of October 9, 1994. When the police officer tried to stop them, they accelerated away and police chase began. After speeding, including turning corners at high speeds, B.D.L. and the other young offender fled on foot when the truck they were driving hit the side of an attached garage. On October 11, 1994, another police officer found B.D.L. in another stolen vehicle the steering column of which had been dismantled. B.D.L. was raised by his maternal aunt following the early death of his parents. Since April 14, 1993, he has been involved in series of offences. His record includes one count of sexual assault, five counts of theft or possession of stolen property and four counts of failure to comply or to appear. All offences committed after the first set of charges have also been in breach of probation. B.D.L. turned 18 on October 13, 1994. We are all of the view, having regard for the age of the offender, his previous record and the nature of the offences committed, notably the escape custody and dangerous driving, that a five month secure custody disposition, concurrent to an existing disposition, was not fit. In arriving at this conclusion we have considered our decisions in R. v. Shane B. (unreported, issued December 6, 1994, court file nos. 6436, 6411, 6372 and 6427) and R. v. M.(J.C.) (unreported, issued December 6, 1994, court file no. 6451). Accordingly, the disposition of five months is set aside and one year secure custody, again concurrent to the nine month open custody sentence, substituted. We note B.D.L. has made some progress in secure custody, but, given its recent nature, it is better tested in review process at later date than by us at this time.

The accused, a young offender, was convicted of escaping lawful custody, theft of property valued in excess $1,000.00, dangerous driving and being in possession of stolen property. A Provincial Court Judge sentenced him to 5 months closed custody concurrent with a sentence of 9 months open custody which he was serving at the time of his escape. The Crown appealed. HELD: Appeal allowed. 1)The accused had a lengthy record as a young offender and turned 18 two days after the commission of the last of the offences for which he was being sentenced. 2)The Court substituted a sentence of 12 months closed custody, concurrent with the 9 months open custody which he was already serving.

b_1995canlii3936.txt

1996 S.H. No. 132494 IN THE SUPREME COURT OF NOVA SCOTIA BETWEEN: HAZMASTERS ENVIRONMENTAL EQUIPMENT INC., body corporate, and LONDON GUARANTEE, body corporate Defendant 1996 S.H. No. 140468 IN THE SUPREME COURT OF NOVA SCOTIA BETWEEN: HAZMASTERS ENVIRONMENTAL EQUIPMENT INC., body corporate, and­ RIDEAU CONSTRUCTION INC., body corporate, DECISION HEARD: Before the Honourable Justice H.S. Nathanson on December 15, 1997, at Halifax, Nova Scotia DECISION: December 30, 1997 COUNSEL: Erroll G. Treslan, Esq., counsel for the plaintiff John Kulik, Esq., counsel for the defendants NATHANSON, J. After a sub-contractor failed to complete its contract work, a supplier of materials to the sub-contractor sued the general contractor and the surety under the terms of a Labour and Material Payment Bond for payment of a balance owing to it by the sub-contractor. The Bond contains provision limiting the liability of the surety and the principal to make payment to any claimant not having contract directly with the principal. ISSUES The parties request the Court to adjudicate two issues, as follows: 1. Does the supplier of materials to the sub-contractor have any cause of action against the general contractor? 2. Is the supplier of materials to the sub-contractor entitled to recover against the surety under the Bond? FACTS On or about June 6, 1995, Rideau Construction entered into contract with Her Majesty the Queen in Right of Canada for the installation of an air conditioning system at the Air Terminal Building, Halifax International Airport, Elmsdale, Nova Scotia. As condition of the contract, Rideau Construction was required to provide Labour and Materials Payment Bond. London Guarantee issued Bond No. 113814 in which Rideau Construction, the general contractor, was named as principal, and London Guarantee was named as surety. The Bond includes provision limiting the liability of the surety and the principal, as follows: (4) For the purpose of this Bond the liability of the Surety and the Principal to make payment to any claimant not having contract directly with the Principal shall be limited to that amount which the Principal would have been obliged to such claimant had the provisions of the applicable provincial or territorial legislation on lien or privileges been applicable to the work. (emphasis added) Rideau Construction arranged with All Ports Insulation and Asbestos Services Inc. to supply labour and materials for the contract work. Although Rideau Construction sent form of subcontract to All Ports, no formal sub-contract document was ever executed. The value of the sub-contract, inclusive of change orders, was $648,547.19. Between December 4, 1995, and March 11, 1996, Hazmasters supplied materials to All Ports in relation to the subcontract. As of the latter date, there remained owing by All Ports to Hazmasters the sum of $18,174.44. This sum is still unpaid. Prior to May 31, 1996, Rideau Construction approved progress claims and extras from All Ports having total value of $277,665.07, from which holdback of $27,766.50 was retained. In July, All Ports defaulted under the terms of the subcontract by failing to complete its work and abandoning the job site. At the time (and shortly thereafter), All Ports submitted the following progress claims to Rideau: May 31, 1996 35,921.83 July 10, 1996 4,912.16 July 11, 1996 1,388.48 July 12, 1996 2,983.59 TOTAL: 45,206.06 On July 5, Hazmasters submitted claim for payment under the terms of the Bond in the amount of $18,174.44. It also notified Rideau Construction of its intention to claim under the Bond. On or about July 16, London Guarantee requested particulars of Hazmasters' claim. On July 17, Jim Brennan, who apparently was Operations Manager of Rideau Construction faxed to Brian Strawn, of Hazmasters, the following handwritten memo: Brian: Further to our conversation earlier today, Rideau Construction Inc. will issue payment direct to Hazmasters in the amount of $18,174.44 from Allports account. We will require complete .backup of these charges and upon receipt of that we will issue cheque. Jim On the same date, Hazmasters provided Rideau Construction with full particulars of its claim. It says that it relied upon the assurance of Rideau Construction that its claim would be paid, and therefore did not immediately provide particulars of its claim to London Guarantee. On or about July 26, Rideau Construction was served by Revenue Canada with Requirement to Pay up to $136,446.89 on account of All Ports' liability under subsection 227(10.1) of the Income Tax Act. On or about August 2, Rideau Construction received demand from the Director of Labour Standards for Nova Scotia requiring Rideau Construction to pay to the Province of Nova Scotia any amount it owed to All Ports up to maximum of $12,000. Rideau Construction arranged for the completion of the All Ports sub-contract. Both parties agree that the amount of the theoretical mechanics' lien fund which would have been available to subcontractors of All Ports (such as Hazmasters) if the Mechanics' Lien Act, R.S.N.S. 1989, c. 277 had applied to the project, would have been less than the amount of the demands made by Revenue Canada and Labour Standards as against Rideau Construction. The mechanics' lien fund would have consisted of the greater of: (a) any amount owed by Rideau Construction to All Ports; or (b) the holdback fund (being 10 of the value of the work completed by All Ports at the time All Ports abandoned its work under the subcontract). On or about August 19, Hazmasters provided particulars of its claim to London Guarantee. On August 21, Rideau Construction requested Public Works Government Services Canada for permission to pay directly to suppliers and labourers for All Ports any funds that remained after All Ports' contract work was completed. On the same date, Rideau Construction wrote to both Revenue Canada and the Labour Standards Tribunal advising that there was no money payable to All Ports as of that date. On September 10, counsel for London Guarantee wrote to counsel for Hazmasters stating that, at that time, there was no money owing by Rideau Construction to All Ports. While it is common ground that Hazmasters comes within the definition of "claimant" set out in the Bond, this letter, in effect, denies liability based on the limitation of liability set out in clause (4) of the Bond. Issue No. 1: Does the supplier of materials to the sub-contractor have any cause of action against the general contractor? It is common ground that there was no formal, written contract in existence between Rideau Construction and Hazmasters for the supply of materials and services. However, it is submitted on behalf of Hazmasters that the memo faxed by Rideau Construction to Hazmasters on July 17, 1996, contained binding promise to pay and, therefore, constituted contract. However, I find no intention to contract, no valuable consideration, and no promise to pay. The informality of the handwritten memo, from Jim to Brian, containing no words of explicit promise, belie an intention to bind commercial corporation such as Rideau Construction. There is no indication of something of value passing from Hazmasters to Rideau Construction at the same time; Hazmasters submitted that Rideau Construction benefitted by the claim not being brought to the attention of London Guarantee and by the fact that Rideau Construction acquired the opportunity of seeing Hazmasters' prices, but there is nothing in evidence to establish that these were of benefit to Rideau Construction and, in any event, such alleged benefits did not coincide with the sending of the faxed memo. There was no valuable consideration. Finally, Rideau Construction's statement that it would pay "from Allports account" is not promise to pay, but is merely statement or condition that any payment made would be paid out of any money which remained owing by Rideau Construction to All Ports after the contract work was completed. Hazmasters also submitted that the fact that it desisted from immediately pusuing its rights under the Bond constituted sufficient consideration to support Rideau Construction's alleged promise to pay. detriment can be good consideration for contract, but not where reliance to one's detriment was not sought, and not where there there was no promise that was capable of being relied upon so that, therefore, any alleged reliance to one's detriment was unreasonable. There was no contract. In the absence of contract, Hazmasters, the supplier of materials to All Ports, does not have cause of action against Rideau Construction, the general contractor. Issue No. 2: Is the supplier of materials to the sub-contractor entitled to recover against the surety under the Bond? Paragraph 4 of the Labour & Material Payment Bond limits the liability of the surety and the principal to make payment to a claimant such as Hazmasters not having a contract directly with the principal. Liability is limited to the amount which the Principal would have been obliged to pay to the claimant if the provisions of the Mechanics\' Lien Act, R.S.N.S. 1989, c.277, applied to the work. The work referred to in paragraph 4 of the Bond is that which is the subject matter of the contract between the Crown and Rideau Construction. By virtue of s.14 of the Interpretation Act, R.S.N.S. 1989, c.235, no enactment is binding on the Crown unless it expressly states that the Crown is bound. The Mechanics\' Lien Act does not expressly state that it binds the Crown. Therefore, the Act does not apply to this contract or this work. In this regard, see Canadian National Railway Co. v. Corrosion Services Co. et al (1991), 1991 CanLII 8220 (NS CA), 81 D.L.R. (4th) 158 (N.S.S.C.A.D.). Therefore, the issue resolves itself into this question: If the Mechanics' Lien Act did apply, what amount would Rideau Construction be obliged to pay to Hazmasters? Section 12 of that Act establishes that the maximum amount claimable by person other than the contractor is the amount owing to the contractor. Section 13(2) establishes the requirement of holdback of 10% of the value of the work, services and materials actually done, placed or furnished. Thus, the maximum amount of the lien fund available to subcontractors is the greater of the amount owing by the contractor to its subcontractor or the 10% holdback. It is submitted on behalf of the defendants that section 5.5(b) of the subcontract between Rideau Construction and All Ports provides that, if All Ports abandons its contract work, Rideau Construction may withhold payments until the subcontract is finished and that would necessarily include determination of the cost of completion. That submission is not accepted because this sub-contract was never executed. If the Mechanics' Lien Act applied, the amount available to all subcontractors of All Ports would have been 10% of the value of the work performed by All Ports to the date of abandonment. In an action by subcontractor under the Act, Rideau Construction would not be permitted to set off its claim against All Ports from this amount. That amount must be available for the subcontractors of All Ports unless some other party had prior claim to the holdback fund. Dias v. MacLean (1993), 10 C.L.R. (2d) 178 (N.S.S.C.) is authority for the proposition that third party claims from Revenue Canada take priority over claims of mechanics' lien claimants to holdback. Therefore, if the Mechanics' Lien Act applied in this case, the third party claims from Revenue Canada and the Province of Nova Scotia would take priority over the claims of the subcontractors of All Ports. Since those third party claims total an amount greater than the amount of the holdback, potential lien claimants such as Hazmasters would not be entitled to recover any amount from Rideau Construction. The only authority cited with respect to the purpose and effect of Clause (4) of the Bond is Johnson Controls Ltd. et al v. Dineen Construction (Atlantic) Inc. et al (1996), 1996 CanLII 10616 (NS SC), 157 N.S.R. (2d) 350 (S.C.) which considered provision of Bond identical to that in the present case. Davison, J. held that there was no priority in the particular circumstances and, therefore, subcontractors were entitled to have their claims paid. However, he considered the issue of priorities before determining if payment must be made under the Bond, and clearly found that the issue of priorities was not irrelevant but must be carefully considered. The purpose of paragraph of the Bond is to put subcontractors in the same position they would have been in if the Mechanics' Lien Act had been applicable. However, Hazmasters wants to be put in better position in that it seeks to recover under the Bond even though it would not have been able to recover had the Act applied. It is submitted on behalf of Hazmasters that the statutory liens should not be taken into consideration in considering what amount the principal would have been obliged to pay if the provisions of the Mechanics' Lien Act had been applicable. If the statutory liens were omitted from consideration, as they should be because they are not explicitly mentioned in paragraph of the Bond, there would be more than enough money available to pay Hazmasters' claim. Counsel for Hazmasters had not cited any authority for this submission. It is further submitted on behalf of Hazmasters that the position of London Guarantee is based upon three assumptions, each of which is disputed. First, it assumes that calculation of the theoretical mechanics' lien liability must include consideration of potential liabilities of the principal to third parties falling outside the definition of "claimant" under the Bond. Counsel for London Guarantee says that Rideau Construction was entitled to offset the cost of completion against the holdback and any excess over the holdback being held and, in this regard, cites Macklem and Bristow, Construction Builders' and Mechanics' Liens in Canada (6th edition) Vol. 1, p.4-14, and the many decided cases cited there. Second, it assumes that calculation of the theoretical mechanics' lien liability must be made after Rideau's receipt of the statutory liens; however, the Bond is silent as to what date the obligation to pay is to be calculated. Counsel for London Guarantee says that surety must have sufficient time to investigate claim, ascertain whether there are other claimants and the amounts of their claims, and decide what amount it should pay into court; until then, it cannot pay particular claim. Third, it assumes that the existence of statutory liens can be used to afford an exclusion under the Bond even where the statutory liens have not been satisfied; here, London Guarantee is relying on the statutory liens to avoid paying under the Bond while, at the same time, resists paying the statutory liens on the basis that there is no money owing to All Ports until such time as it completed the All Ports' subcontract. Hazmasters relies on the authority of ICI Paints Inc. v. Canadian Surety Co. (1992), 1992 CanLII 2518 (NS CA), 116 N.S.R. (2d) 385 (S.C.A.D.) as support for the general proposition that recovery under Payment Bond should be allowed where the terms of the Bond are unambiguous and reasonably unstrained interpretation will permit such recovery. Counsel for London Guarantee says that, if the Act applied, Rideau Construction would be required to retain the holdback established by that Act: Construction Builders' and Mechanics' Liens in Canada, supra, Vol. 2, pp.4-13. Finally, the case of ICI Paints Inc. v. Canadian Surety Co. deals with different fact situation and the interpretation of different wording and, as such, it has no application to the present case. accept the submissions on behalf of London Guarantee. In the result, if the Mechanics\' Lien Act had been applicable, Hazmasters would not have been entitled to recover anything due to the third party statutory liens. DISPOSITION The claims of Hazmasters against Rideau Construction and London Guarantee are both dismissed. Ordinarily, costs follow the event. However, it is submitted on behalf of Hazmasters that this case raises novel point for which there is no authority and, therefore, costs ought not be awarded against it. This submission is not accepted. There is sufficient authority to enable reasonable opinion as to the probable outcome of Hazmasters' claims. Portions of its submissions appeared to be strained. Also, counsel for Hazmasters failed to agree upon the inclusion in an Agreed Statement of Facts of two facts with respect to which, in cross-examination, the only witness called on behalf of Hazmasters acknowledged he had no evidence in contradiction. Therefore, Hazmasters will pay the costs of Rideau Construction and London Guarantee which, because they are represented by the same counsel, will be single amount as may be agreed upon between counsel or, if agreement is not possible, will be set by the Court at the time an Order for Judgment is taken out. J. Halifax, N.S.

After a sub-contractor failed to complete its contract work, the plaintiff, a supplier of materials to the sub-contractor sued the general contractor and the surety under the terms of a labour and Material Payment Bond for payment of a balance owing to it by the sub-contractor. The Bond contained a provision limiting the liability of the surety and the principal to make payment to any claimant not having a contract directly with the principal. Dismissing the action with costs, that there was no evidence of intention to contract, valuable consideration, or binding promise to pay between the general contractor and the supplier. With respect to the principal, as the Bond limits the liability of the surety and principal to make payment to a claimant such as the plaintiff not having a contract directly with the principal, liability is limited by the Bond to the amount which the principal would have been obliged to pay to the plaintiff if the provisions of the Mechanics' Lien Act applied to the work. As the contract was with the Crown, and the Act is not binding on the Crown, the general contractor was not obliged to pay anything to the plaintiff. Therefore, the supplier was not entitled to recover against the surety under the Bond.

1997canlii787.txt

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2010 SKCA 52 Date: 20100406 Between: Docket: 1851 Richard Howard Williams and Shelley Rose Williams Coram: Cameron, Vancise and Smith JJ.A. Counsel: Richard Howard Williams on his own behalf Terrance Graf, Q.C. for the Respondent Appeal: From: 2009 SKQB 357 (CanLII) Heard: April 6, 2010 Disposition: Appeal allowed Written Reasons: April 14, 2010 By: The Honourable Madam Justice Smith In Concurrence: The Honourable Mr. Justice Cameron The Honourable Mr. Justice Vancise Smith J.A. [1] This appeal from a spousal support order was allowed orally from the bench for the reasons herein set out. [2] On May 21, 2008, Ottenbreit J., as he then was, issued judgment after trial in relation to petition by the respondent for division of matrimonial property and spousal maintenance. (2008 SKQB 222 (CanLII)) The parties had separated in 2003 after 24 years of marriage following two years of cohabitation. At the time of the judgment, the appellant was 60 years old and the respondent was 53. They had two adult children, born in 1984 and 1989 respectively. These children had continued to live with the appellant after the parties’ separation and the younger, Catherine, was full time student. The appellant had assumed substantial portion of her support. [3] Both parties had some health problems. The respondent testified that she had been diagnosed with breast cancer in 2005 and had had surgery followed up by radiation. She also had shingles and an attack in the nature of stroke in March 2006. The appellant suffers from Hepatitis C. After the separation, the respondent had worked at Safeway, but took buyout of her pension and job in February 2006 in exchange for $35,000. Although the respondent was no longer on any medication at the time of trial except for sleep and antidepressant medication, she testified that she was not capable of full time employment and testified that she was disabled and did not know when she would be well enough to work 40 hours per week. She had taken vocational training course for computers and reflexology course since separation, had earned $45,073 in 2006 (including $15,000 attributed to the Safeway buyout), $23,084 in 2005, $18,275 in 2004 and $24,795 in 2003. At the time of trial she was receiving social assistance in the sum of $14,000 annually. [4] In relation to the issue of spousal support, Ottenbreit J. said this: [54] Shelley claims spousal support retroactive to May 2007. Richard’s 2007 income appears to be $30,000.00 based on P-8, Shelley’s exhibit. The factors to be considered when determining retroactive support are contained in Rimmer v. Adshead 2004 SKQB 536 (CanLII); (2005) 259 Sask. R. 161 per Dawson J. at paragraph 67. The parties except for the trust units, separated with an equal amount of matrimonial property. Catherine still lives with her father and is still going to school. The fact that Richard has had and still carries the burden of primarily maintaining Catherine in my view is also factor which militates against retroactive support. Shelley has substantial debt but she also owns and has had the ability to finance house since separation. She has greater capital than Richard at the moment. Given the circumstances it would be unfair to order retroactive maintenance. [58] Richard at this time earns more than Shelley gets on welfare. Shelley obviously has some skills but is not working. She is still feeling effects of her illnesses but could in my view do some part-time work. believe that based on her past experience she could do some work at food store. She has taken various courses which would lead to job. It may take her while to find suitable well paying full time employment. Shelley is still young woman and potentially has many years potential in the job market. The marriage was one of relatively long duration. believe Shelley has established need. Richard has an ability to pay. However his job history is not stellar and his income has fluctuated substantially. His ability to pay is modest based on his income and the fact that he is still supporting Catherine. Richard is nearing retirement and has serious although presently manageable illness. Given Richard’s financial track record and the fact that both parties have gone bankrupt twice Shelley would do well to become self-sufficient as soon as possible. Some spousal maintenance for short duration is however appropriate. I order Richard to pay Shelley $300.00 per month on the first day of each month commencing April 1, 2008 to and including March 1, 2009 based on his income of $30,000;00. Shelley shall have leave to have the court review this order after March 1, 2009 on seven days notice. [5] By notice of motion dated April 17, 2009, the respondent applied for review of Justice Ottenbreit’s order. By Fiat dated September 15, 2009, Sandomirsky J. ordered that the appellant pay the respondent spousal support of $600.00 per month. The order was permanent and no further review was fixed. He also ordered costs against the appellant in the amount of $750. The appeal is from this order. [6] The evidence before Sandomirsky J. established that during the year following the one year order of Ottenbreit J. the respondent had not engaged in any gainful employment at all. She had sold her house and used the proceeds to spend over four months out of Canada, living in Hawaii part of the time and spending month-long vacation in Jamaica. She paid for her adult children to visit her. Finally, on April 14, 2009, she commenced employment at Westfair Foods in probationary position. This was after the one year spousal maintenance order had expired and only few days prior to filing the application to review that order and to award to her substantial permanent spousal support. Prior to the hearing of her application, she lost this position and said in her affidavits, filed in support of the application, that she was “disabled and still receiving treatments”, that she was enrolled in legal assistant program, and that she had sought permanent full time employment since losing the Westfair Foods position, but had been unable to receive any offers of employment. She filed no medical evidence to indicate that she was unable to work and did not, in fact, say that she was unable to work. In fact, she indicated that she was seeking full time position. [7] The chambers judge imputed an income to the respondent of $14,289 based on the assumption that she was capable of working 30 hours week at minimum wage. He did not indicate why he did not find her capable of full time employment. He found the appellant’s income to be $38,964.37. This was an error, as it failed to take into account employment expenses of $8,822 allowed by Canada Revenue Agency and expressly found by the chambers judge to be reasonable. The proper income for the appellant was still in the neighbourhood of $30,000. He also still had the same medical issues and the couples’ daughter Catherine was still living with him and going to university full time. [8] The order of the chambers judge was based solely on calculation of the parties’ respective incomes, as found or imputed. The chambers judge discounted the relevance of the expenses of maintaining Catherine on the basis that she was over 18, without determining whether she was still a child of the marriage as a full time student. [9] In addition to the factual error or errors, it is our respectful view that the approach of Sandomirsky J. on a review of the issue of spousal support in light of the judgment of Ottenbreit J. was in error. It is clear that Ottenbreit J. set an order for fixed and short term in order to give the respondent an opportunity to find appropriate employment and become self sufficient. It is our view that, in this circumstance, it was incumbent on the respondent on the review application to establish that she was unable to become self sufficient. The evidence did not begin to establish that and, in fact, clearly showed that she had made no effort at all to do so within the year allocated by the Ottenbreit order and prior to the filing of the notice of motion, and little effort between that time and the hearing of the application. [10] The order of Sandomirsky J. is set aside, the respondent’s application for spousal support is dismissed and the order against the appellant for costs below is set aside.

The appellant contests an order for $600.00 monthly spousal support given by a Chambers judge on an application to review a previous order which granted the respondent $300.00 monthly spousal support for a period of 1 year. The parties were married for 24 years following a 2-year period of cohabitation. They have 2 adult children, one of which is largely supported by the appellant. Both parties have some health problems. Originally, the appellant was ordered to pay the respondent $300.00 in monthly spousal support for a period of 1 year. Given the appellant's health difficulties and the fact that he was nearing retirement, the trial judge noted that the respondent would do well to become self-sufficient as soon as possible. The Chambers judge who reviewed the original order found that, during the year period the respondent was collecting spousal support, she had not engaged in any gainful employment. She had sold her house and used the proceeds to spend over 4 months living in Hawaii and Jamaica. She obtained probationary employment just after filing a notice of motion but lost the job before the hearing commenced. HELD: The appeal is allowed, the orders of the Chambers judge for spousal support and costs against the appellant are set aside. The Chambers judge imputed an income of $14,289 to the respondent on the basis that she was capable of working 30 hours per week at minimum wage. He did not indicate why he did not find her capable of full time employment. The Chambers judge made an error in calculating the income of the appellant. He also discounted the expenses borne by the appellant in relation the maintenance of their adult child, who was a full-time student. It was incumbent on the respondent to establish that she was unable to become self-sufficient. The evidence did not begin to establish that and, in fact, clearly showed that she made little effort to do so within the year allocated by the trial judge.

d_2010skca52.txt

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2008 SKCA 28 Date: 20080204 Between: Docket: 1420 Kelly Foster and MFD Warehouse Restorations Ltd. Coram: Klebuc C.J.S., Richards and Wilkinson JJ.A. Counsel: Aaron M. Tetu for the Appellant Robert G. Kennedy, Q.C. for the Respondent Appeal: From: QBG 1738/2006, J.C. of Saskatoon Heard: February 4, 2008 Disposition: Appeal Dismissed (Orally) Written Reasons: February 29, 2008 By: The Honourable Madam Justice Wilkinson In Concurrence: The Honourable Chief Justice Klebuc The Honourable Mr. Justice Richards Wilkinson J.A. [1] On the hearing of this appeal, we dismissed the appeal with costs, with full reasons to follow. These are the reasons. [2] The appellant agreed to purchase two-storey condominium unit (Units and 6) from the respondent, developer. It was the only planned unit of its kind in downtown warehouse the developer proposed to convert to 26 unit condominium complex. Building permits had not been obtained, nor had condominium titles been raised, at the time the sale agreement was entered into. Schematics or drawings of the project were shown to the appellant at the time of sale. [3] In the course of construction, the respondent learned the two-storey design for the appellant’s unit would require significant and costly alterations to other areas of the building, particularly the lobby and stair-well, in order to make the project acceptable to the City of Saskatoon. The respondent opted not to proceed with the two-story unit, revising it instead to single story unit (Unit 5) which was then offered to the appellant at proportionately reduced price. The appellant did not accept the offer, and registered miscellaneous interest against the title to the entire parcel of land on which the subject warehouse stands. At the time of registration of the appellant’s interest, the condominium plan had not yet been approved. The respondent later sold Unit to third party. [4] The appellant sued for specific performance of the agreement and, in the alternative, damages. The developer succeeded in obtaining court order discharging the miscellaneous interest. [5] The Chambers judge framed the issues in this manner: The vendor is now arguing that the Court should discharge the interest the Purchaser had registered in the Land Titles Registry against its entire project for many reasons, however, primarily it argued that the Purchaser does not have an interest in the property he purchased pursuant to the Land Titles Act because he will never be successful in obtaining from this Court the remedy of specific performance. What the Purchaser purchased was two-storey unit which is not in existence now and never will be. As well, the one-storey unit which the Vendor offered to sell to the Purchaser instead of the two-storey unit has now been sold to someone else and thus not even that unit could be the subject of specific performance. The Court agrees. [6] The Chambers judge agreed with the argument advanced by the respondent that the appellant’s ultimate remedy should lie in damages, as opposed to specific performance, and urged the respondent to file its statement of defence and proceed to resolution without further delay. The order was immediately registered in January 2007, and the appellant’s miscellaneous interest was discharged from title. The appellant appealed. The condominium plan was registered in or around August 2007. Title to Unit was transferred to the third party purchaser on October 9, 2007. [7] Two grounds of appeal are raised: (1) That the Chambers judge erred in deciding specific performance could not be obtained by the appellant in the circumstances of this case. (2) That the Chambers judge erred in holding the agreement for the sale of the condominium unit was frustrated. [8] At the outset, counsel for the appellant confirmed that he was not seeking to restore the miscellaneous interest to the register. In light of subsequent developments and the transfer of Unit to another individual, he recognizes that is not an available remedy. At best, his objective in this appeal is to obtain ruling that the order discharging the miscellaneous interest was improperly granted, and if this Court agrees with his position, he intends to amend his claim to seek additional damages from the respondent, whether aggravated or punitive. [9] The respondent’s position is the same as it was in the proceedings below: that the appellant’s inchoate interest stands on different footing than an interest in pre-existing building or structure. The respondent argues that the nature of a proposed condominium unit prior to actual registration of the condominium plan is simply that of a chose-in- action, or a “design concept”, and cannot therefore constitute an “interest in land” capable of supporting the registration of a miscellaneous interest under The Land Titles Act, 2000. [1] The respondent says that as the right does not relate to tangible real property, or any notion of property over which possession could be exerted, it is right that can only be enforced by action, with the ultimate remedy sounding in damages, as the remedy of specific performance does not avail for non-existent thing. The respondent says specific performance is moot issue and the question is academic, however the appeal does raise an important issue which appears to be one of first impression in this Court. [10] The appellant replied that he was justified in registering his interest against all that the respondent owned, not merely the property which the parties anticipated the respondent would create in the future. He says he also possesses tangible interest in the common areas of the entire condominium complex, including the mezzanine area on top of the warehouse an area that, in the original design, was intended for conversion to the second story of the appellant’s condominium unit. Standard of Review [11] The Court’s jurisdiction to hear the appeal is found in s. 111 of The Land Titles Act, 2000: Appeal to Court of Appeal 111 The Registrar or any interested party may appeal decision or order of the court to the Court of Appeal, on question of law, within 30 days after the date of the decision or order. [12] The standard of review on appeal for questions of law is that of correctness: H.L. v. Canada (Attorney General).[2] The Appeal [13] Despite the manner in which the issues have been framed by the appellant, the preliminary question is whether the appellant possessed an “interest in land”. [14] The registration of miscellaneous interest is analogous to the registration of caveat protecting an interest under the former Land Titles Act.[3] Under that Act, the case law was well settled that an applicant seeking an order continuing caveat was required to establish that he or she had an interest in the land against which the caveat was registered. See: Meadow Lake Credit Union Ltd. v. Korejbo.[4] [15] developer of condominium has sometimes been compared to promoter of corporation. When units are sold in the conceptual stages of the project, the developer has the ability to describe the proposed residential condominium building and to pre-sell and pre-rent the proposed units prior to actual construction in some cases, even before obtaining the land itself. The purchaser pays deposit and condominium developer can generate revenues long before title is passed. condominium purchaser is often committed to the completion of the transaction at premature stage in the construction, without the ability to examine the building, when no certainty exists whether the transaction will be effectively completed. Where developer elects to market proposed units during the conceptual or design stage of project, purchaser often has no alternative but to place faith and confidence in the developer to carry out what it has undertaken to do, and to provide complete and accurate disclosure of all information about the project. The transaction of purchase and sale may never be completed. [16] These enumerable risks are all outlined in the decision of Winkler J. (as he then was) in Ceolaro v. York Humber Ltd.[5] Although the purchaser is at significant disadvantage, Justice Winkler observed at para. 192 of his decision that the condominium legislation establishes comprehensive scheme, and it is to the legislation that one must look for the clarification of foundational rights and remedies. The identification of an appropriate remedy in the context of dispute over yet to be constructed condominiums can prove difficult. See: Salna v. Lotfi-Noushad.[6] [17] As the Ontario Court of Appeal noted in Goetz, et al. v. Whitehall Development Corp. Ltd.[7] at p. 247: It is obvious that not every contemplated or projected condominium will achieve legal status by compliance with the Condominium Act and the Planning Act. Failure may be the result of any one of variety of external causes, e.g., disapproval by the appropriate governmental authorities; lack of sales resulting in the withdrawal of consent to registration by the mortgagee. The frustration of the sale of units in projected condominium is obviously real and foreseeable event. [18] The condominium is creature of statute. Under this province’s legislation, namely The Condominium Property Act, 1993,[8] the definition of “purchase agreement” differentiates between the purchase of “unit” and the purchase of “proposed unit”: 2(1) In this Act: (u) “purchase agreement” means an agreement with developer by which person purchases unit or proposed unit or acquires right to purchase unit or proposed unit; [19] The definitions of “condominium” and “condominium plan” are found in s. 2(1) of the Act: (i) “condominium” means the land included in condominium plan together with the buildings and units and the common property and common facilities belonging to them; (j) “condominium plan” means plan that: (i) is described in the heading of the plan as condominium plan; (ii) shows the whole or any part of the buildings and land included in the plan as being divided into two or more units; and (iii) meets the requirements of section 9; (bb) “unit” means: (i) in the case of building, space that is situated within the building and described as unit in condominium plan by reference to floors, walls or ceilings or other monuments as defined in The Land Surveys Act, 2000 within the building; and (ii) in any other case, land that is situated within parcel and described as unit in condominium plan by reference to boundaries governed by monuments placed pursuant to the provisions of The Land Surveys Act, 2000 and the regulations made pursuant to that Act respecting subdivision surveys; (cc) “unit factor” means the unit factor for unit as specified in the unit factor schedule described in clause 9(1)(e) or apportioned in accordance with subsection 25(3), as the case may be. (2) Except as otherwise provided in this Act or the regulations, the terms used in this Act have the meanings given to them in The Land Titles Act, 2000. [20] The Land Titles Act, 2000, by s. 2(1)(d) and (f), adopts the definition of “condominium plan” and “condominium unit” as defined in The Condominium Property Act, 1993. In addition, s. 2(1)(e) provides: (e) “condominium title”, with respect to the condominium unit for which the title has issued, means the right to: (i) an ownership share in the condominium unit; and (ii) share in the common property; [21] The relevant provisions of The Land Titles Act, 2000, with respect to the registration of an interest, are these: 2(1) In this Act: (s) “interest” means any right, interest or estate, whether legal or equitable, in, over or under land recognized at law that is less than title; (t) “interest holder” means person who is registered in the land titles registry as holder of an interest; (u) “land” means: (i) the surface; (ii) mines and minerals; and (iii) unless the context requires otherwise, the condominium units and common property included in condominium plan; Registrable interests 50(1) An application for registration of an interest may be submitted only if the interest, at the time of registration, is: (a) recognized at law as an interest in land; (b) registrable pursuant to any other Act or any Act of the Parliament of Canada; or (c) designated as registrable interest in the regulations. [Emphasis added] Effect of interest registration (4) No registration of an interest is effective if: (a) the application for registration of the interest was not eligible for submission pursuant to section 50; or (b) the instrument on which the interest is based was not executed before the interest was registered. [22] The definition of “land” in s. 2(1)(u)(iii) of The Land Titles Act, 2000 precludes purchaser of proposed condominium unit from possessing an “interest in land” until condominium plan, within the definition of The Condominium Property Act, 1993, comes into existence. [23] Section 50 of The Land Titles Act, 2000 recognizes three grounds for asserting an “interest”. The third ground has no application here as the interest in issue is not designated as registrable interest in the regulations. It remains only to consider whether the purchaser has an interest in the “surface” pursuant to The Condominium Property Act, 1993 for the purposes of s. 50(1)(b), since condominium is not an interest “at law”, but statutory creation. [24] The Condominium Property Act, 1993 is specific as to remedy and selective as to the nature and kind of “interests” capable of registration. With respect to “purchase agreements” as defined by the Act, the only prescribed remedies available to purchaser of “proposed unit” who has not achieved the status of registered owner is: (1) to obtain rescission of the purchase agreement pursuant to s. 26(2) of the Act within the prescribed period of ten days from signing, and the right to have all monies paid thereunder returned; or (2) in certain circumstances, to assert claim against any security the developer is required to post with the Minister in compliance with ss. 5.2 and 16 of the Act, and Part of The Condominium Property Regulations, 2001,[9] as condition of securing approval of the condominium plan. [25] The Act does contain number of provisions concerning interests that are considered to be registrable interests. One example can be found in s. 63 whereby the condominium corporation can maintain registered interest for arrears of owner’s contributions; another, in s. 71.1 which provides that lease of all or part of common property is registrable interest. And, of course, once title to condominium unit issues pursuant to the Act, the title may devolve or be transferred, leased, mortgaged or otherwise dealt with in the same manner as any title held pursuant to The Land Titles Act, 2000, as prescribed in s. 5(3) of the Act. However, before condominium plan as defined in The Condominium Property Act, 1993 comes into being, there is nothing in the Act which directly or inferentially entertains the prospect that purchase of “proposed unit” can constitute an interest in land, or registrable interest for the purposes of s. 50 of The Land Titles Act, 2000. [26] The Act expressly prohibits the registration of any charge against the common property. The appellant is not entitled to rest his claim to a registrable interest in the surface parcel on the basis of a notional claim to rights in “common property”. Common property, by definition, does not come into existence until the condominium plan comes into effect. In The Condominium Property Act, 1993, these provisions are material: 2(1)(h) “common property” means the part of the land and buildings included in condominium plan that is not included in any unit shown in the condominium plan; Common property 6(1) The common property included in condominium plan pursuant to which titles have issued is held by the owners of all the units as tenants in common in shares proportional to the unit factors for their respective units. (2) share in the common property mentioned in subsection (1) shall be shown on any title issued, in accordance with subsection 12(6) of The Land Titles Act, 2000. (3) Except as provided in this Act, share in the common property shall not be disposed of or become subject to any charge except as belonging to the unit of an owner, and any disposition of or charge on unit operates to dispose of or charge that share in the common property without express reference to it. [Emphasis added] [27] For the purposes of s. 50 of The Land Titles Act, 2000, then, the appellant had no basis in law, or under The Condominium Property Act, 1993, for asserting an interest against the surface parcel owned by the respondent. [28] It is our conclusion that the Chambers judge did not err in the result as the appellant at no time possessed registrable interest in the surface parcel. It was unnecessary to address the issue whether specific performance was remedy available to the appellant. It should be noted that the respondent had not filed statement of defence at the time it made the application, and the issues lacked refinement. The determination of appropriate remedies was premature at that stage of the proceedings. [29] As to the second ground of appeal, we find nothing in the reasons of the Chambers judge which indicate that she in any way touched upon the substantive issue, namely the issue whether the purchase agreement was frustrated by supervening events. There is nothing in her order or her reasons, and nothing flowing from her decision that either expressly, or by necessary implication, disposes of that question. Without statement of defence, the issue of frustration was not before the Court in any event. The Chambers judge’s finding that the remedy of specific performance was not available did not constitute an adverse finding against the appellant on the issue of frustration. [30] For these reasons, the appeal is dismissed with costs. [1] S.S. 2000, c. L-5.1. [2] 2005 SCC 25 (CanLII), [2005] S.C.R. 401. [3] R.S.S. 1978, c. L-5. [4] (1988), 1988 CanLII 5194 (SK CA), 66 Sask. R. 191 (C.A.). [1994] O.J. No. 604 (Q.L.). [2006] O.J. No. 864; 2006 CarswellOnt. 1307 (Ont. Div. Ct.) varied at [2007] O.J. No. 1856, 2007 CarswellOnt 3007 (Ont. Div. Ct.). [7] (1978), 1978 CanLII 1466 (ON CA), 84 D.L.R. (3d) 243. [8] S.S. 1993, c. C-26.1. [9] R.R.S., c. C-26.1, Reg. (effective June 25, 2001).

The appellant agreed to buy a two-story condominium unit from the respondent developer. The building permit had not been obtained, nor had condominium titles been raised at the time the sale agreement was entered into. In the course of construction the respondent opted not to proceed with the two-story unit, revising it to a single story unit which was offered to the appellant. The appellant did not accept the offer, and registered a miscellaneous interest against the title to the entire parcel of land. The appellant sues for specific performance of the agreement and in the alternative, damages. The developer succeeded in obtaining a court order discharging the miscellaneous interest. The Court's jurisdiction to hear the appeal is found in s. 111 of The Land Titles Act, 2000. The issue is whether the appellant possessed an interest in land so as to support the registration of a miscellaneous interest. HELD: Appeal dismissed. 1) Before a condominium plan as defined in The Condominium Property Act, 1993 comes into being, there is nothing in the Act which directly or inferentially entertains the prospect that a purchase of a 'proposed unit' can constitute an interest in land, or a registrable interest for the purposes of s. 50 of The Land Titles Act, 2000. 2) The Act expressly prohibits the registration of any charge against the common property. The appellant is not entitled to rest his claim to a registrable interest in the surface parcel on the basis of a notional claim to rights in 'common property'. Common property, by definition, does not come into existence until the condominium plan comes into effect. 3) For the purposes of s. 50 of The Land Titles Act, 2000, the appellant had no basis in law, or under The Condominium Property Act, 1993 for asserting an interest against the surface parcel owned by the respondent.

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1990 1201‑43833 IN THE SUPREME COURT OF NOVA SCOTIA TRIAL DIVISION BETWEEN: Debbie A. Smith Petitioner/Applicant: and Peter Allan Smith Respondent HEARD: Before the Honourable Chief Justice Constance R. Glube, Trial Division in Chambers at Halifax, Nova Scotia, August 3, 1990. DATE: August 15, 1990 COUNSEL: Mark T. Knox, for the Petitioner/Applicant Katherine A. McDonald, for the Respondent 1990 1201‑43833 IN THE SUPREME COURT OF NOVA SCOTIA TRIAL DIVISION BETWEEN: Debbie A. Smith Petitioner/Applicant and Peter Allan Smith Respondent GLUBE, C.J.T.D.: This is an application by Debbie A. Smith for interim maintenance. The parties were married on April 9, 1983. Peter Smith left the matrimonial home in July of 1989. There are no children of the marriage. Ms. Smith has been employed at K‑Mart as clerk for fifteen years. Her income is $8.65 per hour for total of $950.00 per month. Mr. Smith is employed by Public Works Canada. His annual salary is $36,817.00. Due to unusual personnel circumstances, he worked considerable overtime in 1989 which brought his income up to $48,000.00. This overtime is non‑recurring event. Ms. Smith wishes to upgrade herself so that she can obtain more lucrative employment. Mr. Smith had concerns during the marriage that she was underpaid. She claims that during their marriage, she spent a lot of time under medical care in an effort to become pregnant. At the time of separation she was pregnant, however, she suffered miscarriage. She claims that it was agreed that if she had child, she would not continue her employment. Ms. Smith claims that she has some particular expenses occurring at this time. She wishes to enroll in Certified General Accounting Course, which may be obtained either through correspondence or at St. Mary's University and would take three to four years to complete. The cost at St. Mary's is $650.00 per year. She would continue her employment while taking the course. She claims that motor vehicle which .she received in the division of property has stopped working and is too costly to repair. She is looking to replace that motor vehicle. Also, that upon the sale of the matrimonial home she resided with relatives. She has now found accommodation for herself and her dog at monthly rental of $595.00. Ms. Smith, in her affidavit, recognizes that she is not entitled to maintenance indefinitely, but instead is seeking lump sum or periodic term of maintenance to allow her to upgrade her education so that she will become financially independent. She is seeking $500.00 month on an interim basis. Mr. Smith disputes her entitlement to any maintenance. He claims he has maintained her from the time of separation until the house was sold on July 19, by paying all the household expenses including light and power, totalling $16,135.00. Ms. Smith claims that out of some of these funds she paid some bills relating specifically to Mr. Smith. He claims she received $17,683.00 as her share of an equal division upon the sale of the matrimonial home and that this money should be invested to provide income. He submits that an award of interim maintenance should not be made on the facts before the court, as there was not time to present all the facts and there is serious question as to whether her inability to earn money can be attributed to her being married. He claims she is neither entitled to nor does she need interim maintenance. The court has the power to grant lump sum in lieu of or in addition to periodic sums on an interim basis (s.15(3) Divorce Act 1985). Section 15(5) of the Divorce Act sets out the factors to be considered by the court and s.15(7) sets out the objectives of support order. accept that there should be some causal connection between the applicant's need and the marriage or cohabitation period. The parties have very disparate incomes. After examining Mr. Smith's financial statement, it would appear that he could afford to pay interim maintenance. The question is whether or not Ms. Smith is entitled to receive any payment. On the one hand, thorough review of the facts is necessary to reach final conclusion as to whether or not Ms. Smith's economic disadvantage arises from breakdown of the marriage. On the other hand, promoting economic self‑sufficiency is another objective which the court will seek to effect even on an interim award. The factors to be considered are the means, needs and other circumstances of each spouse including the length of time the parties cohabited. The parties lived together as husband and wife for just over five years following the marriage, however, there was period of two additional years prior to marriage when the parties resided together as common law spouses. In my opinion, Ms. Smith should attempt to upgrade her education. agree it is doubtful that she will be entitled to maintenance for any lengthy period of time. In my opinion, it is inappropriate to award the requested amount of $500.00 month maintenance until this matter is resolved. propose to award nominal amount plus small lump sum with the understanding that the court could well take that into account if on the hearing of the divorce it is determined that Ms. Smith is entitled to periodic maintenance for period of time. Ms. Smith will no doubt have to invest her proceeds from the matrimonial home so that she receives monthly income. On an interim basis, she will probably not be able to afford to replace her car. To move matters along towards the goal of financial independence and considering the means, and needs, and circumstances of each spouse, acknowledging that this may not be the basis for a lump sum or monthly periodic maintenance being made at the time the divorce is heard, I find there is some causal relationship between Ms. Smith\'s attempts to become pregnant and the fact that she did not upgrade her education during the marriage. I award the sum of $100.00 per month interim maintenance. The first payment is payable immediately, and thereafter on the first day of each month until final determination is made. In addition, award the sum of $650.00 to be made to Ms. Smith upon her producing statement from the Registrar of St. Mary's University or such other body providing correspondence course for Certified General Accounting showing that she has enrolled and has been accepted in course to commence in the fall of 1990. urge the parties to proceed to trial with the issue of maintenance at the earliest opportunity, particularly as this appears to be the only outstanding issue. Constance R. Glube Halifax, Nova Scotia August 15, 1990 1990 1101‑43838 IN THE SUPREME COURT OF NOVA SCOTIA TRIAL DIVISION BETWEEN: Debbie Smith Petitioner/ and Peter Allan Smith Respondent DECISION OF GLUBE, C.J.T.D.

Where the petitioner demonstrated that she did not upgrade her education during the marriage as a result of her attempts to become pregnant and thus there was a causal connection between the petitioner's need and the marriage, interim maintenance in the amount of $100 per month was ordered , having regard to the means, needs and circumstances of each spouse.

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nan 1999 SKQB 150 Q.B.G. A.D. 1999 No. 232 J.C.B. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF BATTLEFORD BETWEEN: GILBERT ROUSSEAU personally, and GILBERT ROUSSEAU and GAIL ROUSSEAU as litigation guardians for the minor, RENÉ and GAIL ROUSSEAU and KORY (ROUSSEAU) DUTTON, PROPOSED PLAINTIFFS (APPLICANTS) and THE CITY OF NORTH BATTLEFORD DEFENDANT (RESPONDENT) T.E. Roberts for the proposed plaintiff G.D. Heinrichs, Q.C. for the defendant FIAT LAING J. October 26, 1999 [1] This application by the proposed plaintiffs is sequel to an earlier fiat rendered by Smith J. on June 1, 1999 with respect to an application by the defendant to set aside proposed amendments to the original statement of claim and the joinder of parties to that claim. In the end result Smith J. found the proposed amendments as they related to the original plaintiff Gilbert Rousseau did not require court ordered leave to amend, and found that the infant, René Rousseau, could be joined as plaintiff to the action on the basis she was an infant against whom the limitation period of one year set out in The Urban Municipality Act, 1984, S.S. 1983-84, c. U-11, as amended, had not yet commenced to run. With respect to the proposed plaintiffs, Gail Rousseau in her personal capacity and Kory (Rousseau) Dutton, Smith J. held that the amendments as they related to these two persons did assert new causes of action, and as on its face the one-year limitation period contained in s. 314(1)(a) of The Urban Municipality Act had intervened, such amendments could only be considered pursuant to an application under s. 44(11) of The Queen’s Bench Act, R.S.S. 1978, c. Q-1, as amended. This is such application. [2] The defendant resists the joinder of the new plaintiffs and the amendments to the statement of claim on the basis of undue delay on the part of the proposed plaintiffs and actual prejudice to the defendant. For the reasons which follow the defendant is not successful and the application is allowed. [3] The statement of claim issued by Gilbert Rousseau against the City of North Battleford is dated October 3, 1996. In it he alleged nuisance and in the alternative negligence on the part of the defendant City with respect to the design, construction, and maintenance of its sanitary sewer system which the statement of claim alleges caused “. the basement of the plaintiff’s home to flood, and resulted in damage to his dwelling and to personal belongings located in the dwelling.” (para. 5) The statement of claim went on to say in para. 10, “As result of the said back up and flooding, the plaintiff has suffered loss and damage in the following amounts: (a) to his premises $5,826.94; (b) to his contents $13,101.29 .”. The defendant did not file statement of defence to this claim, nor did it file an intent to defend. The reasons it did not are not disclosed in the material. [4] In December 1998 and January 1999, notice of change of solicitors to the present solicitors, notice of intent to proceed, and the amended statement of claim was served on the solicitor for the defendant City. The amended claim sought to join the persons referred to above, and the amendments consisted of: (1) adding to para. 10 subparas. (c) and (d) as follows: (c) to the cost of replacing the basement and to the cost of repairing his residence: $55,723.83 (d) for the cost of alternate accommodations and incidentals during the period of repair 9,230.00 New para. 11 contained the following amendment: 11. As result of the said back up and flooding, the Plaintiffs, Gilbert Rousseau, Gail Rousseau, René Rousseau and Kory (Rousseau) Dutton have suffered loss and general damages for: (a) the loss of the use and enjoyment of this residence; (b) the diminished living conditions caused by the damage to the residence; and (c) mental distress. The defendant filed notice of intent to defend dated March 23, 1999, and thereafter brought the motion resulting in the fiat of June 1, 1999. The Defendant’s Position [5] The defendant applied for leave to appeal the fiat of June 1, 1999 to the Court of Appeal which leave was denied orally from the Bench. Defence counsel states that during argument, Justice of the Court of Appeal noted that the amendments to the pleadings which had been made without order did not preclude the defendant from pleading limitation period defence with respect to such amendments if so advised. Counsel for the defendant states he intends to do so. On this application defence counsel makes the point that this Court should treat the application to join Gail Rousseau and Kory (Rousseau) Dutton together with the amendments that apply to them as if the earlier order had not been made. The defendant’s position in this respect is accepted. To do otherwise would be to prejudge the limitation defence the defendant seeks to advance with respect to the amendments brought by Gilbert Rousseau which are not before the Court on this application. [6] Section 44(11) of The Queen’s Bench Act sets out two statutory requirements for the exercise of Chambers judge discretion with respect to the adding of parties or the adding of new claim where limitation period has intervened since the commencement of the action. The requirements are as stated by Sherstobitoff J.A. in Stockbrugger Estate v. Wolfe Estate et al. (1987), 1987 CanLII 4901 (SK CA), 59 Sask. R. 96 (C.A.), at pp. 98-99, wherein he stated: nan The new onus on the applicant is: (1) to show that the claim asserted by the amendment or by or against the new party arose out of the same transaction or occurrence as the original claim; (2) to satisfy the court that no party will suffer “actual prejudice” as result of the enactment. Sherstobitoff J.A. went on to state at p. 99: the judge under the new enactment has an unfettered (original emphasis) discretion to grant the application once the twofold threshold onus is met. He is constrained by only one rule: he must exercise that unfettered discretion judicially. [7] The claim asserted by the new parties, Gail Rousseau and Kory (Rousseau) Dutton, and the amendments they seek to the statement of claim as set out in the foregoing clearly arise out of the same occurrence as the original claim. Defence counsel does not dispute this. His position is that his client will suffer actual prejudice if the amendments are allowed. [8] The applicants submit in their affidavit material that Gail Rousseau is and has been joint owner of the residential property which is the subject of the action since 1990 when they purchased the premises. They state that the damage to their home and their health was not readily ascertainable at the time of the initial claim, and they only became aware of additional structural problems and possible health problems over period of time. This prompted them to commission geotechnical and structural engineering report dated January 8, 1998, and report from the Battlefords Health District, Public Health Inspector, dated October 19, 1998. These reports have been provided to the solicitor for the defendants, and are the basis for the requested amendments. [9] The prejudice alleged by the defendant is set out in the affidavit of the City Commissioner for the defendant. He states that during the period from October 3, 1996 when the original claim was issued and December 7, 1998 when the City was served with the amended claim, the City did not receive notice of any ongoing problems with the plaintiff’s property. He states that had the City received such notice, it would have investigated, and possibly taken steps to minimize any damage discovered. He further states that evidence has been lost because the City was not given the opportunity to inspect the causes of any alleged damage as it developed, and it may now be too late to determine the causes. [10] As a starting point, the limitation period in s. 314(1) applies from the time when the damages were sustained, not from the date of the occurrence which led to the damage. Section 314(1) states as follows: 314(1)(a) No action is to be brought against an urban municipality for the recovery of damages: (a) after the expiration of one year from the time when the damages were sustained, and no such action is to be continued unless service of the statement of claim is made within that one-year period. As pointed out per Wilson J. in Kamloops v. Nielsen, 1984 CanLII 21 (SCC), [1984] W.W.R. (S.C.C.), at 48: It seems to me that it is now settled, at least in England, that the defendant’s negligence has to have manifested itself in the shape of physical damage to the property, e.g., cracks or subsidence, before time starts to run for limitation purposes. It is vital, therefore, that the trial judge make finding as to when this occurred. nan The court in the foregoing case went on to adopt the discoverability rule, but did not negate the foregoing minimum requirement. The foregoing is mentioned simply to point out that on the material filed, it is not possible to determine when the additional damage claimed manifested itself, but presumably it is after the date of the issuance of the statement of claim on October 3, 1996. Likewise, the material does not indicate when the applicants should have discovered the additional damage. If it is the date of January 8, 1998, when the applicants received the geotechnical and structural engineering report, the amended claim was brought within the one-year limitation period. The foregoing is pointed out simply to emphasize that on the facts of this case it is not certain. [11] The foregoing uncertainty as to when the limitation period actually commenced running with respect to the amended claim is a factor to be taken into account with respect to the defence position of inexcusable delay and actual prejudice. The material filed does not establish inexcusable delay. [12] The defendant’s claim that it has suffered actual prejudice is not accepted. It is worth noting that the general limitation period contained in The Limitation of Actions Act, R.S.S. 1978, c. L-15, for injury to real property arising from negligence is six years (s. 3(1)(e)(i)). When the general legislation contemplates defendants having to investigate claim with respect to real property up to six years after the limitation period has commenced to run, it is difficult to conclude that when the delay is maximum of little over three years as in this case (October 23, 1995 December 7, 1998) defendant could experience actual legal prejudice in the absence of unusual circumstances that are not present in this case. Furthermore, on the facts of this case the defendant had very timely notice, and the fact it chose not to investigate or communicate with the plaintiff following service of the statement of claim is not the fault of the plaintiffs. If it was prejudiced, it was through its own inaction. To the extent it pleads it did not know that damages would increase, the same argument is available to the applicants. [13] The defendant is now in a position to conduct an investigation with respect to the amended claim, and it has the benefit of the reports provided to it by the applicants. No evidence has been lost. The basement is available for inspection. Any consultant hired by the defendant is in an equally good position to investigate as was the applicants’ consultant, and to offer an opinion on cause and remedy. [14] On the basis of the foregoing, the applicants have met the requirements of s. 44(11) of The Queen’s Bench Act. As there is no legal impediment to making the amendments requested, I consider it an appropriate exercise of judicial discretion to allow the amendments requested. [15] Gail Rousseau is a joint owner of the property and should have been included as a plaintiff at the time the original action was commenced. The fact she was not appears to have arisen from inadvertence rather than any deliberate choice made at the time. Her joinder as party in this fact situation is contemplated by the Rules (Rule 38(1)) and normally would not be contested. The material filed indicates the expanded claim alleged in the requested amendments was not apparent at the time the original claim was issued, and arises out of the same occurrence. Allowing the amendments with respect to Gail Rousseau accords with the functional approach to the amendment of pleadings originally articulated by Professor Watson in his article, “The Amendment Proceedings After Expiry After Limitation Periods” (1975), 53 Canadian Bar Review 237, portions of which article are extensively reproduced in Budget Rent Car of Edmonton Ltd. v. University of Toronto et al. (1991), 116 A.R. 33 (Q.B.) (Vide also: Pike v. Pemberton Securities Inc., 1997 CanLII 14845 (AB QB), [1998] W.W.R. 361 (Alta. Q.B.) at 373 et seq.). Allowing the amendments with respect to Gail Rousseau also makes it appropriate to join Kory (Rousseau) Dutton as a party. [16] The amendments to the claim joining Gail Rousseau and Kory (Rousseau) Dutton as parties to the action, and the amendments set out in paras. 10, 11 and 12 of the amended statement of claim are allowed. [17] The costs of this application are costs in the cause. [18] Order accordingly.

FIAT. It was held in an earlier fiat in June that the addition of the two proposed plaintiffs asserted new causes of action and amendments to the statement of claim could only be considered pursuant to an application under s.44(11) of the Queen's Bench Act. The defendant resisted the joinder of the new plaintiffs and amendments on the basis of undue delay and actual prejudice. The statement of claim alleged nuisance, and in the alternative, negligence against the City with respect to the design, construction and maintenance of the sewer system causing his basement to flood. The plaintiffs stated they only became aware of the damage to their home and possible health problems over period of time. Leave to appeal the June fiat was denied. The defendant plead limitation period defence to the amendment and argued that if the City had received notice of any ongoing problems it would have investigated and possibly taken steps to minimize any damage; that evidence had been lost; it may be too late to determine the causes. HELD: The amendments were allowed. 1)The limitation period in s.314(1) applies from the time damages were sustained, not from the date of the occurrence which led to the damage. The facts were uncertain. It was uncertain when the limitation period commenced. If the date the applicant should have discovered the additional damage was the date they received the geotechnical and structural engineering report, the amended claim was brought within the 1 year limitation period. 2)Inexcusable delay was not established. 3)It was not accepted that the defendant suffered actual prejudice. If it was prejudiced it was through its own inaction. No evidence had been lost. The basement was available for inspection. It had the benefit of the reports provided by the applicants. 4)The requirements of s.44(11) were met and judicial discretion was exercised to allow the amendments. The fact that the joint owner of the property was not included was due to inadvertence rather than any deliberate choice. It was also appropriate to join the new plaintiff. It appeared that the expanded claim alleged in the requested amendment was not apparent at the time the original claim was issued and arose out of the same occurrence. 4)Costs in the cause.

e_1999skqb150.txt

nan 1995 S.B. No.3341 IN THE SUPREME COURT OF NOVA SCOTIA ALLEN WADE SPIDELL and HER MAJESTY THE QUEEN DECISION BEFORE: THE HONOURABLE JUSTICE HIRAM J. CARVER BRIEFS FILED: APPELLANT'S BRIEF BY DECEMBER 31, 1995 RESPONDENT'S BRIEF BY JANUARY 15, 1996 REPLY BY JANUARY 29, 1996 WRITTEN DECISION: FEBRUARY 16, 1996 CHARGE: SECTION 254(5) C.C.C. COUNSEL: MARK DEMPSEY, FOR THE APPELLANT; ANTHONY W. BROWN, FOR THE RESPONDENT. This is an appeal by the appellant, Allen Wade Spidell, against a decision of The Honourable Judge Anne E. Crawford dated October 24, 1995 wherein she convicted the appellant of an offence that: "At or near Auburndale, in the County of Lunenburg, Province of Nova Scotia, did unlawfully, without reasonable excuse, refuse to comply with the demand made to him by Constable Gary Jonathan White, Peace Officer, to provide then or as soon thereafter as is practicable, samples of his blood as in the opinion of qualified medical practitioner were necessary to enable proper analysis to be made, in order to determine the concentration, if any, of alcohol in his blood, contrary to Section 254(5) of the Criminal Code of Canada." FACTS: On February 13, 1995 at approximately 4:00 p.m. the appellant went to the Emergency Department of the South Shore Regional Hospital for treatment for injuries received in single motor vehicle accident earlier that day. Dr. Kydd met the appellant at approximately 4:15 p.m. while he was reclining in one of the observation beds. At this time through questioning the appellant told Dr. Kydd he had been drinking and that he had been in motor vehicle accident which had occurred one half to one hour prior to being in the Emergency Department. Dr. Kydd had asked him if he had been drinking and when the accident had happened as this information might be important to the treatment or any prescription he might give. At this point, Dr. Kydd reported the accident to the R.C.M.P. because he felt he was obliged to report accidents that had not been reported. Mr. Spidell had not been prior patient of Dr. Kydd. When Constable White arrived at the hospital in response to the telephone call, Dr. Kydd informed him the appellant had told him he had been drinking, the accident had not previously been reported and that the accident had occurred half hour to one hour prior to Dr Kydd seeing him. Dr. Kydd also told Constable White he had noted Mr. Spidell stagger when he came to the hospital. Constable White then met with Mr. Spidell and having formed the opinion Mr. Spidell's ability to operate motor vehicle was impaired by alcohol, Constable White then read demand for blood sample to Mr. Spidell. Mr. Spidell made no reply. Dr. Kydd attempted to take blood sample from the appellant. At this point the appellant refused to give sample and asked to contact Mr. Dempsey. He was advised Mr. Dempsey was away for couple of days. When he was advised there were two other lawyers available in Mr. Dempsey's stead he decided not to speak to them. At this time he refused to supply sample of blood. He was then charged with refusal under S.254(2) of the Criminal Code. Upon the request of the police officers, Dr. Kydd later prepared written summary of the events in outpatients and mailed it to their office. Dr. Kydd had not obtained the consent of the appellant to release to the police this or any other information mentioned above. It is to be noted that the written summary did not form an essential or any part of this case of refusal. ISSUES: Did the trial judge err when she found the appellant's rights under Section7 and 8 of the Charter had not been breached? The trial judge, after reviewing R. v. Dersh 1993 CanLII 32 (SCC), [1993] S.C.R. 768, 85 C.C.C. (3d)1, 25 C.R. (4th) 88, 48 M.V.R. (2d) 161 found the information which Dr. Kydd had obtained was gathered solely for medical purposes and that he was not, up to that time, an agent of the state. She therefore concluded, following Dersh supra Dr. Kydd's actions were not subject to the Charter. She then went on to comment: "However, unlike Dersh and Dyment 1988 CanLII 10 (SCC), [1988] S.C.R. 417, 45 C.C.C. (3d) 244, 66 C.R. (3d) 348, the present case does not involve seizure of bodily substances, even by analogy. The police required no warrant to act upon the information they received from Dr. Kydd, whether or not Dr. Kydd was right to give it. therefore find that in the present case the police officer acting upon the information provided to him by Dr. Kydd did not violate the defendant's s.8 Charter right." This case is substantially different from the case of Dersh, supra, even if one accepts Dr. Kydd may have breached his duty of confidentiality to his patient. have some concern whether in fact in this case Dr. Kydd breached his duty of confidentiality. In the present case, Dr. Kydd phoned the police and gave them certain information. It was upon this information the officer formed his grounds for giving the blood demand which formed the essence of this charge of refusal. The police had not been in contact with the appellant before they received the information from Dr. Kydd. Dr. Kydd was at no time when he called the police acting as their agent, nor did they request anything of him before the demand and the refusal. In the Dersh case, supra after being involved in an accident on October 7, 1987 when the accused was taken to the hospital, blood sample was taken by the doctor for medical purposes while the accused was unconscious, contrary to an explicit refusal by the accused to provide blood sample under any circumstances. In that case, the police officer who had accompanied the accused to the hospital had asked him to provide blood sample. This request was refused. In response to written request by police, the doctor prepared medical report on October 30, 1987. That report included the results of the blood alcohol tests from the first blood sample and diagnosis the appellant was intoxicated at the time of being treated in the emergency department. Justice Major held the provision to the police by Dr. Gilbert of specific medical information about the appellant without his consent violated Dr. Gilbert's common law duty of confidentiality to the appellant. He went on to hold the obtaining of that information by the police in the circumstances of that case was analogous to search and seizure within the meaning of Section of the Charter. It is here where the difference arises between this case and Dersh supra. Here, the obtaining of the information from Dr. Kydd as the basis of formulating the demand is not analogous to a search and seizure within the meaning of Section 8 of the Charter. In Dersh there were actions analogous to search and seizure. I therefore find the trial judge did not err when she found the appellant's rights under Section 8 of the Charter were not violated. I also find the trial judge did not err when she found the appellant's right under Section 7 were not violated. I therefore dismiss the appeal. direct the appellant pay costs to the Crown in the amount of $300.00 by paying same to the Clerk of the Crown on or before March 1, 1996.

This was an appeal from a trial court decision questioning whether the trial judge erred in determining that the appellant's rights under s.7 and s.8 of the Charter had not been violated. When man involved in an accident checked himself into hospital, the attending physician informed the RCMP of the accident and an RCMP officer came to the hospital. As the appellant had indicated to the physician that he had been drinking, the RCMP constable read demand for blood sample, which the attending physician attempted to obtain. The appellant refused and asked to speak to his lawyer. Unable to contact lawyer, the appellant refused to supply blood sample and was charged with refusal under s. 254(2) of the Criminal Code. The trial judge had held that as the physician attempted to obtain sample for medical purposes, he was not acting in the capacity of agent of the state, and his actions were not subject to the Charter. Dismissing the appeal, that while there may have been some issues of breach of confidentiality, the physician's actions were not analogous to search and seizure within s.8 of the Charter. The trial judge did not err in determining that the appellant's rights were not violated under either s.7 or s.8 of the Charter.

e_1996canlii5466.txt

Q.B. A.D. 1996 No. 2118 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 SEPTEMBER 24, 1996 ORDER OF THE JOINT MEDICAL PROFESSIONAL REVIEW COMMITTEE and IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW OF SEPTEMBER 24, 1996 ORDER OF THE JOINT MEDICAL PROFESSIONAL REVIEW COMMITTEE BETWEEN: CARLOS HUERTO APPLICANT (APPELLANT) and THE MINISTER OF HEALTH, THE DIRECTOR OF PROFESSIONAL REVIEW AND THE JOINT MEDICAL PROFESSIONAL REVIEW COMMITTEE RESPONDENTS (RESPONDENTS) Brian J. Scherman and David G. Gerecke for Dr. Huerto Murray J. Hinds for the respondents JUDGMENT BAYNTON J. June 2, 1998 Summary of the Issues and the Proceedings [1] Dr. Huerto, a cardiologist, appeals an order madeagainst him by the Joint Medical Professional Review Committee(the "Committee") that he repay $207,821.03 in medical fees hereceived over a fifteen month period from the Medical CareInsurance Branch (the "MCIB"). The appeal is brought under s. 49.21(1) of The Saskatchewan Medical Care Insurance Act, R.S.S. 1978, c. S-29 (the "Act"). The statistics generated by MCIB illustrate that Dr. Huerto's cost per patient is dramatically higher than that of the group mean comprised of his fourteen cardiologist peers. Dr. Huerto challenges the reliability of these statistics as fair and meaningful indicator of comparative patient costs. [2] Dr. Huerto also applies under Part 52 of the Rulesof Court for a judicial review of the proceedings. Two issues are raised for review. The first is whether there is areasonable apprehension of bias raised by the involvement ofthe Director of Professional Review in the hearing conductedby the Committee. The second is whether there is a reasonableapprehension of institutional bias raised by the roles of theDirector and the Committee assigned to them by the Act. The notice of appeal was subsequently amended to include these judicial review issues. [3] Dr. Huerto was previously the subject of competency review ordered by the College of Physicians and Surgeons and was found to be competent to conduct cardiology practice. The Committee in its decision acknowledged that Dr. Huerto is competent cardiologist and that the standards of patient care aspect of his practice is not an issue in these proceedings. What is in issue is the economic aspect of his practice. The Committee is mandated under the Act to determine whether Dr. Huerto's pattern of medical practice is acceptable to it considering that his billings to medicare is out of line with the billings to medicare by the other cardiologists in Saskatchewan. [4] One of the primary questions the Committee had to consider was whether the MCIB comparative billing statistics should be adjusted to take into account that all costs associated with Dr. Huerto's patients are reflected in his medicare billings while this is not the case with the patient costs associated with the other cardiologists. Dr. Huerto does not have hospital privileges so he treats his patients at his own clinic. He has equipped and staffed it so that it is equivalent to coronary care unit in hospital. The other cardiologists treat many of their patients in hospital. The consequence of this distinction is that if all the costs incurred during the hospitalization of patients of the other cardiologists are included in the comparative statistics, Dr. Huerto's patient costs are less than those of the group mean. [5] The legislative objective of the professional review provided for in The Saskatchewan Medical Care Insurance Act is to impose some controls and limits on the liability of the public purse to pay billings by care providers (in this case medical doctors) for services to their patients (in this case cardiac patients). Even though the ultimate goal of the provision of medical services is to provide quality patient care, the depth of the public purse is not unlimited. Unless such care is provided in cost effective manner the demands on the public purse will become unacceptable. Accordingly the economics of providing quality patient care is the primary issue to be determined by professional review. [6] But the statistics generated by MCIB which trigger the professional review reflect only the medicare billings associated with cardiac patients. It is only these costs that show up in the comparative cost per patient statistics. Medicare costs however are but one side of the coin. Hospitalization costs are the other. The public purse must ultimately pay for both medicare and hospitalization costs involved in the care and treatment of cardiac patient. With this in mind, any review to determine if there has been departure from an acceptable pattern of medical practice appears to be fundamentally flawed if it considers only medicare patient costs without corresponding consideration of hospital costs. The problem is that apparently reliable data is not available to enable hospital costs to be included in the comparative statistics generated by MCIB. [7] The hearing appealed from was conducted in stages over period of four months from February to May 1996. The proceedings generated hundreds of pages of transcript, volumes of exhibits, and lengthy written decision. The appeal briefs address each ground of appeal and are also lengthy. have concluded that one ground of the appeal has merit and that the order appealed from should be varied. The judicial review application has no merit. The Specific Grounds of Appeal [8] The appellant has raised numerous grounds of appeal. In view of my conclusions it has been necessary to deal with each of them. They are summarized as follows: 1. The rules of natural justice werebreached in the following ways: a. The Committee failed to provide adequate reasons for its b. The Committee heard and relied on evidence outside the presence of the appellant, and it refused to advise the appellant of such c. The involvement of the Director with the Committee before and during the hearing and in its deliberations raised reasonable apprehension of bias; d. The lack of institutionalindependence of the Committeefrom the Director and MCIBraised a reasonable apprehensionof institutional bias. 2. The Committee made the followingerrors of law:a. By improperly placing the burdenof proof on Dr. Huerto;b. By failing to take into accountall relevant factors in:i. Ignoring the statisticalanalysis presented onbehalf of Dr. Huerto thatwas more reliable than thestatistical analysispresented by MCIB;ii. Considering as beyond itsmandate Dr. Huerto\'ssubmission that he wasproviding cost effectiveservices in keepingpatients out of hospital;c. By using and relying on theknowledge of the members of theCommittee in preference to theuncontroverted expert evidence. 3. The orders made by the Committeeconcerning the various medicalservices were not reasonablysupported by the evidence before it. The Unique Aspects of Dr. Huerto's Pattern of Medical Practice [9] Dr. Huerto has been medical doctor for thirty years and for over half of that time has been authorized to practice cardiology and internal medicine. He taught for time at the College of Medicine in Saskatoon. Since 1989 he has practised primarily as cardiologist from his own clinic in Saskatoon. His practice is unique from that of the other cardiologists in Saskatchewan in three aspects. The first is that he does not have hospital privileges. He has attempted to reduce the limits this places on him by developing clinic with staff and diagnostic equipment that is equivalent to cardiac care unit in the hospital. Many of the tests routinely conducted by other cardiologists on cardiac patients in the hospital are not reflected in MCIB's comparative statistics. All the tests conducted by Dr. Huerto in his clinic are reflected in MCIB's comparative statistics. The significance of this distinction is that the comparative statistics artificially understate the ratio of diagnostic tests done per patient by the group mean. [10] second aspect of Dr. Huerto's practice that is unique is that he orders more diagnostic tests on his patients and does more follow up on them himself than do other cardiologists. Most cardiologists tend to refer patients back to their respective family doctors for follow up. Dr. Huerto maintains that cardiac patients are better served if it is the cardiologist rather than the family doctor who does the follow up. He says that this cannot be done safely or effectively without the results of contemporary testing. He submits that prevention, education and holistic approach is required to effectively treat cardiac patients. He has staffed his clinic with critical care nurses to assist him in this regard. This difference in pattern of cardiology practice results in higher ratio of repeat patients of Dr. Huerto than that of the group [11] third aspect of Dr. Huerto's practice that is unique is his extended office hours and the availability of his clinic to his patients at any hour of the day or week. He and his head nurse testified that he is in his clinic 15 hours per day (4:30 a.m. to 7:30 p.m.). The evidence establishes that in many instances, particularly on week-ends, the patients of other cardiologists are referred to the emergency department of hospital. These patients are usually hospitalized and treated in the cardiac care unit, often by another doctor or cardiologist. This difference in pattern of cardiology practice eliminates the significant costs that would otherwise be incurred if Dr. Huerto's patients were hospitalized and tested in the hospital in the same fashion as the patients of other cardiologists. Because these hospitalization costs are not reflected or accounted for in the MCIB statistics for billings by cardiologists, these cost savings respecting Dr. Huerto's patients are not offset against his other higher costs per patient that are reflected in the comparative statistics. The Events Leading to these Proceedings [12] As mentioned previously, the MCIB statistics on medicare billings ("insured services") for the 15-month period September 22, 1992 to December 29, 1993, illustrate marked departure of Dr. Huerto's medicare billings from those of the other cardiologists comprising the group mean. These statistics were referred by the Director of Professional Review (the "Director") to previously appointed Joint Medical Professional Review Committee ("JMPRC") which met on February 11 and 12, 1994 to consider the data package which also included comparative statistics for prior period extending from March 28, 1987 to September 24, 1990. Dr. Huerto was notified on March 30, 1994 by the previous JMPRC that his billing pattern was under review and that the JMPRC had concerns about his billing pattern as compared to the group mean of other specialists in internal medicine and cardiology. The concerns were (a) the high rate of contacts per patient, and (b) the high costs per patient contributed to by high rate of partial and major assessments, diagnostic tests, and first-patient seen surcharges. [13] The previous JMPRC selected twenty of Dr. Huerto's patient files for review. Dr. Huerto made written submissions on each of them after being granted three extensions to do so. The previous JMPRC decided to meet with Dr. Huerto to discuss the files. Dr. Huerto then brought successful application to disqualify the previous JMPRC due to reasonable apprehension of bias respecting the involvement of one of its members in prior proceeding against Dr. Huerto by the College of Physicians and Surgeons. new JMPRC (the Committee whose decision is now the subject of this appeal and judicial review) was formed consisting of eight general practitioners from Regina. No cardiologist was placed on the Committee due to the objection of Dr. Huerto that all cardiologists in Saskatchewan were biased against him. The Committee reviewed the twenty files and also questioned him extensively about thirteen of the files during the hearing. The Committee rendered its decision in September 1996. The appeal and judicial review application did not come on for hearing until this year. [14] The statistical package presented by MCIB for the period in issue show that Dr. Huerto's comparisons to the group mean are as follows: Cost per patient 706% Number of major assessments 250% Number of other assessments 1,174% Rate of consultations 415% Patient load (discrete patients) 30% Initial patient surcharges 660% Dr. Huerto was paid $679,947, group mean $484,946. The difference in payment to Dr. Huerto and the group mean was $272,126. The total amount ordered by the Committee to be repaid by Dr. Huerto was $207,821. [15] In response to the statistical package, Dr. Huerto prepared his own package of statistics and spreadsheets with various adjustments made to compare "apples to apples". Dr. Huerto maintains that unless such adjustments are made to the MCIB statistics, they compare "apples to oranges" and do not accurately or fairly provide realistic assessment of his patient costs reflected in his pattern of billings compared to the cardiologists comprising the group mean. The adjustments made by Dr. Huerto to the statistical comparison take into account the unique aspects of his practice outlined previously. They are an attempt to compare the total costs of Dr. Huerto's patients to the total costs of patients of the other cardiologists comprising the group mean. His statistics show that he compares very favourably to the group mean and that his cost per patient is far below the group mean. [16] In general terms the first set of adjustments "back out" the costs of those kinds of diagnostic tests done by Dr. Huerto in his clinic that would routinely be conducted at hospital on patients of the other cardiologists comprising the group mean and that would accordingly not be reflected in their billings for insured services. As Dr. Huerto has no hospital privileges, any diagnostic tests done by him are done at his clinic and are reflected in his billings for insured services. The second set of adjustments "attribute" to the patients of the other cardiologists comprising the group mean, the costs associated with the hospitalization of such patients during treatment. As Dr. Huerto's clinic is equivalent to coronary care unit in hospital, he treats his patients at his clinic rather than in the hospital. Very few of his patients are referred by him to another cardiologist for treatment in hospital. The cost of treating cardiac patient on an outpatient basis is substantially less than the cost of treatment in the hospital. The third set of adjustments is to "back out" discrete patients (i.e. those actually not seen by the other cardiologists comprising the group mean). The hospitalization adjustment component is the most controversial aspect of the comparative statistics generated by Dr. Huerto. [17] Although not strictly relevant, it is evident that Dr. Huerto's net income is likely less than that of his peers. The costs of operating his clinic include the acquisition and maintenance of expensive diagnostic equipment and the provision of highly trained support staff. These costs are payable by Dr. Huerto out of the billings he receives from MCIB. Dr. Huerto's financial position at the current time is particularly critical in that deductions are being made by MCIB to recover previous repayment order of approximately $385,000 for prior period. Dr. Huerto claims he is left with no personal income once he has paid for the operating costs of his clinic. As well, the costs of certain tests and services rendered to patients by Dr. Huerto are routinely not charged to either MCIB or his patients to avoid complications with MCIB. These include certain precautionary diagnostic tests, certain drugs that can be obtained at no patient expense only in hospital, the provision to his patients of the services of dietician and social worker, and the like. The Testimony Supporting Dr. Huerto's Position [18] Dr. Hughes, specialist in internal medicine and cardiology from Ontario, testified on behalf of Dr. Huerto. Dr. Hughes operates busy cardiology practice and holds executive positions in the Ontario Medical Association and the Ontario Association of Cardiologists. His own billings had previously been reviewed in Ontario due to his variance with the group mean, but the reviewing committee made no order for repayment. It should be pointed out however that Dr. Hughes has far greater patient load than does Dr. Huerto. Dr. Hughes stated that it was far more cost effective to treat cardiac patients on an outpatient basis than to treat them in hospital. He claims this pattern of practice is now becoming the trend. It is how he has conducted his practice in Ontario for some time. He stated that the patients of most cardiologists are still treated in hospital unlike his own patients and those of Dr. Huerto. He observed that each of Dr. Huerto's patients making up the twenty profiles would have been hospitalized at some time had they been treated in the usual fashion by another cardiologist. In his opinion, the follow up of cardiac patients by cardiologist was in most cases preferable to follow up by general practitioner. [19] Dr. Hughes visited Dr. Huerto's clinic to observe its operation. He also reviewed the twenty patient files available to the Committee. He concluded that each of those patients were in need of cardiac care and that Dr. Huerto's treatment of them was appropriate. Although Dr. Huerto utilized multiple testing to compensate for his lack of hospital privileges, the up-to-date information provided by multiple testing is particularly helpful in treating cardiac patients. From his observations he concluded that Dr. Huerto was conducting competent cardiology practice in well equipped and staffed clinic which afforded his patients with level of care comparative to hospital care. Dr. Huerto's pattern of medical practice, including his follow up and multiple testing of cardiac patients, was medically and economically appropriate. Dr. Hughes was strongly of the view that reliable cost of patient care comparisons cannot be made on the basis of medicare billings alone. Hospitalization costs must be factored in as well. [20] Dr. Atkinson, an anaesthesiologist from Ontario who discontinued his practice five years ago to provide consulting services on the economics of health care, testified on Dr. Huerto's behalf. Dr. Atkinson is former Chief of Medical Staff at the Ottawa Civic Hospital, position he held for eight years. He currently holds executive positions with the Ontario Commission on Health Facilities and the Canadian Institute for Health Information. He has recently conducted reviews and made reorganization proposals respecting the hospitals in Edmonton, Saskatoon, and Regina. He testified that the current trend in the provision of medical care is to use hospitals less and to use outpatient facilities more. greater emphasis is also being placed on prevention. He was of the opinion that these trends will save significant costs without triggering any corresponding reduction in the quality of health care. [21] Dr. Atkinson testified that the cost for the hospitalization of patient in Saskatoon is $622 per day. The cost of cardiac patient, based on the national average, is approximately 25% higher, for total estimated cost of $777 per day. Dr. Atkinson is not cardiologist and accordingly he was not able to give an opinion on whether the pattern of medical practice utilized by Dr. Huerto was appropriate. Dr. Atkinson agreed with Dr. Hughes however that the methodology utilized by Dr. Huerto in the statistical package he presented to the Committee was appropriate from patient cost comparison perspective. [22] Dr. Diaz, general practitioner in Saskatoon with experience in critical care, testified that she routinely referred patients to Dr. Huerto with excellent results. She chose him primarily because of his availability on short notice at any hour, and because of the personal interest he took in his patients. She stated that in her experience most patients referred to other cardiologists, especially on week- ends and after hours, were hospitalized for several days for diagnostic tests. Due to the sophistication of Dr. Huerto's clinic, he was able to diagnose and treat almost all of his patients without the necessity of hospitalization. Some of the patients he has taken on used to be hospitalized routinely before they were referred to him but are no longer treated in hospital because of the care they receive at his clinic. Although she has been divorced from Dr. Huerto since 1986, she continues to refer most of her patients to him. [23] Professor Heaslip, an associate professor of nursing at the University of Saskatchewan, testified on behalf of Dr. Huerto. Professor Heaslip is critical care nurse with 25 years of experience. She is former Director of each of the intensive care unit and the coronary care unit at the Royal University Hospital. Through her students she maintains contact with the hospital and staff. She works part time in Dr. Huerto's clinic managing his staff, doing his accounting and managing patients who would otherwise go to the emergency department of hospital and be admitted. She testified that Dr. Huerto's clinic is of standard equivalent to the coronary care unit at the Royal University Hospital. She referred to the opinion letter of Dr. David Johnson, the Director of the adult critical care unit at the Royal University Hospital, to the same effect. Dr. Johnson had previously evaluated Dr. Huerto's clinic, its policies, procedures, and management of patients. [24] In preparation for the hearing, Dr. Heaslip recruited the services of three critical care nurses at the Royal University Hospital to independently review the patient profiles set out in the twenty files reviewed by the Committee. She and the other nurses concluded unanimously that patients with the symptoms exhibited in the profiles were the kind of patients they would see routinely in the emergency department or the coronary care unit at the hospital. They agreed with Dr. Huerto's estimates of the number of times his patients would have been admitted to hospital had his clinic not been available to them. They felt however that he had underestimated the duration of the perspective periods of hospitalization. [25] One of Dr. Huerto's patients testified on his behalf. She stated that since she has been treated by Dr. Huerto, she has stayed out of the hospital and has experienced significant improvement in her health and ability to function normally. [26] Dr. Huerto also testified on his own behalf and gave detailed explanations to questions from the Committee respecting most of the 20 files reviewed by it. [27] All of the evidence presented on behalf of Dr. Huerto was uncontroverted with one possible exception. negative assessment of Dr. Huerto's practice was made by Dr. Sommerville, now deceased, in correspondence with the College of Physicians and Surgeons. Although this correspondence was referred to in the respondents' legal brief, am not certain that it was placed before the Committee. In any event, it has not changed my decision. will go on to review it in the event it was considered by the Committee. The Potential Sommerville Evidence [28] Dr. Sommerville had been appointed by the College to supervise Dr. Huerto's practice for the last four months of the period under review. His role was entirely different than that of the Committee in the review proceedings before me. He was cardiologist however and his opinions would constitute relevant evidence that could be considered by the Committee. But because of his death he could not be witness at the review hearings nor could he be cross-examined by Dr. Huerto on his comments and assessments contained in his correspondence. [29] Dr. Sommerville stated in his correspondence to the College that the patients seen by Dr. Huerto were the same type of patients that are seen by cardiologists on an out- patient basis without the requirement of hospitalization. In his opinion, Dr. Huerto had usurped the role of primary care physician by departing from the normal role of consultant and referral specialist who manages patients in conjunction with the respective family physicians. Dr. Sommerville's opinion was that Dr. Huerto had high incidence of surcharging resulting from patient convenience or demand rather than medical necessity, and that his pattern of medical practice was self-chosen with little clinical judgment being made respecting the necessity for diagnostic tests. He viewed Dr. Huerto's style of practice as highly lucrative one that involved few referrals, frequent follow-ups, low patient load, and different perception of what constituted an emergent situation. The Reasonable Apprehension of Bias Evidence [30] In response to Dr. Huerto's allegations of reasonable apprehension of bias, the chairman of the Committee filed an affidavit setting out the involvement of the Director in the affairs of the Committee. As mentioned previously, the Committee was struck to replace the former JMPRC. As none of the members of the Committee had served on JMPRC before, the Director met with the Committee to explain the procedure utilized by previous committees. After this initial meeting, the Committee sought the guidance of the Director from time to time on matters of procedure but made its own decision on what procedure it would eventually follow. The Director was present throughout the hearing and sat beside the chairman. From time to time the Director asked few questions to clarify and explain matters arising out of the statistical packages presented. He did not however, contrary to what was alleged by Dr. Huerto, take part in any deliberations of the Committee, nor did the Committee consider any information that was not put before it during the hearing and in the presence of Dr. Huerto or his counsel. The Law and Analysis [31] As an appeal under the Act is an appeal on the record, the judicial review application was brought to enable the court to consider evidence which did not form part of the record and avoid the issue that arose in Ramsahoi v. Saskatchewan (Minister of Health) et al. (1990), 85 Sask. R. 42 (Q.B.) at pp. 46-47. [32] Osborn J. in Appavoo v. Saskatchewan (Minister of Health) et al. (1995), 1995 CanLII 5625 (SK QB), 127 Sask. R. 34 (Q.B.), at pp. 36-37 reviews the case law and summarizes the nature of statutory appeal from an order of Joint Medical Professional Review Committee: Pursuant to s. 49.21(1) of the Saskatchewan Medical Care Insurance Act, this court has jurisdiction to (a) affirm or vary the Committee's orders appealed from; (b) refer the matter back to the Committee with directions to reconsider it; or (c) quash the Committee's orders and substitute orders that it thinks the Committee ought to have made. The authorities have identified four circumstances in which an appeal of this nature might succeed: (a) if the Committee proceeded without jurisdiction or exceeded its jurisdiction; (b) if it did not observe rules of natural justice; (c) if it made an error of law; and (d) if the evidence does not reasonably support the Committee's findings. See: Ramsahoi v. Saskatchewan (Minister of Health) et al. (1990), 1990 CanLII 7328 (SK QB), 85 Sask. R. 42 (Q.B.); Barber v. Saskatchewan (Minister of Health) et al., (1991), 1991 CanLII 7644 (SK QB), 94 Sask. R. 37 (Q.B.); Malhotra v. The Joint Medical Professional Review Committee, (January 22, 1992, Q.B. No. 981 of 1990, Sask. Q.B., unreported); Huerto v. Saskatchewan (Minister of Health) et al., (1994), 124 Sask. R. 121 (Q.B.). Pursuant to s. 49.21(2) of the Saskatchewan Medical Care Insurance Act, this court is restricted to considering only the record of the proceedings of the Committee. When assessing the four criteria identified above, this court, as an appeal court, must critically examine the evidence and ask whether, taken as whole, it reasonably supports the findings of fact reached by the Committee. [33] The appellant has in effect appealed on each of the four grounds identified by the case law. will deal first with the natural justice grounds raised in the judicial review application and in the notice of appeal. will then go on to deal with the remaining grounds raised by the notice of appeal. a. Natural Justice Issues [34] Section 49.2(10) of the Act provides as follows: (10) In making an order pursuant to this section, [the section applicable to the case before me] the committee shall observe the rules of natural justice. [35] It is trite law that the rules of natural justice impose the duty to act fairly and to provide procedural fairness. [36] The first breach of natural justice alleged is that the Committee failed to provide adequate reasons for its decision. The Committee gave lengthy written decision. Although the reasons contained in the decision may not have been to the satisfaction of the appellant, they are not inadequate as alleged and do not constitute breach of natural justice. The second breach of natural justice alleged is that the Committee heard evidence outside the presence of the appellant and refused to advise the appellant of such evidence. The affidavit filed by the chairman of the Committee refutes these allegations. accept this evidence and conclude that no breach occurred as alleged. [37] The existence of reasonable apprehension of bias is the alleged third breach of natural justice. The natural justice duty to act fairly and to provide procedural fairness cannot be achieved if an adjudicator is biased or if there is reasonable perception that it is biased. Grandpr� J. in Committee for Justice and Liberty et al. v. National Energy Board (1976), 1976 CanLII (SCC), 68 D.L.R. (3d) 716 (S.C.C.) defines what constitutes reasonable perception or apprehension of bias. This test has been consistently endorsed by the Supreme Court in various cases including R. v. S.(R.D.), 1997 CanLII 324 (SCC), [1997] S.C.R. 484 in which the court stated at p. 505: The presence or absence of an apprehension of bias is evaluated through the eyes of the reasonable, informed, practical and realistic person who considers the matter in some detail (Committee for Justice and Liberty, supra.) The person postulated is not "very sensitive or scrupulous" person, but rather right-minded person familiar with the circumstances of the case. [38] Our Court of Appeal has specifically dealt with this principle in connection with the role of committee under the Act. Milne v. Joint Chiropractic Professional Review Committee, 1992 CanLII 8304 (SK CA), [1992] W.W.R. 354 at pp. 360-361, and Huerto v. College of Physicians and Surgeons (Saskatchewan), [1996] W.W.R. 153. The latter case involved the same appellant as the one before me on this appeal. At p. 156, Mr. Justice Cameron stated that the essence of the principle was identified by Mr. Justice Cory in Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities), 1992 CanLII 84 (SCC), [1992] S.C.R. 623 at p. 636: The duty to act fairly includes the duty to provide procedural fairness to the parties. That simply cannot exist if an adjudicator is biased. It is, of course, impossible to determine the precise state of mind of an adjudicator who has made an administrative board decision. As result, the courts have taken the position that an unbiased appearance is, in itself, an essential component of procedural fairness. To ensure fairness the conduct of members of administrative tribunals has been measured against standard of reasonable apprehension of bias. The test is whether reasonably informed bystander could reasonably perceive bias on the part of an adjudicator. [39] am satisfied that Dr. Huerto's allegations respecting the involvement of the Director in the deliberations of the Committee are groundless. accept the affidavit evidence of the Chairman of the Committee to the effect that the Director did not influence the deliberations or decision of the Committee. As well, the transcript indicates that the Committee did everything within its power to accommodate the wishes of Dr. Huerto. It also indicates that the Director co-operated fully with Dr. Huerto's counsel by attempting to provide the additional information sought by Dr. Huerto to make adjustments to the statistical data presented by MCIB. Many courtesies were also extended to Dr. Huerto by the Committee. Although several of the questions asked of Dr. Huerto and his witnesses by members of the Committee evidenced sense of frustration on the part of the Committee, many of those questions would not have been required had the witnesses been more concerned with giving evidence and less concerned with advancing Dr. Huerto's position. [40] Neither the Director nor the Committee acted in aprosecutorial fashion. It is obvious that the Committee was attempting to understand Dr. Huerto's submissions and the statistical information that he was presenting. The former JMPRC gave Dr. Huerto several extensions to respond to the statistical information presented by MCIB. As well, the Committee granted him an adjournment when he failed to show up personally at the continuation of the hearing. His failure to attend was discourteous and inexcusable, put his own counsel in an awkward position, and caused considerable inconvenience to the Committee. Another accommodation made by the Committee to Dr. Huerto was that it yielded to his request that no cardiologist be placed on the Committee. As later acknowledged by the Committee, this made its task much more difficult. In the circumstances of this case, no reasonably informed bystander could reasonably perceive bias either on the part of the Director or on the part of the Committee or from the involvement of the Director with the Committee. [41] The existence of reasonable apprehension of institutional bias is the fourth alleged breach of natural justice. Dr. Huerto submits that the provisions of the Act cast the Director in the role of policeman and prosecutor. He asserts that the regulations [s. 13 of The Medical Care Insurance Peer Review Regulations, c. S-29, Reg. 18] permit the Director to attend all meetings of the Committee which in itself is contrary to the rules of natural justice. The legislative role of the Director has been ruled on previously and includes providing assistance to the Committee. Ramsahoi, supra, at p. 53. Dr. Huerto also alleges that the Director can influence the Committee, can meet with it behind closed doors and can provide it with information not discussed at the hearing. Finally Dr. Huerto alleges that the Committee members are intimidated by the Director because if they do not co-operate they may in turn become the subject of review. [42] Dr. Huerto relies on three authorities for his submission: 2747-3174 Qu�bec Inc. v. Quebec (R�gie des permis d'alcool), 1996 CanLII 153 (SCC), [1996] S.C.R. 919 (the "R�gie decision"), Canadian Pacific Ltd. v. Matsqui Indian Band, [1995] S.C.R. and Ruffo v. Conseil de la Magistrature (1995), 130 D.L.R. (4th) (S.C.C.). Institutional bias involves lack of either institutional independence or institutional impartiality, and the Court must assess the legislative structure and operating procedure of the tribunal with these factors in mind. In the interests of brevity, will not deal with each separately. [43] The review procedure and the respective roles of the Committee and the Director are set out in s. 49.2 of the Act. These statutory provisions have been canvassed and interpreted by this Court in previous cases and need not cover the same ground again. It is sufficient to observe that the majority of the members of review committee must be comprised of the peers of the professional care provider under review, and that those peers cannot be employed by the Government of Saskatchewan. Neither the Minister nor the Director can influence the outcome of matter referred to the Committee. It is the Committee who, in its sole discretion, decides whether or not an investigation is warranted. If it decides that an investigation is not warranted the matter ends. If it decides that an investigation is warranted, it holds hearing and determines whether or not to make any order for repayment. [44] The legislation also provides that it is the Committee that decides on the procedure it will follow and it may consider whatever it deems relevant. The only significant statutory requirement imposed on the conduct and operations of the Committee is that it must observe the rules of natural justice. There is no appeal by the Minister from the decision of the Committee. [45] Although the legislation vests the Committee with the dual roles of investigation and adjudication, it clearly provides that it is the Committee, not the Minister or the Director, who controls the process. In R�gie, supra, the Court observed that in substantial number of cases the plurality of functions in single administrative agency could raise reasonable apprehension of bias. But Gonthier J. at para. 47 noted that plurality of functions is not necessarily problematic. One exception to the general rule is where the overlap of functions has been authorized by statute, assuming the constitutionality of the statute is not in issue. No challenge respecting the constitutionality of the Act has been made in the case before me. [46] In Ringrose v. College of Physicians and Surgeons of Alberta, 1976 CanLII 172 (SCC), [1976] W.W.R. 712 (S.C.C.) Grandpr� J. at p. 718 stated that no reasonable apprehension of bias is to be entertained when the statute itself prescribes overlapping functions. In Appavoo, supra, at p. 42, Osborn J. (although he did not categorize the issue as institutional bias) did not accept the submission that the overlap of functions on the part of the Committee constituted reasonable apprehension of [47] Finally, it should be noted that each of the R�gie and Ruffo decisions relied on by Dr. Huerto arose in connection with the civil law in Quebec and involved constitutional challenges. These two cases are distinguishable from the case before me which is more on point with the other cases have cited. The appellant has notestablished that there is a reasonable apprehension of bias ora reasonable apprehension of institutional bias respecting thestatutory roles of the Committee and the Director or thealleged lack of institutional impartiality of the Committee orits alleged lack of institutional independence from theDirector and MCIB. b. Errors of Law Issues [48] The appellant alleges that the Committee committed three errors of law. The first is that the Committee placed the onus of proof on Dr. Huerto. Although some of the comments made by Committee members during the hearing might give rise to this allegation, it must be borne in mind that the statistical package presented by MCIB indicated that Dr. Huerto's pattern of billing constituted dramatic departure from the pattern of billings of the other cardiologists comprising the group mean. In other words this statisticalevidence could be considered by the Committee as a prima faciecase (or a presumption) that Dr. Huerto\'s billings constituteda departure from a pattern of medical practice acceptable tothe Committee. It was then open to the Committee, in the face of this presumptive evidence, to call on Dr. Huerto to address and rebut the presumed departure. If he failed to respond, the Committee was entitled (but not compelled) to rely on the presumptive statistical evidence and conclude that Dr. Huerto had received payment from the minister by reason of departure from pattern of medical practice acceptable to the Committee. On the basis of this finding it could then make the order it deemed appropriate. This by no means shifted theoverall burden of proof to Dr. Huerto nor did it require himto prove that his pattern of medical practice was acceptableto the Committee. [49] On the other hand if Dr. Huerto chose to respond and give an explanation or adduce evidence from other witnesses or sources (as he did in the case before me) then the Committee was required to consider all the evidence as whole in deciding whether it was satisfied that there had been payment by reason of departure from pattern of medical practice acceptable to the Committee. It could not rely solely on the presumption as being determinative of the issue. It appears from the proceedings that the Committee understood that once Dr. Huerto had addressed and adduced evidence respecting the variation illustrated by the MCIB statistics, these statistics were no longer solely determinative. They were simply evidence that had to be considered along with all the other evidence presented. [50] The respondents submit that the principle of onus of proof does not apply to the review proceedings because the Committee is not bound to follow the rules of evidence and in any event the proceedings are of an investigative nature. disagree with this submission. Although counsel were not able to refer me to any authorities on this issue, it is evident that before any tribunal can rule that an occurrence has been established, it must be satisfied on balance of probabilities that the occurrence has been established. The phrase "balance of probabilities" means "more likely than not". To hold otherwise would make nonsense of administrative law and would violate the rules of natural justice. Even though neither the strict rules of evidence nor the adversarial nature of criminal or civil trial are applicable to the review proceedings, the burden of proof principle is basic to the determination of any issue affecting the rights of an individual who is entitled to be heard. The Committee has dual role which involves adjudication as well as investigation. The respondents suggest that the comments set out on pp. and of The Law of Evidence (Toronto: Irwin Law, 1996) by Paciocco and Stuesser, support their position. disagree with their interpretation of these comments. [51] The second error of law alleged by the appellant is that the Committee erred in construing its mandate under the Act and ignored the statistical analysis presented by Dr. Huerto. Throughout the review hearing and this appeal, the appellant made much of purported distinction between the phrases "pattern of medical practice" and "pattern of billing". Unfortunately these two phrases were used interchangeably by members of the Committee during the hearing and in the written decision. In effect, the appellant contends that the Committee erred in law in focusing its consideration on the pattern of Dr. Huerto's billings rather than on the pattern of his medical practice. This distinction however is more matter of semantics than of substance. The phrase "pattern of medical practice" appears only once in s. 49.2(2) which provides as follows: 49.2(2) Where, in respect of insured services provided by physician, it appears to the director that physician has received or may receive from the minister or that physician has caused or may cause the minister to pay to any person, or both, either directly or indirectly, any amount of money by reason of any departure from pattern of medical practice acceptable to the committee, he may refer the matter to the committee. [52] It is important to put this phrase in perspective. Taken literally, this subsection containing the phrase simply sets out the condition that must be met before the Director can refer the matter to the Committee. The words "it appears" indicate that the condition is met if the Director subjectively believes that funds were paid by reason of any departure from pattern of medical practice that he understands is acceptable to the Committee. Although agree with the appellant that this phrase does as well set out the mandate of the Committee, the legislation does not clearly so provide. Neither ss. (5) that sets out what the Committee can order, nor ss. (8) that sets out what the Committee may take into account in determining whether an order should be made "pursuant to subsection (5) or (7)", refers to or uses the phrase. In determining whether an order should be made, the Committee is not required to take into account anything, even statistical comparison. But it may take into account anything it considers relevant. [53] Subsections (5) to (8) of s. 49.2 are as follows: (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. (6) Any order made pursuant to clause (5)(b) is to be restricted to period of not more than 19 consecutive months beginning not earlier than 25 months prior to the day the notice is served pursuant to subsection (3) and ending not later than that day. (7) Where the committee makes an order pursuant to subsection (5), it may make further order requiring the physician to pay to the minister an additional amount not exceeding $50,000. (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. [54] Assuming that ss. (2) does spell out the mandate of the Committee, it must be borne in mind that billings are just as significant component of the pattern of medical practice as is the type of speciality practised, the numbers of patients treated, the quality and appropriateness of the treatment, and the like. The whole object of review hearing pursuant to s. 49.2 is to determine if the billing aspect of the pattern of medical practice is acceptable to the Committee. Section 49.2 is not concerned with the professional competence of physician but with the billings of physician respecting insured services. The appellant seems to imply that so long as he is found to be competent in his provision of medical services, he is immune from the economic consequences that flow from his pattern of medical practice. This artificial distinction flies in the face of the clear objectives of the Act. By way of example, cardiologist who restricted her practice to one patient and constantly monitored and tested that patient by way of preventative treatment, would provide safe and sound pattern of medical practice. But this pattern of medical practice would undoubtedly not be acceptable to committee from cost effective perspective. [55] The appellant submits that the courts have erred in previous cases by upholding committee repayment orders made purely for reasons of economics. Certainly repayment orders made on the basis of economics have been upheld by various cases before this Court. But those cases did not hold that economics was the sole issue or that other considerations were not important. Osborn J. in Appavoo, supra, at p. 37 sets out the features of the insurance plan established under the Act. have reproduced it in full as it addresses many of the submissions raised by the appellant on this issue. The primary object of the Saskatchewan Medical Care Insurance Act is to relieve each of the residents of the province from having to bear, directly and individually, his or her costs of medical care. That purpose is achieved by means of plan of insurance, with the government being constituted as the insurer and the residents as the beneficiaries. Among the important features of this "insurance (1) It assumes the continued existence of an independent medical profession engaged in the private practice of medicine; (2) It preserves the traditional legal relationship between patient and doctor, including the usual fee- for-service method of payment (except that in most cases the insurer rather than the patient pays the fee pursuant to the contractual arrangement between the government and the doctor); and (3) It does not require the patient- beneficiary or the doctor to obtain the insurer's prior approval of either service or the expenditure involved in the diagnosis and treatment of illness. Section 17 provides for the continued independence of doctors from the government, stating: "17(1) It is not the intention or purpose of this Act to establish plan of medical care insurance for the residents of Saskatchewan under which: (a) the general basis for remunerating physicians for insured services provided to beneficiaries would be exclusively or largely fixed sum of money calculated on yearly or other periodic basis; (b) the relationship between the minister and physicians who provide insured services would be that of employer and employee; or (c) the exercise of professional judgment by physicians is in any way diminished. "(2) Nothing in subsection (1) interferes with or prevents physician from exercising free choice as to the method by which he is to be remunerated for insured services provided to beneficiaries." The relevant portions of the contract in place between the government and Dr. Appavoo are as follows: "1. The Saskatchewan Medical Care Insurance Commission, hereinafter called the 'Commission', shall make payment directly to the physician for insured services provided by the physician to beneficiaries with respect to accounts submitted directly to the Commission. "2. Payment for each service shall be made in accordance with: (a) the Commission's Payment Schedule and the Assessment rules contained in that schedule applicable to the service on the date it was provided; and (b) the regulations made under the Saskatchewan Medical Care Insurance Act. "5. The Commission or the physician may request reassessment of an account." Under the contract, then, the Commission undertook to pay Dr. Appavoo for each insured service performed by him in accordance with the Payment Schedule (including the Assessment rules) and the Regulations, subject to either initiating reassessment. [56] It is also important to observe that while s. 17 preserves the integrity of doctor's professional judgment, s. 23 of the Act preserves the integrity of patient's choice of doctor. It provides as 23 Nothing in this Act or in the regulations is intended to interfere with or restrict: (a) the right of beneficiary to select the physician or other person providing insured services from whom he will receive those services; (b) the right of physician, or other person providing services, to accept or refuse to accept patient who is beneficiary; (c) the right of physician, or other person providing services, to make charges for insured services provided to patient who is not beneficiary. [57] Although the appellant's submission on this issue may not have been raised as ground of appeal in the previous cases, the comments by Osborn J. clearly indicate that the courts have not been concerned purely or solely with economics. If that was the only consideration, the review process would be useless exercise and the statistical comparative evidence would not simply be capable of raising presumption but would be conclusive of the issue. [58] With these considerations in mind, I conclude thatthe Committee did not err in law in misconstruingits mandate or by ignoring the statistical analysispresented by Dr. Huerto. The mandate defined by theappellant is much narrower than what is envisaged bythe legislation. The Committee set out to determine whether the substantial payments Dr. Huerto received over and above the mean of his cardiologist peers constituted departure from pattern of medical practice acceptable to it that warranted some form of order for repayment. The use by the Committee of the phrase "pattern of billings", although not the phrase used in the Act, was appropriate in the context in which it was used. The Committee did not ignore the statistical information presented by Dr. Huerto, nor did it conclude that it could not take into consideration his submissions respecting hospital costs and related issues. [59] The third error of law alleged by the appellant is that the Committee used and relied on the knowledge of its own members rather than making decision based on the evidence. The law is clear that the members of tribunal can utilize their own expertise to assess the evidence but they cannot use it to supplement the evidence or to substitute their own opinion for the evidence. Huerto v. College of Physicians and Surgeons (Saskatchewan), 1994 CanLII 4900 (SK QB), [1994] W.W.R. 457 (Sask. Q.B.) affirmed 1996 CanLII 4920 (SK CA), [1996] W.W.R. 153 (Sask. C.A.). There is nocredible evidence that the members of the Committee misusedtheir expertise and relied on it rather than determining theissues from the evidence presented. The record discloses that the Committee considered and assessed all the evidence presented and it acknowledged that its members were general practitioners, not cardiologists, making its task more c. The Evidentiary Support for the Orders [60] The final ground of appeal raised by the appellant is that the orders made by the Committee were not reasonably supported by the evidence. Several cases in this Court have clearly defined the scope of this specific ground of appeal. The first was Ramsahoi v. Saskatchewan (Minister of Health) et al., supra. Wedge J. stated at p. 51: It is clear, from reading of the transcript, that the Committee did not accept Dr. Ramsahoi's explanations as to why his billing practices were markedly different from those of his peers. Although judge on appeal is given the power, in s. 49.21(1), to substitute an order it considers that the Committee ought to have made for the order it did make, it must be acknowledged that the Act gives committee of physicians the responsibility of insuring that no other member of its profession is over-billing the Minister of Health. In so doing, these physicians use their medical background and experience in making their assessments of patterns of medical practice. The physicians at the meeting on March 31, had the opportunity of hearing and evaluating Dr. Ramsahoi's explanations. Like any appeal court, should not substitute my assessment of the facts for that of those who heard the evidence, providing that these facts are reasonably supported by that evidence. This is an important consideration in case such as this, where the legislative intent is that the primary responsibility for reassessment lies with committee of professional colleagues. [61] Ramsahoi has been followed in the numerous cases cited by Osborn J. in Appavoo, supra, and in Minhas v. Saskatchewan (Minister of Health) et al. (1992), 102 Sask R. 171. Malhotra v. The Joint Medical Professional Review Committee, (January 22, 1992, Q.B. No. 981 of 1990, Sask. Q.B., unreported) and the Minhas case both refer to what is inherent in the other cases. See also the recent unreported decisions of Zarzeczny J. in Dr. Thomas E.R. Blackwell v. The Joint Medical Professional Review Committee, (April 24, 1998, Q.B. 2069 of 1997, Sask. Q.B., unreported) and Dr. Subramaniam Sothilingam v. The Joint Medical Professional Review Committee, (April 24, 1998, Q.B. 2070 of 1997, Sask. Q.B., unreported) to the same effect. The Court observes that to determine whether the decision of committee is reasonably supported by the evidence, the Court must critically examine the evidence. The appellant contends that the case law has given too much deference to decisions made by Joint Medical Professional Review Committees. But the standard of review set out in the cases is really no less rigorous than that afforded to decision of this Court under appeal. Much of the evidence placed before review committee is highly technical and cannot be reliably assessed without rudimentary understanding of medical disciplines and procedures. Usually the evidence considered by review committee involves conflicting medical opinions and differing views of what constitutes sound professional judgment and responsible billing patterns. [62] The Court is usually placed in the unenviable position of having to consider the validity or credibility of this conflicting opinion evidence. Certainly medically qualified committee is in much better position than court to assess such issues. In fact the legislation implies, as affirmed by the case law, that committee is entitled to use its expertise in assessing the evidence. The Court has no such advantage. If the decision of committee is reasonably supported by one version of the evidence, the Court in my respectful view should give deference to the committee and should not substitute its own view of the evidence. The Court should intervene only if the evidence as whole clearly demonstrates that the decision of the committee is in error because it is not reasonably supported by that evidence. [63] The determination by the Court of whether the decision is "reasonably" supported by the evidence will depend in part on the nature of the evidence presented. The Court, for example, will be more inclined to rely on its own view of the evidence if the evidence is comprised primarily of statistical analyses rather than medical opinions. As well, less deference will be given to committee in cases, such as the one before me, where considerable evidence has been presented on behalf of the medical professional under review. In such case the judicial role of committee becomes more prominent than its investigative role and its own expertise becomes less crucial to its ultimate decision. [64] My decision to this effect in the Barber v. Saskatchewan (Minister of Health) et al. (1991), 94 Sask. R. 37 (Q.B.) case was reinforced as attempted to comprehend the volumes of "evidence" pertaining to the manner in which Dr. Huerto diagnosed and treated the patients comprising the twenty files mentioned previously. But the issues raised in his appeal are quite unique and distinguish it from the previous appeals considered by our Court. There is little conflict in the evidence presented to the Committee and it consisted of far more than simply technical question and answer session by members of the Committee and Dr. Huerto. Numerous witnesses testified at length on behalf of Dr. Huerto, most of whom were experts in various aspects of the medical practice. [65] As outlined previously, Dr. Hughes, cardiologist, gave evidence that not only was Dr. Huerto's medical practice sound from medical perspective, but that it is cost effective. Dr. Atkinson, an expert on health economics, gave evidence that hospital care was major component of health costs and must be taken into account in any meaningful comparison of patterns of billings and patterns of medical practice. The professional evidence of Dr. Diaz and Professor Heaslip support the assumptions made by the two expert witnesses in arriving at their respective opinions. The appellant himself and one of his patients also gave evidence that tended to support the validity of those assumptions. Finally there was the adjusted comparative statistical data compiled and presented by counsel for Dr. Huerto. [66] Unfortunately the written decision of the Committee does not come to grips with this considerable body of evidence. It is clear from the record that this evidence was considered by the Committee but it is not clear why it was rejected. The Committee did not comment on the credibility of the various witnesses but it cannot be presumed that their evidence was considered to be unreliable. Nor does the Committee appear to have relied on the evidence of Dr. Sommerville (if that evidence was before it). It appears from the written decision of the Committee and its questions during the hearing that it rejected the adjustments made by Dr. Huerto to the comparative statistical data presented by MCIB because these adjustments were predicated on assumptions that had not been established. It also appears that the Committee dismissed the evidence of Dr. Huerto's witnesses, particularly that of Dr. Hughes, on the same basis. [67] The subject of the hearing was the acceptability of Dr. Huerto's pattern of medical practice as cardiologist. The only evidence before the Committee that contradicted the evidence presented on behalf of Dr. Huerto was the statistical data presented by MCIB and possibly the letters from Dr. Sommerville to the College. The comments of Halvorson J. in Huerto, supra, illustrate the difficulty in relying on Dr. Sommerville's evidence if Dr. Huerto was not given the opportunity to test it. If the Committee had arranged for cardiologist (from Saskatchewan or elsewhere) to testify at the hearing such evidence may have conflicted with that of Dr. Hughes. In such event the evidence as whole may have reasonably supported the Committee's decision. But no such evidence was presented that countered the evidence presented by Dr. Huerto. The only evidence supporting the decision of the Committee was the MCIB statistics. [68] But it was clear from the evidence as whole that the statistical data presented by MCIB was not valid comparison of Dr. Huerto to the mean of his peers. As previously outlined, his practice is significantly different in three respects from that of his cardiologist peers. Those differences have significant impact on his pattern of billings. The statistical data generated by MCIB do not reflect these substantial differences. [69] It appears that the Committee was overwhelmed by the unavailability of statistical information to support Dr. Huerto's position on hospital costs respecting cardiac patients. But the Committee made fatal error if it came to its conclusion based primarily on MCIB's comparative statistics. The overwhelming weight of the evidence presentedto the Committee demonstrated that the MCIB statistics wereflawed as a reliable comparison tool and that the adjustedstatistics presented by Dr. Huerto were more reliable even ifthey were based on estimates rather than substantiated data. [70] My decision should not be interpreted to suggest that review proceedings are invalid unless they take on the appearance of formal trial or court hearing. That is obviously not what is intended by the legislation nor is it the most effective procedure by which to determine if repayment orders should be made. The costs in most cases would be prohibitive. But this case is unique and raises issues never before canvassed at review hearing. The appellant obviously expended substantial effort and expense in preparing and presenting relevant evidence to support his position respecting the issue before the Committee. It may well be that the Committee made the correct decision in the circumstances. But as an appeal judge, my role is to critically assess the evidence to see if it reasonably supports the decision made by the Committee. If it does not, then must intervene. The appellant has established to mysatisfaction that for the most part the decision of theCommittee is not reasonably supported by the evidence. Instead it is contrary to the evidence. [71] Once the appeal court determines that it cannot uphold the decision appealed from, it is permitted by s. 49.21(2) of the Act to (a) quash the order and substitute any order that it considers the Committee ought to have made, (b) refer the matter back to the Committee with directions to reconsider it, or (c) vary the order. Understandably neither party desires that refer the matter back to the Committee as the ultimate costs involved will likely exceed the amount in issue. Nor in the unique circumstances of this case is it necessary or desirable to refer the matter back to the Committee. The evidence contained in the extensive record of the proceedings is relatively uncontradicted and is credible and compelling. It establishes that the MCIB statistics in this particular case were seriously flawed as reliable comparison of billing patterns and cardiac patient costs. No repayment order based on departure from the group mean was warranted. But am not inclined to simply quash the order entirely as the evidence reasonably supports that portion of the order that deals with surcharges. [72] Dr. Huerto in effect admitted that many of thesurcharges had been billed by him because of his erroneousinterpretation of the tariff. Even though he felt he was entitled to payment for his services, these services did not fall within the parameters of the surcharge tariffs. The order of the Committee that Dr. Huerto repay the amount of these surcharges should stand. The decision of the Committeeis accordingly varied to quash all repayment orders made by itexcept for the repayment orders pertaining to the 815A, 817Aand 819A surcharges in the amounts of $5,750.50, $3,273.34,and $5,215.92 respectively totalling $14,239.76. [73] The judicial review application is dismissed and theappeal is allowed and the repayment orders set aside exceptfor the orders respecting surcharges. If the parties are not able to agree on costs, leave is given to bring the costs issue back before me for determination.

Administrative Law - Judicial Review - Bias/Institutional BiasAdministrative Law - Medical Care Insurance - Medical Fees - Repayment - AppealProfessions and Occupations - Physicians and Surgeons - Cardiologist - Medical Fees_____ A cardiologist appealed an order made against him by the Joint Medical Professional Review Committee for repayment of $207,821.03 in medical fees he received over a fifteen month period from the Medical Care Insurance Branch (MCIB). Alleged errors of law included improperly placing the burden of proof on the doctor; failing to take into account all relevant factors including the doctor's statistical analysis; considering it beyond his mandate to provide cost effective services in keeping patients out of the hospital; by using and relying on the knowledge of the Committee in preference to the expert evidence; the orders made concerning various medical services were not reasonably supported by the evidence. The numerous grounds of appeal also included breach of the rules of natural justice by reason of a lack of institutional independence. The application under Part 52 of the Rules of Court for a judicial review was brought to determine whether there was a reasonable apprehension of bias raised by the statutory roles of the Committee and Director or lack of institutional impartiality of the Committee or its lack of independence from the Director or MCIB. _____ HELD: The judicial review application was dismissed. The appeal was allowed and the repayment orders were set aside except for the orders respecting surcharges. 1)Natural justice issues: A reasonable apprehension of bias or institutional bias were not proven. The Committee provided adequate written reasons for its decision. The chairman refuted the allegations that the Committee heard and relied on evidence outside the presence the appellant about which he was not advised. Neither the Director nor the Committee acted in a prosecutorial fashion. Examples included the adjournment granted when the appellant failed to attend and the concession to his request that no cardiologist be placed on the Committee. 2)Errors of law issues: The statistical evidence could be considered by the Committee as a prima facie case. It was then open for it to call on the doctor to rebut the presumed departure from an acceptable pattern of medical practice. This did not shift the overall burden of proof to the doctor nor did it require him to prove his pattern of medical practice was acceptable to the Committee. The Committee did not err in law in misconstruing its mandate or by ignoring the statistical analysis presented by the appellant whose definition of the mandate was much narrower than envisaged by the legislation. It was not agreed that the Committee is not bound to follow the rules of evidence and the proceedings were of an investigative nature. The phrase 'balance of probabilities' means 'more likely than not'. To hold otherwise would make nonsense of administrative law and would violate the rules of natural justice. The distinction between the pattern of the doctor's billings and the pattern of his medical practice was more a matter of semantics than substance. If economics were the only consideration the review process would be a useless exercise and the statistical comparative evidence would be conclusive of the issue. There was no credible evidence that the members of the Committee misused their expertise and relied on it rather than determining the issues from the evidence presented. 3)The appellant established that for the most part the decision of the Committee was not reasonably supported by but was contrary to the evidence. The MCIB statistics were flawed as a reliable comparison tool and the appellant's adjusted statistics were more reliable even if based on estimates rather than substantiated data. The appellant's medical practice was unique in three respects. He did not have hospital privileges and had staff and diagnostic equipment equivalent to a cardiac care unit in the hospital; he ordered more diagnostic tests and did more follow up than other cardiologists and had extended office hours. 4)The decision of the Committee was varied to quash all repayment orders except for $14,239.76. The appellant admitted that many of the surcharges had been billed because of his erroneous interpretation of the tariff. 5)Leave was granted to bring the issue of costs back for determination if necessary.

1998canlii13596.txt

LANE J.A. 2005 SKQB 112 F.L.D. A.D. 1997 No. 27 J.C. W. IN THE QUEEN’S BENCH (FAMILY LAW DIVISION) JUDICIAL CENTRE OF WEYBURN BETWEEN: DEBORAH RUTH SOANES (Formerly known as Deborah Ruth Goote) and RONALD HARRY NEWETT RESPONDENT R.J. Wormsbecker for the petitioner I.D. McKay, Q.C. for the respondent JUDGMENT MATHESON J. March 2, 2005 [1] The issue between the parties is the amount of child maintenance payable by the respondent to the petitioner for the benefit of Brady Melvin, born January 9, 1993. [2] The amount of the respondent’s income, as reported in his income tax return for the years 2001, 2002, and 2003 was $71,501.00, $73,272.00 and $74,476.00. He has asserted child maintenance should be calculated on the basis of that income. However, the respondent is the sole shareholder of Canadian Well Servicing Ltd., and he owns 50% of the shares of Southern Range Well Servicing Ltd. [3] The fiscal year end of Canadian Well Servicing Ltd. is August 31. Its net earnings, and retained earnings for the past four years were: Year Net Earnings Retained Earnings 2001 [$ 18,205.00] [$ 20,849.00] 2002 [$ 11,463.00] [$ 32,312.00] 2004 $202,380.00 $241,962.00 [4] The fiscal year end of Southern Range Well Servicing Ltd. is May 31. Its net earnings, and retained earnings, for the past four years were: Year Net Earnings Retained Earnings 2002 $174,121.00 $211,117.00 2003 $137,439.00 $348,555.00 $91,565.00 $440,121.00 [5] Notwithstanding the profitability of the companies the last couple of years, the respondent has insisted that the indebtedness of the company is $1,600,000.00. However, nearly $600,000.00 of that debt represents shareholders loans. [6] The long term debt of Canadian Well Servicing Ltd., as of May 31, 2004, was only $148,750.00. The current portion of the long term debt was deducted on its balance sheet before calculation of retained earnings. [7] As of August 31, 2004, the long term debt of Southern Range Well Servicing Ltd. was $161,303.00. The current portion of that long term debt was deducted before calculation of retained earnings. [8] The respondent has also asserted that Canadian Imperial Bank of Commerce, to whom the long term debt is owed, has placed restrictions upon the amount of money which can be extracted from both companies. But, no particulars of the alleged restrictions were provided. The retained earnings of both companies far exceeds the amount of the long term debt. [9] Based on the foregoing, it will be deemed that the respondent has additional income from Canadian Well Servicing Ltd. of $50,000.00 and from Southern Range Well Servicing Ltd. of $27,200.00. [10] There will be an Order: 1) Varying the Order dated April 9, 1997, by requiring the respondent to pay to the petitioner, for the period January 1, 2004, to July 31, 2004, as maintenance for the child, Brady Melvin, in accordance with the Federal Child Support Guidelines [SOR/97-175, as am.] (the “Guidelines”), on the basis of the respondent's annual income for that period of time, being $72,800.00, the sum of $561.00 per month. 2) Imputing the annual income of the respondent to be $150,000.00. 3) Declaring the annual income of the petitioner to be $20,000.00. 4) Requiring the respondent to pay to the petitioner, as maintenance for the child, Brady Melvin, in accordance with the Guidelines, the sum of $1,076.00 per month. 5) Requiring the respondent to pay to the petitioner 88% of the hockey expenses incurred on behalf of the child from August 1, 2003, to August 1, 2004, which expenses total $3,900.00, and to pay to the petitioner 88% of the child's hockey expenses thereafter upon being provided with proof of payment of such expenses. 6) The parties shall exchange income tax returns no later than June 15 of each year. Any adjustments to child maintenance payments, and s. expenses, shall, based on the income tax returns, be effective as of January in the year in which the income tax return was filed. 7) The respondent shall, within 30 days of filing the income tax returns for Canadian Well Services Ltd. and Southern Range Well Services Ltd., provide copy thereof to the petitioner. 8) The petitioner is entitled to costs of the application in the amount of $750.00.

The issue is the amount of child support payable by the respondent. The respondent's income as reported in his income tax return for the past 3 years has been in the $70,000 range. However, he is also the sole shareholder of a corporation and the 50% owner of another corporation. The corporations have been very profitable and the retained earnings of both companies far exceed the amount of long term debt. HELD: 1) The respondent has deemed additional income of $50,000 and $27,200 from the two companies. 2) The imputed annual income of the respondent is $150,000. 3) Costs in the amount of $750 to the petitioner.

7_2005skqb112.txt

Dated: 20020423 2002 SKCA 55 Docket: 496 THE COURT OF APPEAL FOR SASKATCHEWAN Before: Lane J.A. in chambers SEAGROVE CAPITAL CORPORATION and SHAUN SPELLISCY and DANIEL TAPP and LEADER MINING INTERNATIONAL INC. COUNSEL: Mr. R.A. Watson for the Appellants Mr. M.O. Laprairie, Q.C. for the Respondent DISPOSITION: On Appeal From: Q.B.G. No. 2340 of 1996, J.C. of Regina Application Heard: April 10, 2002 Application Dismissed: April 10, 2002 (orally) Written Reasons: April 23, 2002 Reasons By: The Honourable Mr. Justice Lane LANE J.A. (orally) [1] The proposed appellants applied to extend the time for filing a notice of appeal of a Court of Queen’s Bench trial judge’s order awarding costs to the proposed respondent payable by Spelliscy and Tapp, jointly and personally. They propose to appeal essentially on the basis the award was punitive and inordinately high. [2] had orally refused to grant the extension for the reason saw little chance of success on appeal. Counsel for the proposed respondent advised the court the cost award was based on costs thrown away after the trial judge ordered mistrial because of the prejudice caused by the proposed appellants’ address to the jury. Counsel further advised the Court there was an affidavit filed before the Queen’s Bench trial judge setting out the costs and expenses. [3] Subsequently, counsel for the proposed respondent filed the memorandum of argument for costs filed below. It did not contain an affidavit but did detail the expenses, fees and hours of work, some of which will be used at the new trial. Because there was no affidavit as claimed the proposed appellants argue there was no evidentiary foundation for the award and asked for rehearing of the application. [4] The parties have not taken out the order and thus have maintained jurisdiction to decide the matter. [5] Having read the material and the relevant portions of the Queen’s Bench file I am still of the view the proposed appellants would have little chance of success on appeal. Costs are a discretionary award and there was material on file upon which the trial judge could base his decision. [6] I note the proposed appellants failed to firstly apply to the trial judge to obtain leave to appeal as required by section 38 of The Queens Bench Act, 1998[1] which reads as follows: 38 Except with leave of the judge giving the judgment or making the order, the following judgments and orders are not subject to appeal: (a) judgments given or orders made by judge with the consent of the parties; (b) subject to the rules of court, judgments given or orders made by judge as to costs only that, by law, are left to the discretion of the judge. [7] The application is therefore dismissed with costs on double Column V. [1]S.S. 1998, c.Q.-1.01.

The proposed appellants applied to extend the time for filing a notice of appeal of an order awarding costs payable jointly and personally by Tapp and Spelliscy on the basis the award was punitive and inordinately high. HELD: The application was dismissed with costs on double Column V. The Court is still of the view the proposed appellants would have little chance of success on appeal. Costs are a discretionary award and there was material on file upon which the trial judge could base his decision. The appellants failed to first apply to the trial judge to obtain leave to appeal as required by Queen's Bench Act s.38.

4_2002skca55.txt

J.R THE COURT OF APPEAL FOR SASKATCHEWAN PRECISION METAL FABRICATING LTD., LOREN KATZENBERGER and SHERYL KATZENBERGER (Respondents) APPELLANTS and ROSETOWN AND DISTRICT COMMUNITY BOND CORPORATION (Applicant) RESPONDENT BEFORE: The Honourable Mr. Justice Wakeling (in Chambers) COUNSEL: Mr. N. Turcotte for the Appellants Mr. J. Litman for the Respondent DISPOSITION: Application Heard: July 10, 1996 Application Dismissed: July 16, 1996 Reasons: July 16, 1996 On Appeal From: Q.B. 993 of 1996, J.C. of Saskatoon Appeal File: 2484 Reasons by: The Honourable Mr. Justice Wakeling WAKELING J.A. This is an application of the Rosetown and District Community Bond Corporation to lift the stay which is the result of the appeal taken by Precision Metal Fabricating Ltd., Loren Katzenberger and Sheryl Katzenberger from the order of Kyle J. delivered July 11, 1996. The order in question was made pursuant to s. 234 of The Business Corporations Act, S.S. 1979, c. B-10, as a result of a finding by the chambers judge that the conduct of the Board of Directors of Precision Metal Fabricating Ltd. had been high-handed and oppressive entitling the Rosetown and District Community Bond Corporation to relief. The relief that was provided may well have been entirely appropriate, but it could have the effect of removing control of the said Precision Metal Fabricating Ltd. from Loren Katzenberger and Sheryl Katzenberger who are its present and long-time majority shareholders. This change of control could well occur as early as July 22nd, when a meeting of the shareholders is scheduled to be held at which time the voting rights of the shareholders will be changed as a result of the order of Kyle J. which is under appeal. My concern is that if the order is not upheld on appeal, it will be difficult to undo the results of the July 22nd meeting. I appreciate that banking decisions of importance must be made by the end of this month, but I cannot believe these decisions will not reflect the best interests of the company, as they will be made by the current directors who have the most to lose if they are not made in a sound and business-like fashion. In the result, the application to lift the stay is dismissed with costs to follow the result of the appeal. DATED at the City of Regina, in the Province of Saskatchewan, this 16th day of July, A.D. 1996. WAKELING J.A.

Related decision-145 SaskR 231 The chambers judge had found the conduct of the Board of Directors to be high-handed and oppressive. A meeting of shareholders was scheduled for July 22nd at which time the voting rights of the shareholders was to be changed. That order was under appeal. HELD: The application to lift the stay was dismissed with costs to follow the result of the appeal. 1)If the order was not upheld on appeal it would be difficult to undo the results of the July meeting. 2)The current directors had the most to lose if their decisions did not reflect the best interests of the company and were not made in a sound and business-like fashion.

7_1996canlii5032.txt

QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2007 SKQB 397 Date: 2007 11 01 Docket: Q.B.G. 1807/2005 Judicial Centre: Regina BETWEEN: KUSY’S ELECTRIC LTD. and TIM SULLIVAN, SULLIVAN INSTRUMENTATION INC. and POTASH CORPORATION OF SASKATCHEWAN Counsel: Paul J. Harasen for the plaintiff Neil B. Fisher for the defendant, Potash Corporation of Saskatchewan Inc. J. Paul Malone for the defendants, Tim Sullivan and Sullivan Instrumentation Inc. JUDGMENT McLELLAN J. November 1, 2007 [1] The plaintiff claims damages against the defendant Potash Corporation of Saskatchewan Inc. (“PCS”) for breach of contract whereby the plaintiff was to supply electricians to perform work at its potash mine at Rocanville, Saskatchewan. (the “mine”) [2] The plaintiff also claims damages against the defendants Tim Sullivan and Sullivan Instrumentation Inc. (collectively called “Sullivan”) for breach of an employment contract when Sullivan was employed by the plaintiff to perform services for PCS at the mine. [3] PCS entered into contract with the plaintiff on February 16, 2005 for term of two months. The plaintiff was to supply two instrument technicians to perform electrical instrumentation work at the mine. The contract was extended by PCS in mid April and then again in June until the end of September, 2005. [4] The plaintiff alleges that the contract was extended for further three months from September 30 until the end of December 2005. PCS disputes that claim. [5] Sullivan worked for the plaintiff at the Saskferco plant at Belle Plaine from August 2003 until February 2005 at which time he agreed to work for the plaintiff at the PCS mine. He worked there until September 29, 2005. Sullivan met with Darrell Kusniak (“Kusniak”) in the summer of 2005 in Regina and at that time informed Kusniak that he was leaving his company and going into business on his own at the end of September. [6] Kusniak disagrees with that but prefer Sullivan’s account of the meeting. [7] In addition to Sullivan the plaintiff hired Compton Bird (“Bird”), an apprentice instrumentation mechanic to work at the mine site. Bird left his employment with the plaintiff on August 31, 2005 (the plaintiff was not able to find replacement for Bird) which left Sullivan as the sole employee at the mine. [8] Kusniak claims that on September 20, 2005 he received telephone call from Darren Green (“Green”) who was the instrumentation supervisor of PCS at the mine extending the contract for further three months until the end of December 2005. [9] Green’s version of that conversation differs from Kusniak. He claims that during the telephone call with Kusniak he said words to the effect “if need someone from the end of September to the end of December, would you be able to supply someone?” [10] At the time he made the telephone call Green was aware that Bird had left the plaintiff’s employ and had not been replaced. He also knew that Sullivan was leaving employment with the plaintiff. [11] Green pointed out that he advisedly used the word “if” because the usage of outside contractors had gone on for much longer than had been originally anticipated and he did not, nor was he certain he would ever get, authorization to continue to utilize outside contractors. PCS had, on its permanent staff, individuals to do the type of work which was being done by the plaintiff. The decision to hire outside contractors past September 30th would be made by Joseph Fortney (“Fortney”), the General Manager of Operations for PCS at Rocanville. [12] Kusniak went on trip to British Columbia on September 27th and did not return until October 2nd. [13] He knew that PCS might need two outside electricians by October 3rd. Before leaving for British Columbia he had telephoned the union hall and was informed they could not supply any workers. He knew Sullivan was leaving at the end of the month. He claimed he could have moved people from Saskferco to do the job for PCS. He was charging Saskferco the same hourly rates that he was charging PCS. It seems highly unlikely that he would jeopardize that contract which he had for some time to obtain contract for three months without any additional profit. He agreed that he had never spoken to any other employees about going to Rocanville. [14] Kusniak’s credibility was seriously damaged when he suggested that the contract had been extended and yet had made no arrangements to have electricians available to be at Rocanville on October 3rd. Sullivan had faxed his time sheet to the plaintiff on September 22 and added handwritten note asking for his Record of Employment. Even if had accepted Kusniak’s version of the meeting with Sullivan in Regina he would have known at that time that Sullivan was leaving his employ. [15] When consider all the evidence accept Green’s version of the telephone call and as result find that the contract between the plaintiff and PCS was never extended past September 30th. The claim against PCS is therefore dismissed. [16] Sullivan incorporated his company on September 14, 2005 and at that time started to consider other opportunities. He knew the plaintiff’s contract with PCS was expiring at the end of September, 2005 so he made proposal on September 19 on behalf of his company to PCS to do instrumentation work for it. He was advised on September 21 that his proposal was rejected. He revised his proposal and submitted new proposal on September 26, 2005. [17] Fortney made the decision to hire outside electricians past September 30th on September 26th. He knew, at that time, that Sullivan was leaving the employ of the plaintiff. He realized that it would be more cost effective and quicker to have Sullivan complete the work. Sullivan had already had all safety orientations, was familiar with the site and the PCS employees and would have no learning curve to negatively offset productivity. IV [18] The only remaining sole issue is whether Sullivan breached his employment contract by submitting a proposal to PCS when he was still employed by the plaintiff. [19] The law is well settled that an employee is under an implied obligation not to compete with an employer during the term of his or her employment. Although Sullivan had given notice that he would no longer work for the plaintiff after September 30th he was still employed at the time he made his proposal. [20] find nothing wrong with Sullivan setting up his corporation with view to starting competitive business after his employment with the plaintiff ended. An employee must be free to plan his future after his employment with his employer ends. He did not prepare the proposals during working hours. He prepared them with the assistance of his wife, when he was off work in Regina. [21] However the B.C. Court of Appeal in the case of Restauronics Services Ltd. v. Forster 2004 BCCA 130 (CanLII); [2004] 5 W.W.R. 233; 239 D.L.R. (4th) 98 held that an employee who submitted a bid for a food services contract in competition to her employer during a period of working notice was in breach of her employment contract. [22] The facts in that case are summarized in the headnote as follows: The plaintiff was engaged in the business of providing institutional cafeteria services. It had employed the defendant as regional director. On July 26, 1995, the plaintiff gave the defendant two months’ working notice. In the course of her duties, the defendant had compiled information used by the plaintiff in bid to provide cafeteria services to the Burnaby Correctional Centre for Women (“BCCW”). In August 1995, in the course of renegotiating the prices for the BCCW contract, the defendant had attended meeting between the plaintiff and BCCW and advised that the plaintiff should maintain its prices. The plaintiff refused and so the BCCW issued request for proposal. The defendant, through company she incorporated, submitted bid for the BCCW contract on September 25, 1995. The defendant’s company was the successful bidder. The plaintiff then commenced an action for breach of contract and breach of fiduciary duty. The trial judge had concluded that the defendant had been wrongfully dismissed when she was given only two months’ notice and found that she was entitled to four months’ notice. He also found that although the giving of unreasonable notice constituted fundamental breach of the employment contract, the defendant had not elected to treat the contract as being at an end when given notice of her dismissal. Accordingly, the employment contract had not terminated until the end of the notice period, October 7, 1995. Finally, the trial judge found that the defendant was not “key employee” and, therefore, she did not owe fiduciary duty to the plaintiff. He also found that as the defendant had only planned to carry out competing business while still employed, she had not breached her duty of good faith. [23] The Court of Appeal held that the trial judge erred in finding that the defendant’s actions had amounted to mere preparation. [24] Ryan J.A. writing for the court held that the defendant breached her duty of fidelity. [25] He stated that: [45] The relationship of employer and employee continued after Ms. Nicolas was given working notice on August 3, 1995. Her duties and obligations to her employer did not change during that time. As Madam Justice Southin summarized in Kalaman v. Singer Valve Co. (1977), 1997 CanLII 4035 (BC CA), 38 B.C.L.R. (3d) 331 (B.C.C.A.), at para. (4) During the period of working notice, the relationship of employer and employee continues. Thus, the employer continues to owe the same obligations to the employee in matters of his remuneration, provision of proper work and so forth, as he would have owed to the employee before the notice was given. For his part, the employee continues to owe to the employer the same obligations as he owed under happier circumstances (see, if any authority is needed for such trite proposition, Schilling v. Kidd Garrett Ltd., [1977] N.Z.L.R. 243 (New Zealand C.A.) If therefore, in the period of working notice, the employee does act inconsistent with the continuance of the contract of employment, he may be summarily dismissed. [46] Madam Justice Southin continued her comments at para. 101 with discussion of the duties owed by an employee to an employer: (5) The duties of an employee to an employer in the absence of an express contract are those implied by law. They have been variously put. ... The obligation is sometimes described as one of “good faith and fidelity”. In the words of Richmond P. in the Schilling case at pp. 247-248: ... It seems to be impossible to lay down any fixed test applicable to all circumstances. Some helpful passages from various judgments will be found collected by Havers J. in Sanders v. Parry [1967] WLR 753, 766; [1967] All ER 803, 808-809. One of those references is to the judgment of Lord Greene in Hivac Ltd. v. Park Royal Scientific Instruments Ltd. [1946] Ch 169; [1946] All ER 350, where Lord Greene said: It has been said on many occasions that an employee owes duty of fidelity to his employer. As general proposition that is indisputable. The practical difficulty in any given case is to find exactly how far that rather vague duty of fidelity extends (ibid, 174; 353). [47] In State Vacuum Stores of Canada Ltd. v. Phillips, 1954 CanLII 240 (BC CA), [1954] D.L.R. 621 (B.C.C.A.), Sidney Smith J.A. said this, at p. 625: The principle that an unfaithful employee may be answerable in damages is well established in the decided cases although, as Lord Greene M.R. points out in Hivac Ltd. v. Park Royal Scientific Instruments Ltd., [1946] All E.R. 330, this breach of the law may not yet have been fully explored in its remoter aspects. Bowen L.J. refers to the principle in this language in Lamb v. Evans, [1893] Ch. 218 at p. 229: “The common law, it is true, treats the matter from the point of view of an implied contract, and assumes that there is promise to do that which is part of the bargain, or which can be fairly implied as part of the good faith which is necessary to make the bargain effectual. What is an implied contract or an implied promise in law? It is that promise which the law implies and authorizes us to infer in order to give the transaction that effect which the parties must have intended it to have, and without which it would be futile.” And it is discussed in Robb v. Green, [1895] Q.B. 315, where A. L. Smith L.J. said at p. 320: “It is my opinion that this judgment should be upheld, and upon the ground that there has been breach by the defendant of his contract of service with the plaintiff. think that it is necessary implication which must be engrafted on such contract that the servant undertakes to serve his master with good faith and fidelity”. [48] The jurisprudence in this court establishes that competition with an employer will in almost all cases constitute breach of the duty of loyalty. In Cariboo Press (1969) Ltd. v. O’Connor, 1996 CanLII 1553 (BC CA), [1996] B.C.J. No. 275 (QL) (B.C.C.A.) [summarized 61 A.C.W.S. (3d) 290], Chief Justice McEachern said at paras. 19-20: The remaining question then, is whether O’Connor breached his employment duty by having secret interest in competitor from March 1, 1991, to July of the same year. Such would normally constitute conflict of interest and would be regarded as breach of the duty of loyalty and fidelity that is expected of an employee. In this respect, see Gurry’s Breach of Confidence, (Oxford: Clarendon Press, 1984) at 179, where the author says that “[t]he employee must not compete with his employer during the subsistence of the employment relationship.” think the foregoing must be an absolute, or almost absolute, prohibition. During the period in question, O’Connor was deriving benefit from both his employer and from competitor. In my view, this constitutes breach of his contract of employment. [49] In the case at bar the trial judge seemed to rest his decision in part on finding that Ms. Nicolas’s conduct in bidding on the BCCW contract while employed with Restauronics amounted only to planning carried out to establish competing business and that as such it may not have constituted breach of the duty of good faith. He then listed other factors, such as the fact that the bid was made two weeks before the contract ended, which persuaded him that her conduct in bidding against her employer was not breach of fidelity. [50] The authors of Employment Law in Canada, [3rd. ed., Vol. (Markham, Ont: Butterworths, 1998) (looseleaf)] note at §11.131: Difficulties have arisen in determining the exact point at which planning and preparation by an employee who is still employed to set up himself or herself in competition with the employer will violate his or her implied duty of fidelity ... After all, if it is lawful for an employee to engage in post-termination competition with an employer, it hardly makes sense to hold it unlawful to plan the form that such competition will take. In more recent decisions on point, the courts have held that merely planning to establish competing business does not ipso facto violate the duty, unless it is clear that the employee has already determined to abuse the employer’s confidential information or trade secrets in his or her future business or has already begun to canvass the employer’s customers or entice fellow employees of the employer to join him or her in the new business. [Corporate Classic Caterers v. Dynapro Systems Inc. (1998), 1997 CanLII 4408 (BC SC), 33 C.C.E.L. (2d) 58 (B.C.S.C.); Leith v. Rosen Fuels Ltd. (1984), C.C.E.L. 184 (Ont. H.C.J.), esp. at 195.] [Emphasis added.] [51] In my view the trial judge erred in fact in characterizing Ms. Nicolas’s actions as mere preparation. Ms. Nicolas competed with her employer for business which had been the employer’s; her placing of the bid went beyond preparation. [52] Her conduct was similar in this regard to that of the defendants in Woodrow Log Scaling Ltd. v. Halls, [1997] B.C.J. No. 140 (QL) (B.C.S.C.) [summarized 68 A.C.W.S. (3d) 454]. In that case employees submitted competing bid against their employer and did not terminate their employment until after they had secured the contract for their own benefit. The court found this to be breach of the employees’ duty of good faith and awarded damages to the employer. (D.L.R. pp. 111-113) [26] could find no case law on point in this province and am unable to distinguish Sullivan’s actions from those of the defendant in Restauronics Services Ltd. v. Forster, supra. I therefore find that Sullivan breached his duty of fidelity to the plaintiff. [27] However I am not satisfied that the plaintiff proved it would have been in a position to perform further work for PCS if Sullivan had not submitted a proposal. [28] Kusniak had telephoned the union hall and was told there were no members available for him to hire. [29] As noted above he did not return to Saskatchewan until the day before PCS required two technicians and had no employees ready to go to Rocanville. It would appear that he had abandoned any thought of continuing the contract until the end of December. Further if he had pulled employees from Saskferco he would have suffered no damage. [30] Ryan J.A. pointed out at p. 117: [73] The case law seems to indicate that where there has been misuse of confidential information or trade secrets, the employer may recover damages against the employee for profits it has lost as consequence of the breach or, instead of damages, elect to take judgment for an account of the profits the employee has obtained through the wrongful exploitation of the material in question. The employer is free to choose whichever method will result in greater compensation. (E.g., 57134 Manitoba Ltd. v. Palmer (1985), 1985 CanLII 572 (BC SC), 65 B.C.L.R. 355 at 371, C.P.R. (3d) 477 (B.C.S.C.), affirmed (1989), 1989 CanLII 2743 (BC CA), 37 B.C.L.R. (2d) 50, 26 C.P.R. (3d) 8(B.C.C.A.)). [74] In the case at bar, the appellant proved that the respondent breached her duty of loyalty by competing with it for the BCCW contract while she was in its employ. It did not prove, however, that Ms. Nicolas used any confidential information or trade secrets in doing so. [31] Sullivan was not in a managerial position with the plaintiff. He did not possess any confidential information or trade secrets. He knew nothing as to profit margins, etc. of the plaintiff. He did have the experience suggested by Fortney but I do not consider that to be confidential information or a trade secret. If there had been electricians available through the union hall they could have undertaken the work being performed by Sullivan. [32] As pointed out by Ryan J.A. the position of Sullivan when he submitted his proposal is almost identical to that of Ms. Nicolas: [76] ...Ms. Nicolas prepared her bid for the contract based on information she had obtained over the years simply by virtue of being in the business. Restauronics failed to prove that Ms. Nicholas used any confidential information or trade secrets in preparing her bid. [77] Aside from the effrontery of Ms. Nicolas’s bid, there is nothing that Restauronics can complain of in this case. [33] Ryan J.A. then held that Restauronics was not entitled to anything more than nominal damages and awarded it $500.00. I likewise hold that the plaintiff in this case is entitled to no more than nominal damages. I also award it $500.00. [34] In the result PCS is entitled to costs against the plaintiff and the plaintiff is entitled to costs against Sullivan. J. I.D. McLellan

The plaintiff claims damages against the defendants Tim Sullivan and Sullivan Instrumentation (collectively 'Sullivan') for breach of an employment contract when Sullivan was employed by the plaintiff to perform services for PCS at the mine. The issue is whether Sullivan breached his employment contract by submitting a proposal to PCS when he was still employed by the plaintiff. HELD: 1) There is nothing wrong with Sullivan setting up his corporation with a view to starting a competitive business after his employment with the plaintiff ended. An employee must be free to plan his future after his employment with his employer ends. He did not prepare the proposals during working hours. He prepared them with the assistance of his wife, when he was off work in Regina. However, it has been held that an employee who submitted a bid in competition to his or her employer during a period of working notice was in breach of the employment contract. Therefore, Sullivan breached his duty of fidelity to the plaintiff. 2) However, the Court was not satisfied that the plaintiff proved it would have been in a position to perform further work for PCS if Sullivan had not submitted a proposal. There were no union members available for it to hire. It had no employees ready to perform the contract. It would appear the plaintiff had abandoned any thought of continuing the contract until the end of December. If he had pulled employees from another contract, he would have suffered no damage. 3) Sullivan was not in a managerial position with the plaintiff. He did not possess any confidential information or trade secrets. He knew nothing as to the profit margins of the plaintiff. He did have business experience but not confidential information or a trade secret. 4) The plaintiff in this case is entitled to no more than nominal damages in the amount of $500 plus costs.

4_2007skqb397.txt

J. D.I.V. A.D. 1997 No. 532 J.C. R. IN THE QUEEN’S BENCH (FAMILY LAW DIVISION) JUDICIAL CENTRE OF REGINA BETWEEN: SANDRA DAWNE TUBELLO and ADRIANO GIAVONNO TUBELLO RESPONDENT Noel S. Sandomirsky, Q.C. for the petitioner Reginald E. Sauer for the petitioner JUDGMENT McINTYRE J. March 3, 1999 [1] The parties were married July 24, 1993. There are two children of their relationship: Travis Anthony Tubello, born October 6, 1993; Jonathan Stefano Tubello, born May 16, 1995. The petitioner also has child from her first marriage in her care, Greyson Alexander Blaha, born June 17, 1985. The primary issue is the appropriate parenting arrangement for Travis and Jonathan. [2] The parties resided at 2335 Ottawa Street, Regina, Saskatchewan, until their separation August 31, 1997. Upon separation the petitioner obtained accommodation elsewhere. The respondent continues to live in the matrimonial home. [3] It must be noted at the outset that both parties are good parents. Neither had any criticism of substance about the ability of the other to parent the children effectively. [4] During their married life together both parties were involved in the day-to-day care of the children. Apart from maternity leave the petitioner was employed outside of the home throughout the marriage. The respondent was unemployed at various times and during these periods played substantial role in the day-to-day care of the children. The respondent’s parents played significant role in providing child care services during the day, particularly when both parents were working. [5] During the first two months of the separation the children spent alternate weeks with each parent. During the day the children were looked after by their paternal grandparents with the exception of two or three days spent with babysitter. [6] On October 3, 1997, Madam Justice Dawson made the following interim order: IT IS HEREBY ORDERED AND ADJUDGED that the Petitioner and Respondent shall have interim joint custody of the children, TRAVIS ANTHONY TUBELLO and JONATHAN STEFANO TUBELLO. The Petitioner shall however provide the primary residence for the children. IT IS FURTHER ORDERED AND ADJUDGED that the Respondent shall have reasonable access to include alternating weekends from Friday evening until Sunday evening, and in the event that the Respondent is not working on the Friday prior to such weekend or the Monday following such weekend, the access shall extend to include the extra day or days. The Respondent shall further have access on each Friday that is his earned day off that is not attached to his access weekend, except when such Friday is the Petitioner’s earned day off. The Respondent shall also have the children for such earned Friday off from Thursday evening until Friday evening at 6:00 p.m. In addition, the Respondent shall have access to the children one evening per week until 8:00 p.m. The particular day of the week shall be arranged by agreement between the Petitioner and Respondent. IT IS FURTHER ORDERED AND ADJUDGED that the Respondent shall have reasonable telephone access with the children and access at such other times as the parties may agree. The parties shall share the holidays equally the particulars of the dates to be arrived at by agreement between the Petitioner and the Respondent. IT IS FURTHER ORDERED AND ADJUDGED that the paternal grandparents shall care for the two children two days per week to be such days that the child TRAVIS is not in pre-school, except in the event that either parent is caring for the children by reason of day off work. [7] Beginning in November, 1997, the children attended the YWCA Daycare three days per week, spending the remaining two days with their paternal grandparents. At this same time the petitioner became more adamant about following the letter of the access regime set out in the interim order. The respondent kept requesting additional time and the petitioner agreed the respondent could have the children every weekend. [8] When the petitioner advised the respondent she had made plans and wanted to have the children on weekend in December, the respondent agreed but wanted additional mid-week access as compensation. At this point the petitioner insisted upon strict compliance with the terms of the interim order. [9] The interim order required the respondent to pay child support of $424.72 per month together with 52% of the net cost of child care. Initially the respondent failed to pay the child support as ordered. In cross-examination he said he first paid $200.00 per month as he had decided that was what he could afford. He later increased it to $250.00 per month and testified he felt the petitioner could meet the children’s needs with the support he was paying and that the support ordered was not needed for necessities. It was only with the intervention of the Maintenance Enforcement Office that the respondent eventually began paying the full amount ordered. [10] The petitioner testified that when they initially separated they could converse to some degree about matters involving the children. However, communication became strained to the point they could not communicate directly and began communicating through e-mail at work. The petitioner says when they tried talking directly to each other they continually argued as she says the respondent was insistent upon things being done his way. [11] The respondent says the reason they went to e-mail as means of communication was because he was always getting different story from the petitioner. He said he went to e-mail so that he would have it down on paper. Indeed the respondent had printed out their correspondence by e-mail and the messages filed with the Court for the period January to May, 1998, were voluminous. [12] The petitioner rents three bedroom bungalow in Whitmore Park. Travis and Jonathan share room. Travis is now in kindergarten attending St. Matthew’s School which is about five minute walk from the house. The petitioner is employed by SaskPower. At trial she was on fulltime term position and expected to eventually revert to permanent part-time position involving three to four days per week. [13] Greyson has ADD and is on medication. He is in Grade at St. Matthew’s. The respondent expressed concern about Travis and Jonathan being left alone with Greyson. The petitioner acknowledged that Greyson was unable to look after his siblings for more than one-half hour at time. The respondent expressed concern over what appeared to be the petitioner’s plan to leave Travis and Greyson alone for an hour in the morning prior to taking the bus to school. [14] There was also evidence that Travis has an asthmatic condition. There was some suggestion that perhaps the dogs which the petitioner has could aggravate Travis’ condition. However, both parents have dogs and quite frankly am satisfied on the evidence that both parents take Travis’ condition seriously and attend to his needs appropriately. [15] It is clear the children are close to their paternal grandparents. The grandparents have provided extensive child care services in the past and are prepared to continue to do so. Mrs. Tubello Senior is 66 years of age and her husband is 73. The respondent would propose to continue to use his parents’ services extensively. The petitioner recognizes the relationship the children have with their grandparents and is supportive of that relationship. The petitioner agrees the children would continue to be looked after by the grandparents two days per week when required but believes the children benefit from an external child care service as well, such as the YWCA, so as to learn to socialize with other children. [16] Counsel for the petitioner acknowledged in argument that we have, in this instance, two very good parents who are caring, loving and responsible, and each of whom has close relationship with their children. It was suggested that in assessing the two parents and determining the appropriate parenting arrangement that the respondent’s conduct had demonstrated rigidity or inflexibility to co-parenting. It was argued that any compromise offered by the petitioner was never good enough. [17] It was argued that in determining primary residence the petitioner had been the primary caregiver. Maintaining the parenting arrangement will keep siblings together. It was argued the petitioner’s approach to balance between time spent with the paternal grandparents and developing the children’s social and interpersonal skills was in their best interests and demonstrated sensitivity to the needs of the children. Counsel suggested that while an order in which children alternate residence may be appropriate where there is common approach to co-parenting, the parties here have not demonstrated an ability to co-parent effectively as illustrated by their communication problems. Counsel was also of the view the petitioner is the more willing parent to promote maximum contact. She was the one who was always compromising. [18] The respondent argued that primary residence with their father would maintain the status quo which the children had known up until separation. It was argued the petitioner was unwilling to facilitate maximum contact as demonstrated by various e-mail messages in which she would reject requests for additional access by the respondent. It was suggested the respondent could provide greater stability and the support of an extended family. [19] Counsel argued that shared parenting in which the children would spend alternate weeks at each parent’s home remained viable option. However, the respondent acknowledged in evidence it was unlikely this type of arrangement would work in light of the inability of the parties to communicate. agree with that assessment. [20] The Divorce Act, R.S.C. 1985, c. (2nd Supp.) provides: 16.(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 things 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. [21] I accept the characterization that these are both very good parents. It is unfortunate that they could not demonstrate an ability to co-parent more effectively. They are both somewhat responsible for the present state of affairs. While the parties started out trying to co-parent and had agreed to alternate weeks, the petitioner proceeded to serve motion for interim custody just over two weeks after separation. Their subsequent conduct indicates lack of sensitivity at times, on the part of both parents, to the needs of their children and the interests of each other. There were occasions when the respondent would not be working and rather than have the children spend the day with their dad the petitioner would make them go to daycare. [22] am satisfied, however, the respondent bears the larger share of responsibility for the breakdown in communication and ultimate inability of the parties to show more flexibility. The respondent initially failed to make the child support payments as ordered. He decided he would pay what he thought he could afford. He decided to deprive his children of proper financial support and that he was providing the petitioner with enough to meet the necessities. His conduct could lead to an inference that what mattered most was the money and not his children. [23] am satisfied that the petitioner was prepared in the initial stages to be more flexible than the respondent and prepared to promote maximum contact. In the beginning the respondent’s access went beyond the minimum required by the interim order. The respondent sought, and was given every weekend. When the petitioner requested weekend for herself with the children the respondent would agree only if the petitioner gave him more mid-week access in lieu. agree with the petitioner’s characterisation that the respondent’s attitude was always to push for more. He wants to get, but is reluctant to give. [24] The respondent testified that what he wanted was “equal time”. It was evident in cross-examination of the respondent that an approximation of equal sharing of the children’s waking time when the parents are not working was insufficient as far as he was concerned. [25] The respondent took the position in cross-examination that the lack of information about health and other matters was the petitioner’s fault. It was also his position that for them to communicate better it was the petitioner who had to change her ways. The respondent acknowledges no responsibility in this regard. accept the petitioner’s observation to be correct that when they tried to talk about the children the respondent would be insistent that things be done his way. [26] I find it is in the best interests of the children that their primary residence be with their mother. She has demonstrated a greater flexibility and sensitivity to their needs. am satisfied that once the issue is resolved, the petitioner is the one who will better promote maximum contact with the other parent. The petitioner acknowledged it would be appropriate for the respondent to have time with the children two weekends out of every three. [27] The petitioner is sensitive to and supportive of the children’s relationship with the paternal grandparents. On the other hand she has appropriately identified that balance is necessary in this regard. [28] There will be an order as follows:(a) The petitioner shall parent Travis and Jonathan, who shall reside with the petitioner, except during those times when the respondent shall parent the children;(b) The respondent shall parent the children as follows:(i) Two weekends out of every three weekends commencing Friday after work to Sunday evening. In the event such weekend shall be immediately preceded or followed by statutory holiday, the respondent’s parenting time shall be extend to include the statutory holiday. In the event the respondent has an EDO on Friday preceding his weekend with the children, his parenting time shall commence on the Thursday after work; (ii) One evening during the week which evening is to be agreed and fixed by the parties; (iii) Such additional time as the parties may agree upon. (c) There shall be an equal sharing of holiday time. At this stage and given the age of the children, any one block of time during the summer shall be no more than two weeks in duration. The parties are to agree by June of each year on the division of the summer holiday period. During the holiday time of either parent with the children, such holiday time shall be exclusive; (d) The children may be cared for during the day by their paternal grandparents on Tuesday and Thursday of each week; (e) The parties shall consult with regard to all decisions regarding Travis and Jonathan, including matters affecting their health, welfare, education and religion, provided, however, that in the event of disagreement the ultimate decision shall be that of the petitioner. Both parents have the right to make inquiries and be given information concerning the health, education and welfare of the children; (f) In the event that either party intends to change his or her place of residence, he or she shall notify the other at least 60 days prior to any change and provide any information as to when the change shall occur and what the new place of residence shall be. [29] In making the order in the manner set forth have assumed that with resolution of this matter the parties can work on improving their communication and parenting in the best interests of their children. [30] With respect to child support, find the respondent to have an income of $31,800.00 based upon his current pay stub. He shall pay child support to the petitioner of $449.00 per month commencing March 1, 1999, and on the first day of each month thereafter. The petitioner has an income of $27,000.00 based upon the payroll change information submitted. Allowance has been made for union dues although the precise figure was not available. Pursuant to s. 7 of the Federal Child Support Guidelines (SOR/97-175) the respondent shall pay to the petitioner 54% of the net cost of child care expenses incurred as a result of the petitioner’s employment, upon the petitioner producing her receipts each month and advising the respondent of the net cost. In the event there are health related expenses that exceed insurance reimbursement by $100.00 annually, the respondent shall pay to the petitioner 54% of the amount which exceeds the insurance reimbursement, upon production of receipts by the petitioner. [31] Two issues were raised with respect to the division of matrimonial property. The first involved the value of the respondent’s 1988 GMC van. The only evidence tendered apart from what the petitioner might think it should be worth was an offer to purchase prepared by Capital Pontiac Buick in which they would allow trade-in value of $3,500.00 and find that to be the value of the van. [32] The second issue is whether Forenza automobile constituted matrimonial property and if so the value thereof. The vehicle was purchased by the respondent prior to marriage as work project. It was used at one point during the marriage as means of transportation. It is said to not be in running condition at this time. It is an asset in existence as of the date of application. The onus is on the respondent to establish an exemption. The evidence in this regard was sketchy and find the respondent has failed to discharge the onus upon him. find the Forenza automobile to constitute matrimonial property. The only evidence of value was $200.00 and find that to be the value. [33] Either party may speak to costs if they wish.

The primary issue was the appropriate parenting arrangement for the two children. The 1997 interim order awarded joint custody with the primary residence with the mother and reasonable access to the father including alternating weekends, reasonable telephone access and equal sharing of holidays. The father initially failed to pay child support as ordered then paid $250 per month rather than the $424.72 ordered. The parties no longer communicated directly with each other except by e-mail so that there was a record. HELD: 1)It was in the best interests of the children that their primary residence be with their mother. She had demonstrated greater flexibility and sensitivity to their needs. The father was granted access two weekends out of every three and additional time as they may agree upon. Although both were very good parents the parties had not demonstrated an ability to co-parent effectively as illustrated by their communication problems. The father's access initially went beyond the minimum required by the interim order. He failed to make support payments as ordered. The father was to pay child support of $449. Pursuant to s.7 of the Federal Child Support Guidelines he was to pay 54% of the net cost of child care expenses incurred as a result of the mother's employment and for health related expenses in excess of $100 of the insurance reimbursement upon production of receipts. 2)The automobile constituted matrimonial property and was valued at $200. 3)Either could speak to costs.

b_1999canlii12533.txt

J. 1998 Pha (PH) No. 0579 IN THE SUPREME COURT OF NOVA SCOTIA BETWEEN: GÉRARD DEVEAUX and HER MAJESTY THE QUEEN DECISION HEARD BEFORE: The Honourable Justice Frank C. Edwards PLACE HEARD: Port Hood, Nova Scotia DATE HEARD: November 19, 1999 DECISION: Written December 22, 1999 COUNSEL: Réjean Aucoin, Esq., for the Appellant Laurie Halfpenny MacQuarrie for the Respondent Edwards, J.: The issue in this appeal is whether a Provincial Court Judge is obligated to advise an unrepresented accused of his right to trial in either or both of the official languages of Canada pursuant to Section 530(1) of the Criminal Code. If so, what are the consequences of Provincial Court Judge’s failure to do so? The facts are brief and not in dispute. The Appellant appeared unrepresented by Counsel in Provincial Court in Port Hood on March 31, 1998. He was read the charge in English by the Learned Provincial Court Judge. The Appellant pleaded not guilty to Section 266 of the Criminal Code. The Provincial Court Judge set the trial for October 13, 1998, without advising the Appellant of his rights to trial in French or English pursuant to Section 531(1) and (2) of the Criminal Code contrary to Section 530(3) of the Criminal Code. The trial was held in English on October 13, 1998. At trial, the Appellant was represented by Counsel. At the conclusion of the trial, the Provincial Court Judge found the Appellant guilty of assault and imposed fine of $560.00 plus 12 months probation with conditions. The sole ground of appeal relates to the failure of the Provincial Court Judge to advise the Appellant of his rights to trial in French or English pursuant to Section 530 of the Code. Subsection 530(3) of the Criminal Code reads: “The justice of the peace or provincial court judge before whom the accused first appears shall, if the accused is not represented by counsel, advise the accused of his right to apply for an order under subsection (1) or (2) and of the time before which such an application must be made.” (Emphasis added) Subsections 530(1) and (2) of the Criminal Code read: “530(1) Language of accused On application by an accused whose language is one of the official languages of Canada, made not later than (a) time of the appearance of the accused at which his trial date is set, if (i) he is accused of an offence mentioned in section 553 or punishable on summary conviction, or (ii) the accused is to be tried on an indictment preferred under section 557, (b) the time of his election, if the accused is ordered to stand trial, if the accused elects under section 536 to be tried by provincial court judge, or (c) the time when the accused is ordered to stand trial, if the accused (i) is charged with an offence listed in section 469, (ii) has elected to be tried by court composed of judge or judge and jury, or (iii) is deemed to have elected to be tried by court composed of judge and jury, justice of the peace or provincial court judge shall grant an order directing that the accused be tried before justice of the peace, provincial court judge, judge or judge and jury, as the case may be, who speak the official language of Canada that is the language of the accused or, if the circumstances warrant, who speak both official languages of Canada. (Emphasis added) (2) Idem On application by an accused whose language is not one of the official languages of Canada, made not later than whichever of the times referred to in paragraphs (1)(a) to (c) is applicable, justice of the peace or provincial court judge may grant an order directing that the accused by tried before justice of the peace, provincial court judge, judge or judge and jury, as the case may be, who speak the official language of Canada in which the accused, in the opinion of the justice or provincial court judge, can best give testimony or, if the circumstances warrant, who speak both official languages of Canada.” Subsection 530(3) of the Criminal Code is mandatory. The word “shall” imposes statutory obligation on the trial judge or justice of the peace before whom an unrepresented accused first appears to advise him of his rights under Subsections 530(1) and (2) of the Code as the case may be. In R. v. Beaulac [1999] C.C.J. No. 25, File No. 26416, rendered May 20, 1999, Justice Bastarache of the Supreme Court of Canada states that language rights are not passive rights and these can only be “enjoyed” by the linguistic minority if the state takes positive steps to ensure that these rights are provided: “[para20] ... The objective of protecting official language minorities, as set out in s. of the Official Languages Act, is realized by the possibility for all members of the minority to exercise independent, individual rights which are justified by the existence of the community. Language rights are not negative rights, or passive rights; they can only be enjoyed if the means are provided. This is consistent with the notion favoured in the area of international law that the freedom to choose is meaningless in the absence of duty of the State to take positive steps to implement language guarantees; see J.E. Oestreich, ‘Liberal Theory and Minority Group Rights’ (1999), 21 Human Rts. Q. 108, at p. 112; P. Jones, ‘Human Rights, Group Rights, and Peoples’ Rights’ (1999), 21 Human Rts. Q. 80, at p. 83: ‘[A] right ... is conceptually tied to duty’; and B. Cholewinski, ‘State Duty Towards Ethnic Minorities: Positive or Negative?’ (1988), 10 Human Rts. Q. 344.” In Beaulac, supra, the accused’s request under Section 530(4) to be tried before judge and jury who spoke both official languages of Canada had been denied because his first trial was held in English and the accused could speak English. The Supreme Court of Canada held that under Section 430(4) his request for new trial should have been accepted. Justice Bastarache in Beaulac, supra, at paragraph 37 of the decision reviews the obligations of the Court with regards to language rights in dealing with the definition of “best interest of justice”: “[para37] In order to determine the proper definition that is applicable, the object of s. 530 must again be considered. Since the rule is the automatic access to trial in one’s official language when an application is made in timely manner, and discretionary access when such an application is not timely, the trial judge should therefore consider, foremost, the reasons for the delay. The first inquiry that comes to mind is directed at the knowledge of the right by the accused. When was he or she made aware of his or her right? Did he or she waive the right and later change his or her mind? Why did he or she change his or her mind? Was it because of difficulties encountered during the proceedings? ‘It is worth mentioning at this point that the right of the accused to be informed of his or her right under s. 530(3) is of questionable value because it applies only when the accused is unrepresented....’” (Emphasis added) Beaulac, supra, thus makes it clear that the Court must advise an unrepresented accused of his or her right to trial in either official language or, for that matter, to bilingual trial. The ability of an accused to speak or understand English is of no importance because violation of Section 530 is not procedural error. Justice Bastarache makes the following observation in Beaulac, supra, at paragraph 45: “[para45] In the present instance, much discussion was centered on the ability of the accused to express himself in English. This ability is irrelevant because the choice of language is not meant to support the legal right to fair trial, but to assist the accused in gaining equal access to public service that is responsive to his linguistic and cultural identity. It would indeed be surprising if Parliament intended that the right of bilingual Canadians should be restricted ... when in fact official language minorities, who have the highest incidence of bilingualism (84 percent for francophones living outside Quebec compared to percent for anglophones according to Statistics Canada 1996 Census), are the first persons that the section was designed to assist.” (Emphasis added) In Beaulac, supra, Justice Bastarache reviews the importance of language rights for the official language communities: “[para17] ... the new language cases are significant because they re-affirm the importance of language rights as supporting official language communities and their culture. In Ford v. Quebec (Attorney General), 1988 CanLII 19 (SCC), [1988] S.C.R. 712, at pp. 748-49, the Court wrote: ‘Language is so intimately related to the form and content of expression that there cannot be true freedom of expression by means of language if one is prohibited from using the language of one’s choice. Language is not merely means or medium of expression; it colours the content and meaning of expression. It is, as the preamble of the Charter of the French Language itself indicates, means by which people may express its cultural identity. It is also the means by which the individual expresses his or her personal identity and sense of individuality.’” Further, in Beaulac, supra, the Supreme Court of Canada in reviewing the definition of the expression “language of the accused” in the context of Section 530, also clarified the purpose of the Section which is to assist official language minorities in preserving their cultural identity: “[para34] The solution to the problem, in my view, is to look at the purpose of s. 530. It is, as mentioned earlier, to provide equal access to the courts to accused persons speaking one of the official languages of Canada in order to assist official language minorities in preserving their cultural identity; Ford, supra, at p. 749. The language of the accused is very personal in nature; it is an important part of his or her cultural identity. The accused must therefore be afforded the right to make choice between the two official languages based on his or her subjective ties with the language itself. The principles upon which the language is founded, the fact that the basic right is absolute, the requirement of equality with regard to the provision of services in both official languages of Canada and the substantive nature of the right all point to the freedom of Canadians to freely assert which official language is their own language.” (Emphasis added) In conclusion, the Trial Judge had no discretion and therefore was obligated to put to the unrepresented Appellant the right to be tried in either of the official languages of Canada or both. The failure by the Trial Judge to advise the Appellant in accordance with Section 530(3) of the Code constitutes breach of the Appellant’s rights under Sections 15, 16 and 19 of the Canadian Charter of Rights and Freedoms. Those Sections read as follows: 15(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. (2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. (1) English and French are the official languages of Canada and have equality of status and equal rights and privileges as to their use in all institutions of the Parliament and government of Canada. (3) Nothing in this Charter limits the authority of Parliament or legislature to advance the equality of status or use of English and French. 19(1) Either English or French may be used by any person in, or in any pleading in or process issuing from, any court established by Parliament. (2) Either English or French may be used by any person in, or in any pleading in or process issuing from, any court of New Brunswick. In this case, the Appellant’s mother tongue is French and the fact that the Trial Judge did not advise him of his rights to trial in his own language is not procedural error. At paragraph 24 in Beaulac, supra, the Supreme Court of Canada noted the following: ... The idea that s. 16(3) of the Charter, which has formalized the notion of advancement of the objective of equality of the official languages of Canada in the Jones case, supra, limits the scope of s. 16(1) must also be rejected. This subsection affirms the substantive equality of those constitutional language rights that are in existence at given time. Section of the Official Languages Act has the same effect with regard to rights recognized under that Act. This principle of substantive equality has meaning. It provides in particular that language rights that are institutionally based require government action for their implementation and therefore create obligations for the state: ... [para28] Section 530(1) creates an absolute right of the accused to equal access to designated courts in the official language that he or she considers to be his or her own. The courts called upon to deal with criminal matters are therefore required to be institutionally bilingual in order to provide for the equal use of the two official languages of Canada. In my view, this is substantive right and not procedural one that can be interfered with.” (Emphasis added) In Beaulac, supra, the Court concluded that violation of Section 530 constitutes substantial wrong which precludes the Appeal Court from dismissing the appeal pursuant to Section 686 of the Code: [para54] Given the nature of language rights, the requirement of substantive equality, the purpose of s. 530, as described here, and the objective of s. 686, believe that the violation of s. 530 constitutes substantial wrong and not procedural irregularity. Accordingly, s. 686(1)(b) has no application in this case and new trial must be ordered. Clearly, there must be an effective remedy available for breach of s. 530 rights. The application of the s. 686 proviso would make it illusory.” (Emphasis added) In view of the foregoing, I would allow the appeal and order a new trial. Order accordingly. J. Case No. Vol. No. Page No. GÉRARD DEVEAUX HER MAJESTY THE QUEEN 1998 Pha(PH) No. 0579 Port Hood, Nova Scotia Justice Frank Edwards LIBRARY HEADING DATE HEARD: November 19, 1999 DECISION: Written December 22, 1999 SUBJECT: Criminal law; Code Section 530(3); obligation of Provincial Court Judge to advise unrepresented accused of his right to be tried in one or both of the official languages of Canada. SUMMARY: Provincial Court Judge did not advise unrepresented accused of rights under Section 530(3). ISSUE: Whether Section 530(3) is mandatory and the consequence of failure to comply. RESULT: Section 530(3) is mandatory; new trial ordered. CASES NOTED: R. v. Beaulac [1999] C.C.J. No. 25, File No. 26416 THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT’S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS COVER SHEET.

This was an appeal to determine whether a Provincial Court judge is obliged to advise an accused of his right to a trial in either or both of the official languages of Canada, pursuant to s. 530 of the Code. Allowing the appeal and ordering a new trial, that s. 530(3) of the Code is mandatory.

8_1999canlii3182.txt

nan IN THE PROVINCIAL COURT OF SASKATCHEWAN YOUTH JUSTICE COURT Citation: 2012 SKPC 161 Date: September 26, 2012 Information: 36654171, 44662780, 44662781 Location: Saskatoon Between: Her Majesty the Queen Appearing: Ms. Dorinda Stahl Counsel for the Crown Ms. Pat Tondevold Counsel for the Defence Note: Sections 110 and 111 of the Youth Criminal Justice Act contain prohibitions against publication of name or other information that would identify someone as either young person being dealt with under the Act, or as child or young person who is victim or witness in relation to an offence alleged under the Act. SENTENCING DECISION D.C. SCOTT, INTRODUCTION [1] N.B.L. has pleaded guilty to one count of aggravated assault thereby endangering the life of Paul Fischer contrary to s. 268(1) of the Criminal Code. He has also pleaded guilty to breaching his undertaking to keep the peace and be of good behaviour, contrary to s. 145(3) of the Criminal Code and failing to comply with a condition of a youth sentence that he report to his youth worker, contrary to s. 137 of the Youth Criminal Justice Act (YCJA). [2] pre-sentence report, psychiatric report and psychological report were prepared. Sentencing submissions were made September 13, 2012; as well, the Court received as exhibits, photographs of the victim’s injuries; victim impact statements from the victim and four members of his family; the young person’s record; and letter of apology written by the young person. [3] The Crown applied under section 42(9) of the YCJA for a determination that the aggravated assault be designated as a serious violent offence. The Defence did not oppose the Crown’s request. CIRCUMSTANCES OF OFFENCES [4] In the early morning hours of June 24, 2012, the victim Mr. Fischer was awakened by voices from the alley behind his house, where his van was parked. Concerned that someone might be damaging his vehicle, he called out to them from his house, to which they replied “shut up”. In response, he went out to the alley with baseball bat, which he keeps at the back door of his residence. [5] In the alley was this young person, N.B.L., with his girlfriend S.G. and T.E.H. and others. [6] According to N.B.L.’s statement to the police, he believed Mr. Fischer struck S.G. with the bat, but later it was determined by police from S.G. that she was pushed and fell backward hitting her head. N.B.L. also advised the police that Mr. Fischer struck him on the back with the bat. The Crown disagrees but is not in position to take issue with N.B.L.’s allegation. [7] According to N.B.L.’s statement, at one point, T.E.H. was trapped on the ground under Mr. Fischer. The bat came into N.B.L.’s possession, and he used it to strike Mr. Fischer five times on his head. N.B.L. and T.E.H. also kicked Mr. Fischer when he was down. N.B.L. and the others fled, N.B.L. on his bike, leaving Mr. Fischer in the alley. [8] The complainant, Mr. Fischer suffered multiple, serious injuries to his head. His jawbone was shattered, every bone in his face was broken, he suffered brain bleed, his skull was fractured and he lost teeth. When admitted to the hospital, his condition was critical. As result of the assault, Mr. Fischer has lost the sight in his right eye and will lose the eye altogether. He has also suffered from memory loss. [9] The aggravated assault gave rise to the breach of this young person’s undertaking to keep the peace and be of good behaviour given in relation to another charge, currently set for trial. [10] As well, this young person failed to report to his youth worker during the six month period of probation order imposed December 1, 2011. CROWN POSITION ON SENTENCE [11] The Crown asks to have the Court designate the aggravated assault as serious violent offence. [12] On the aggravated assault, the Crown seeks the maximum allowable custodial sentence of 24 months and submits that 16 months of that sentence ought to be served in a secure setting, followed by 8 months of community supervision. In addition, the Crown recommends period of probation to follow. The Crown also seeks DNA order and weapons prohibition for period of years. [13] On the breach of undertaking and failure to comply with youth sentence, the Crown recommends that take into account the time spent in pre-sentence detention, now 95 days, and order period of probation, concurrent to the probation order which would follow his custodial sentence. DEFENCE POSITION ON SENTENCE [14] The Defence takes no exception to the Crown’s request for “serious violent offence” designation with respect to the aggravated assault. It is the young person’s position that he ought to receive custodial sentence of at least one year, to be followed by period of probation with credit for pre-sentence detention on the basis of two days for each day spent in detention. The Defence submits that the breaches should be disposed of by concurrent sentences of probation. [15] The Defence does not oppose the request for DNA order or weapons prohibition. 1. Is the aggravated assault “serious violent offence”? 2. What is the appropriate sentence to be imposed for this young person? 1. Is the aggravated assault “serious violent offence”? [16] “serious violent offence”, as defined in section of the YCJA, is one in which the young person causes or attempts to cause serious bodily harm. [17] The procedure for designating serious violent offence is found in section 42(9) of the YCJA as follows: On application of the Attorney General after young person is found guilty of an offence, and after giving both parties an opportunity to be heard, the youth justice court may make judicial determination that the offence is serious violent offence and endorse the information or indictment accordingly. [18] Notice of the Crown’s application was provided to the young person and the Court on June 26, 2012. [19] If the Court is satisfied beyond reasonable doubt that young person, in committing the offence, caused physical or psychological injury or hurt, which interfered in substantial way with the physical or psychological integrity, health or well-being of the victim, the Court must make the designation (R. v. D.(C.); R. v. K.(C.V.), 2005 SCC 78 (CanLII), [2005] S.C.R. 668). [20] Mr. Fischer will be significantly and permanently disabled as a result of this offence. There can be no doubt that N.B.L. caused grievous bodily harm to the victim. The harm was intentional and foreseeable and interfered in substantial way with the physical and psychological integrity, health and well-being of the victim. [21] In these circumstances, and given the young person did not oppose the Crown’s application, I find this was a serious violent offence and I designate it as such, pursuant to s. 42(9) of the YCJA. 2. What is the appropriate sentence to be imposed for this young person? OFFENDER’S PERSONAL CIRCUMSTANCES [22] At the time of the offence, N.B.L. was the age of 17 years and months. He identified himself as Metis youth. He has never lived on reserve and did not identify any connection to cultural activities. He stated he has not been subjected to racism or poverty in the past. [23] N.B.L. lived with his mother in Saskatoon, although had moved back and forth between his parents’ residences since he was nine years old. More recently, N.B.L. has not been getting along well with his father and has not seen him for more than one year, although he stated he would like to get to know his father better. His mother works outside of the home and his father is tradesperson. According to N.B.L. his sisters are positive pro-social supports to him. [24] This young person was neither working nor attending school, but indicated he had been seeking employment, however there is some question whether this is the case. He has completed his Grade education and appears to suffer from learning disability. He has been expelled from school in the past for fighting and threatening other youth and school staff. In 2009, he worked as dishwasher in local establishment. During the twelve months prior to completion of the pre-sentence report, N.B.L. attended school or worked approximately one-third of the time. [25] In the past, he has played hockey, but is no longer involved in this sport. N.B.L. has expressed some pro-criminal attitudes and he acknowledges his friends and acquaintances are older and delinquent. His goals are to complete his Grade 12 education, get job, have family and change his offending behaviour. PREVIOUS FINDINGS OF GUILT [26] This young person’s record is extensive, consisting primarily of 27 compliance related convictions. In addition, he has three previous convictions for property related matters and one of obstructing police officer and one of uttering threats. [27] He has received eleven previous sentences including five open custodial sentences, most recently in February 2012. REPORTS Pre-Sentence Report [28] According to the risk assessment in the pre-sentence report, this young person is at level risk to re-offend. Risk factors include his criminal history; lack of stable education and employment; his family circumstances; lack of positive leisure and recreational activities; his companions; pro-criminal attitude and orientation; substance use and abuse; and general anti-social pattern. [29] In addition, concerns were raised regarding this young person’s lengthy record of non-compliance; his inability to solve problems or self-manage; anger management deficits; his association with older peers; his potential learning disability; weapon use; and the severity of the violence used in this offence. [30] The pre-sentence report identified no areas of strength for this young person. Psychiatric Report [31] According to Dr. Declan Quinn, this young person’s history of impulsive and angry outbursts and defiance to authority are consistent with diagnosis of Oppositional Defiant Disorder and Conduct Disorder. Dr. Quinn confirmed this young person has previous diagnosis of ADHD for which he is currently taking medication. It was recommended N.B.L. receive programming for substance abuse problems and educational support. [32] Dr. Quinn reported that his interaction with N.B.L. demonstrated the young person’s capacity to engage respectfully and highlighted interpersonal strengths including his sense of humour. Psychological Report [33] The psychologist, Mr. Brian McDonald assessed N.B.L. to be at moderate to high level to re-offend violently, noting he is prone to conflict and capable of violence if provoked. Mr. McDonald reported that this young person’s overall functioning in the community could be viewed as poor, given his difficulties in maintaining living arrangement, his struggles with school, and substance abuse. The assessment indicated this young person experiences deep feelings of chronic anxiety and feelings of inadequacy. According to Mr. McDonald, N.B.L. requires anger management services to assist him in reducing his tendency to respond impulsively. VICTIM IMPACT [34] As result of his injuries, Mr. Fischer was hospitalized for one week, which does not adequately reflect the severity of his injuries, previously discussed. He will be permanently disabled as result of those injuries. Understandably, there has also been psychological impact for this victim. [35] Naturally, the impact extends to his family. Mr. Fischer’s sister-in-law read into the record, her victim impact statement, as well as those of Mr. Fischer’s wife and two children. His family has been traumatized, is fearful and will continue to suffer as result of this incident. Because Mr. Fischer is no longer able to operate his business, the family has sustained financial loss. [36] As the Crown stated, the impact has been profound, permanent and permeates every aspect of this family. The impact on this victim and his family has been life-altering. AGGRAVATING AND MITIGATING FACTORS [37] Aggravating factors are the egregious nature of the assault, including repeated blows with a weapon and the resulting serious harm done to the victim. At the time of this offence, the young person had been subject to release conditions in relation to a weapons offence. His record of findings of guilt, while not particularly reflective of violence, indicates lack of compliance with court orders. [38] Mitigating is the early guilty plea, thereby saving the complainant the additional anguish of having to testify at a trial. The young person was cooperative with police and provided a statement. While in pre-sentence detention, he has done reasonably well. Dr. Quinn assessed this young person as displaying some interpersonal strengths. [39] N.B.L. has expressed remorse for his actions in his apology letter submitted to the Court. The Crown asks me to consider his expressions of remorse in light of his comments made at the show cause hearing to the effect that he wished he would have killed the victim. accept that this comment is not true expression of his feelings, but rather was made out of anger at not being released and is more indicative of his impulsive angry reactions. accept his statements of remorse are genuine. SENTENCING PRINCIPLES [40] The principles enunciated in section of the YCJA reflect the importance of addressing the underlying circumstances of the young person’s offending behaviour; emphasizing rehabilitation and reintegration; and ensuring the young person is subject to meaningful consequences. The youth criminal justice system must be separate from that of adults, promoting fair and proportionate accountability consistent with greater dependency of young persons and their reduced level of maturity. [41] Section 38 of the YCJA sets out the purpose and principles of sentencing young person as follows: (1) The purpose of sentencing under section 42 (youth sentences) is to hold young person accountable for an offence through the imposition of just sanctions that have meaningful consequences for the young person and that promote his or her rehabilitation and reintegration into society, thereby contributing to the long-term protection of the public. (2) youth justice court that imposes youth sentence on young person shall determine the sentence in accordance with the principles set out in section and the following principles: (a) sentence must not result in punishment that is greater than the punishment that would be appropriate for an adult who has been convicted of the same offence committed in similar circumstances; (b) the sentence must be similar to the sentences imposed in the region on similar young persons found guilty of the same offence committed in similar circumstances; (c) the sentence must be proportionate to the seriousness of the offence and the degree of responsibility of the young person for that offence; (d) all available sanctions other than custody that are reasonable in the circumstances should be considered for all young persons, with particular attention to the circumstances of aboriginal young persons; and (e) subject to paragraph (c), the sentence must (i) be the least restrictive sentence that is capable of achieving the purpose set out in subsection (1), (ii) be the one that is most likely to rehabilitate the young person and reintegrate him or her into society, and (iii) promote sense of responsibility in the young person, and an acknowledgement of the harm done to the victims and the community. (3) In determining youth sentence, the youth justice court shall take into account (a) the degree of participation by the young person in the commission of the offence; (b) the harm done to the victims and whether it was intentional or reasonably foreseeable; (c) any reparation made by the young person to the victim or the community; (d) the time spent in detention by the young person as result of the offence; (e) the previous findings of guilt of the young person; and (f) any other aggravating or mitigating circumstances related to the young person or the offence that are relevant to the purposes and principles set out in this section. [42] The YCJA establishes separate criminal justice system for young persons, recognizing their “heightened vulnerability and reduced maturity” (R. v. R.C., 2005 SCC 61 (CanLII), [2005] S.C.R. 99). Further, young people are presumed to possess diminished moral blameworthiness or culpability for their actions (R. v. D.B., 2008 SCC 25 (CanLII), [2008] [43] According to Gray J. in R. v. C.J., 2010 SKPC 113 (CanLII), proper considerations in assessing fit youth sentence do not include the principle of deterrence, the need for retribution, or the expression of denunciation for the serious harm done (para. 36). REVIEW OF SENTENCING CASES [44] In R. v. (W.J.), 2004 SKCA (SentDig) 17, where 15 year old male, addicted to alcohol and drugs, beat his girlfriend severely and stomped on her face, sentence of months closed custody and months community supervision was upheld by the Court of Appeal, adding probation period of months. [45] In R. v. S.T., 2010 SKPC 12 (CanLII), 2010 SKPC 012, 16 year old female was sentenced to 10 months and 22 days of closed custody followed by community supervision and probation, for three charges of aggravated assault, resulting in long-term injury to the victims. [46] In R. v. C.C.B., 2010 SKPC 181 (CanLII), young person, who pleaded guilty to committing an aggravated assault and three breaches of recognizance, after striking cab driver in the head and face with machete, was given credit of months for pre-trial detention and sentenced to custodial sentence of an additional 12 months (6 closed, open) to be followed by months community supervision. The Court took judicial notice of the increasing level of violence being perpetrated by young people in the community. [47] In R. v. B.(D.C.), 2000 SKCA (SentDig) 48, 19 year old female who pleaded guilty to assault with weapon after striking her grandfather in the face with an axe was sentenced to year open custody and year probation. The Court of Appeal dismissed her appeal. [48] In R. v. M.(T.), 2009 SKCA (SentDig) 30, 17 year old with lengthy criminal record, and one of five involved in home invasion, where the occupant was badly beaten, was sentenced to 14 months secure custody, months community supervision and months probation. His sentence appeal was dismissed. [49] In R. v. M.(J.I.), 1997 SKCA (SentDig) 18, 17 year old with an extensive record and an alcohol problem, without motive attacked another person who had passed out at party, causing the victim to suffer broken arm and fractured skull. His sentence of 18 months secure custody was upheld on appeal. [50] In C.(J.), supra, where young person with no previous criminal history, was found guilty after trial of aggravated assault by wounding and disfiguring, resulting in the victim losing an eye, the Court held that period of probation for 18 months would provide meaningful consequence and best promote his rehabilitation and reintegration into society. PRE-SENTENCE DETENTION [51] As of this date, N.B.L. will have spent 95 days in pre-sentence detention. The Crown maintains that he ought to be given one day’s credit for each day spent in detention, to be taken into account only in sentencing on the breaches. The Defence submits that this young person ought to be given credit on the basis of for 1, based upon the practice in this Court. [52] The cases relied upon by the Crown are distinguishable from the case before me. In R. v. C.R.B., 2009 SKQB 176 (CanLII), where young person who pleaded guilty to manslaughter, and spent from September 2006 to May 2009 on remand in Kilburn Hall, was given six months credit for remand time, as the young person benefitted substantially from the structured lifestyle, educational and recreational programs received and because the young person agreed to waive remand credits entirely so as to be eligible for IRCS programming. [53] In S.T., supra, credit was given on the basis of 1.5 for for time served in pre-trial custody, following the decision of R. v. Flaten, 2009 S.J. No. 709 (C.A.), which dealt, in part, with remand credits available for young person sentenced as an adult. [54] The Defence argues that the practice in this Court is to grant credit on the basis of two days for each day spent in detention. In R. v. J. (T.F.), 2010 SKPC 88 (CanLII), Whelan J. held that as general rule, credit will be granted to young persons on the basis of for 1, although there will be cases where the circumstances may call for departure from general rule. In C.C.B., supra, the Court followed J.(T.F.), supra, and granted remand credit on the basis of for 1. [55] N.B.L. has spent his pre-sentence detention in secure facility. While on remand, he has done reasonably well having achieved Level before losing level because of smoking. He has been attending school during his time in detention. The Defence maintains his behaviour has improved while in detention. In addition, this young person remained in detention while three reports were prepared and my sentencing decision was completed. [56] will allow an approximate credit of for 1. N.B.L. has spent 95 days in pre-sentence detention; therefore he will receive credit for months. [57] Because have determined the aggravated assault to be serious violent offence pursuant to s. 42(9) of the YCJA, deferred custody and supervision order is not available, but neither is custodial sentence required. If custodial sentence is imposed, the maximum length of combined custody and supervision order available in these circumstances is two years (s. 42(2)(n) YCJA). [58] It is difficult to conceive of more serious aggravated assault, given the repeated blows to the victim’s head with baseball bat. Although he was with group, N.B.L. was the one who delivered the blows with the bat. In these circumstances, the harm to the victim was intentional and foreseeable. [59] It is my view a period of custody is necessary to provide meaningful consequences and to achieve meaningful progress for N.B.L. The Court has little confidence that this young person would successfully comply with conditions, if probation alone were imposed, given his history of non-compliance. [60] Further, it is my view that there is no reasonable alternative or combination of alternatives to secure custodial sentence. N.B.L. has expressed to the writer of the pre-sentence report that he was unsure he would be able to successfully complete lengthy period in open custody. [61] The writer of the pre-sentence report suggests that a period of secure custody and supervision would allow for N.B.L.’s referral to support services such as the psychologist from the High Risk Violent Young Offender Initiative, an addictions counsellor and a mentor while in custody. He would have the opportunity to work on his education and identify any special needs in this regard. His medication would be provided to him regularly and would be monitored. He could begin to address the factors which contribute to his risk to public safety. [62] Further, a lengthy sentence would allow the time frame required for N.B.L. to stabilize and engage with support services prior to his release in the community. Such sentence would assist N.B.L. in participating in programming for substance abuse, as recommended by Dr. Quinn and for anger management, as recommended by Mr. McDonald. Given N.B.L.’s extreme and violent response in this case, it is clear that intensive programming for anger management is required. It is by addressing the circumstances underlying N.B.L.’s offending behaviour that public safety can best be protected. SENTENCE [63] On the aggravated assault (Information 44662780), it is my view that the appropriate sentence is a secure custodial sentence of 24 months to be followed by a period of probation. Affording him credit of 6 months for pre-sentence detention, I impose a sentence of an additional period of 18 months, 12 months of which will be served in closed custody followed by 6 months of community supervision. [64] The period of custody and supervision will be followed by term of probation for 12 months, on the following conditions that you: 1. Keep the peace and be of good behaviour, and appear before the Youth Justice Court whenever required to do so by the Court; 2. Report forthwith following the expiry of your community supervision order and thereafter when required to do so by the Youth Worker and follow all lawful instructions of the Youth Court Worker; 3. Reside at residence designated by the Youth Worker and not change that address without the express permission of the Youth Worker or designate; 4. Abide by curfew by being in your designated residence between the hours of 10:00 p.m. and 7:00 a.m. daily, unless you have prior dated written permission of the Youth Worker; 5. Present yourself personally to any peace officer/youth worker checking on your curfew or residence; 6. Have no contact directly or indirectly with Paul Fischer or Kim Mighton or their children; 7. Not be within one-block radius of 1808-17th Street West, Saskatoon; 8. Have no contact directly or indirectly with the co-accused T.E.H.; 9. Attend school, work or day program and not miss classes except with medical note from your doctor for illness; 10. Refrain from the use, possession or consumption of alcohol and non-prescribed (illicit) drugs; 11. Attend for and participate in drug and/or alcohol addictions assessment, treatment, education, counselling as arranged by the Youth Worker and participate in treatment services as recommended by the addictions worker which may include in-patient treatment; 12. Participate in personal and anger management counselling as directed by the Youth Worker, which may include participation in the High Risk Violent Young Offender Program through Child and Youth Mental Health Services; 13. Participate in the mentorship program as directed by the Youth Worker; 14. Attend all psychiatrist appointments as directed and take all medication prescribed by your doctor or psychiatrist; 15. Not possess any weapons as defined by the Criminal Code or knives outside of your residence. [65] On the offences of breach of undertaking (Information 44662781) and breach of youth sentence (Information 36654171), impose period of 12 months probation to be served concurrent to the probation order imposed on the aggravated assault and concurrent to each other. [66] According to s. 487.051 of the Criminal Code, aggravated assault is primary designated offence and the provision of DNA sample is mandatory. Therefore, N.B.L. is ordered to provide sample of his DNA to be included in the DNA Data Bank. [67] Pursuant to s. 51(1) of the YCJA, impose mandatory weapons prohibition. Therefore, N.B.L. is prohibited from possessing any firearms, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance for period of two years. D.C. Scott,

The accused plead guilty to one count of aggravated assault, a breach of undertaking for failure to keep the peace and be of good behaviour and failing to comply with a condition of a youth sentence by failing to report to his youth worker. The victim came out of his house because he was concerned that someone was trying to damage his vehicle. The victim had baseball bat when he confronted the accused and group of young people. One of the accused's friends was pushed and fell backwards hitting his head. The accused said the victim hit him on the back with the bat. The accused got the bat and hit the victim five times in the head. The accused and another youth also kicked the victim while he was down. After the assault, the accused and his friends fled, leaving the victim in the alley. The victim suffered serious injuries including shattered jaw, every bone in his face was broken, his skull was fractured and he suffered brain bleed and lost teeth. He is also going to lose his eye, has memory loss and had to sell his business because he cannot work. The Crown applied to have the offence declared a serious violent offence and sought a sentence of 24 months, being 16 months secure custody followed by 8 months community supervision. At the time of the offence the accused was 17 years and months of age. He identified as Metis youth, but had no connection to cultural activities and claimed he had not been subjected to racism or poverty. His parents were separated. He was not attending school or working at the time of the offence. He had an extensive criminal record including 17 entries for compliance related convictions, previous property related convictions, for obstructing police offences and one for uttering threats. He had served five open custody sentences. HELD: The offence was declared a serious violent offence. The victim will be significantly and permanently disabled as a result of the offence and there can be no doubt that the accused caused intentional and grievous bodily harm to the victim. The court held that the egregious nature of the assault, serious harm done to the victim and the fact that the youth was subject to release conditions with respect to a weapons offence at the time he committed the assault were aggravating factors. In mitigation, the accused had entered a guilty plea, was cooperative with the police investigation, had done well in pre-sentence detention and had expressed remorse for his actions by submitting an apology letter to the court. The accused was sentenced to 24 months secure custody followed by 18 months probation. He was given 2:1 credit for the time he was on remand, leaving 18 months custody of closed custody to serve of which 12 months would be actual custody and 6 months would be community supervision. The court held that a lengthy custodial sentence was necessary to provide meaningful consequences and to achieve meaningful progress for the accused. A period of secure custody and supervision would give the accused access to psychological counselling and programming, an opportunity to work on his education and a chance to engage with support services in the community prior to release from custody. Given the accused's violent response in this case, it was clear that intensive programming is required.

e_2012skpc161.txt

IN THE SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: Mabey v. Mabey, 2004 NSSF 92 Date: 20041021 Docket: SFHD-027715; 1201-50517 Registry: Halifax Between: Stephen Lee Mabey v. Susan Margaret Mabey Respondent Judge: The Honourable Justice Kevin Coady Heard: September 20, 2004 in Halifax, Nova Scotia Counsel: Mark Knox, for Susan Mabey Gordon R. Kelly, for Stephen Mabey By the Court: [1] Susan and Stephen Mabey were divorced in 1996 after 20 year marriage. They have children who are adults and who have completed their post-secondary education. The oldest, Melissa, attended Boston College from 1995 to 1999. significant source of funding for Melissa’s education came from american “Federal Plus” loans. Ms. Mabey has american citizenship and as such was the only family member who could secure these loans. The balances of these loans are coming due. Ms. Mabey claims an agreement with Mr. Mabey that he would be responsible for these outstanding obligations. [2] In anticipation of collection proceedings, Ms. Mabey brought Divorce Act application against Mr. Mabey. While she cited various forms of relief, the tenor of the application was retroactive. Pre-trial conference discussions led to Ms. Mabey filing an originating notice seeking the same relief in contract. She seeks consolidation so that there would be one hearing. Mr. Mabey brings an application pursuant to Civil Procedure Rule 14.25 to strike out Ms. Mabey’s Divorce Act application. That is the application before this court. [3] Ms. Mabey’s Divorce Act application seeks relief in several forms. She seeks a variation in relation to spousal support and a retroactive child support order, both designed to cover Melissa’s past educational costs. She also seeks declaratory relief, exemplary or punitive damages and costs. The declaratory relief added nothing to the application and the punitive damages were not argued in either written or oral submissions. [4] The spousal support waiver in this couples corollary relief judgment and the lack of any material change in circumstances takes spousal support out of the picture. The essence of Ms. Mabey’s application relates to child support. The form of relief means little to Ms. Mabey. find that this application is an effort to either enforce the corollary relief judgment and amendment, or in the alternative, to retroactively vary the child support provisions. Both have as their goal to shield Ms. Mabey from Melissa’s outstanding loan obligations. [5] The proceedings in contract seek the same relief. Mr. Mabey has filed defence and added Melissa as third party. He bases this action on his position that Melissa was responsible for these loans upon graduation in 1999. Mr. Mabey is not seeking to strike out this proceeding, and in fact argues that it is the proper vehicle to resolve this issue. [6] It is helpful to review Mr. Mabey’s overall child support obligations as set out in the 1996 corollary relief judgment. He was required to pay $1500. per month for each of the other children while they were in high school. That amount was reduced to $1400. per month while they were in university. Additionally he was required to make contributions to their university education in an amount that “he shall negotiate with each such child” and in an amount that “he is in position to contribute.” Ms. Mabey makes no assertion that Mr. Mabey has failed to meet these obligations. Mr. Mabey’s income at the time ($186,000.) allowed him to honour these obligations whereas Ms. Mabey’s income ($30,000.) limited her ability to contribute to post-secondary education. [7] Mr. Mabey’s support for Melissa since 1996 is not disputed. The corollary relief judgment required him to pay $1400. per month until Melissa completed one post-secondary degree. The total of those payments is $51,800. [8] Melissa’s first “Federal Plus” loan was drawn down in 1995 in the approximate amount of $25,000. (U.S.). This loan was specifically addressed in this couples 1996 corollary relief judgment. Between 1995 and 1999 Mr. Mabey serviced this debt in the amount of $15,399. (Can.). In January, 2004 he paid off this 1995 loan in the amount of $29,719. (Can.). Between 2000 and 2002 he serviced all “Federal Plus” loans in the amount of $35,210. (Can.) He also paid off an unrelated student loan in the amount of $12,838. (Can.). Mr. Mabey’s total support for Melissa, between 1996 and 2002, amounts to $144,967. (Can.). [9] The balance of Melissa’s “Federal Plus” loans presently is $36,000. (U.S.). Ms. Mabey argues this balance is the responsibility of Mr. Mabey. He argues that the obligation belongs to Melissa. Neither Melissa nor Ms. Mabey have paid anything on the “Federal Plus” loans. Ms. Mabey paid Melissa $400. (Can.) per month while she was at Boston College. Melissa is presently employed in Boston. She is estranged from her father and denies any obligation for the outstanding balance. [10] find that the first loan in 1995 must be viewed differently than those negotiated after 1996. Paragraph 10(a) of the corollary relief judgment states: 10. Debts and Obligations (a) The Husband shall be solely responsible for debts now in his name, and the Wife shall likewise be solely responsible for debts now in her name, save only as respects liability for United States Federal Plus loan in the Wife’s name. The United States Federal Plus loan in the Wife’s name was obtained solely for purposes of education of Melissa Mabey. The principal amount of that loan as at June, 1996 is U.S. $25,194.87. Its terms are set out in the Loan Agreement between the United States Government and the Wife. The Husband herein shall, as between the parties to this Agreement, be responsible for its repayment and his sole recourse shall be against Melissa Mabey. [11] Clearly, the parties acknowledged this existing obligation and came to an agreement as to it’s repayment. The record establishes that Mr. Mabey has complied in full as of January, 2004. [12] Paragraph 6(o) of the corollary relief judgment anticipates how this couple would deal with any future costs of post-secondary education: University Expenses (o) As each Child enters post secondary education and periodically thereafter, the Father shall discuss with that Child his or her reasonable expenses based on attendance at Canadian university, and shall negotiate with each such Child such financial support as he is in position to contribute to that Child’s post secondary education. Likewise, the Mother shall contribute financially or otherwise as she can, to assist each Child’s post secondary education. Such financial support is contingent upon ability to pay, and on the assumption that such Child or Children are in continued and regular full-time attendance at university, college or vocational institution and that such Child or Children maintains passing average in each academic year. This clause satisfies me that the parties left open the subject of funding post secondary education for all of their children. [13] Paragraph 13(c) of the corollary relief judgment provides: This agreement may be amended only by further instrument in writing signed by the husband and the wife and witnessed. There has been no such instrument signed by both parties. [14] It became apparent in 1997 that Melissa would require further “Federal Plus” loans to complete her degree. Ms. Mabey was not prepared to sign for any additional loans given her financial circumstances. She looked to Mr. Mabey to indemnify her for any future obligations owed to the “Federal Plus” program. [15] On January 20, 1997 Mr. Mabey was the sole signatory to the following document: Whereas Melissa Mabey, daughter of Susan Mabey and Stephen Mabey, needs to obtain additional United States Federal Plus Loan (hereafter referred to as “Loan”) for the sole purpose of completing her undergraduate education at Boston College; And, whereas the Loan can only be obtained by citizen of the United States, And, whereas Susan Mabey as citizen of the United States qualifies to apply for the Loan on behalf of Melissa Mabey; And whereas Section 10 (a) of the Divorce Settlement Agreement dated June 1996 between Susan Mabey and Stephen Mabey sets out the following responsibility for the initial United States Federal Plus Loan: The Husband herein shall as between the parties to this Agreement, be responsible for its repayment and his sole recourse shall be against Melissa Mabey. And whereas Susan Mabey desires the same undertaking in consideration for her obtaining additional United States Federal Plus Loans for the sole purpose of Melissa Mabey completing her undergraduate education at Boston College; And whereas Melissa Mabey has acknowledged that the initial and subsequent United States Federal Plus Loans are her responsibility and given her personal undertaking to Stephen Mabey that she is responsible for the repayment of these loans; And whereas Stephen Mabey has agreed to service these loans on behalf of Melissa Mabey while she is attending university (both undergraduate and graduate); I, Stephen Mabey, agree to be responsible for the repayment of the additional United States Federal Plus Loans made to Susan Mabey for the purposes of Melissa Mabey completing her undergraduate education at Boston College and that my sole recourse shall be against Melissa Mabey. [16] On the basis of this document, Ms. Mabey secured several loans to pay for Melissa’s education. [17] Ms. Mabey takes the position that this document amounts to an amendment to the corollary relief judgment. Paragraph 13(c) requires any amendment to be signed by both parties. therefore find that this document does not alter the original agreement. No agreement can be unilaterally changed. Mr. Mabey’s document may be amenable to an argument in contract. Given this conclusion, I find that Mr. Mabey has complied with his child support obligation as set out in the corollary relief judgment and there is nothing to enforce. [18] The second aspect of Ms. Mabey’s application seeks “A retroactive child support order concerning the child, Melissa Sue Mabey ... to cover loan payments for educational purposes for the child”. In effect Ms. Mabey is seeking $36,000. (U.S.) in retroactive child support. accept Mr. Mabey’s submission that the relief sought amounts to variation application pursuant to the Divorce Act. [19] It is well established that variation, either retroactively or prospectively, requires material change in circumstances. In effect, something must have occurred that was not in the parties knowledge or contemplation at the time of the last order. Section 17(4) of the Divorce Act provides as follows: Before the Court makes variation order in respect of child support order, the Court shall satisfy itself that change of circumstances as provided for in the applicable guidelines has occurred since the making of the child support order or the last variation order made in respect of that order. [20] Section 14 of the guidelines sets forth the circumstances for section 17(4) application to vary. Section 14(a) does not apply as there has not been prior guideline order. Section 14(c) is not applicable as it was anticipated in the parties separation agreement. Section 14(b) applies to the circumstances where there is not “determination made in accordance with table”. successful variation would require “any change in the condition, means, needs or other circumstances of either spouse or of any child who is entitled to support”. [21] In Willick v. Willick, 1994 CanLII 28 (SCC), [1994] S.C.R. 670 the Court stated: In deciding whether the conditions for variation exist, it is common ground that the change must be material change of circumstances. This means change, such that, if known at the time, would likely have resulted in different terms. The corollary to this is that if this matter which is relied on as constituting change was known at the relevant time it cannot be relied on as the basis for variation. [22] In the Mabey’s case, the question for the Court is whether the additional loan payments were known or anticipated at the time of the corollary relief judgment. [23] The parties separation agreement, as incorporated in the corollary relief judgment, is comprehensive in its scope. Paragraph acknowledges that the parties have exchanged financial disclosure prior to signing the agreement. They both had independent legal advise. Child support is set forth in considerable detail and addressed support during both high school and university. Section 10 specifically addresses responsibility for the first of the “Federal Plus” loans for Melissa. [24] Section anticipates variation applications. It eliminates the coming into effect of the guidelines as basis for variation. Otherwise it captures the intent and language of section 17 of the Divorce Act. [25] What if anything has changed since 1996 that was not known or anticipated by the parties? Mr. Mabey continues in his employment with local law firm. His income has, no doubt, increased but there is no evidence of windfall. The parties anticipated budgets in 1996 and set child support levels to reflect normal increases into future years. Mr. Mabey negotiated post-secondary support for Melissa as was envisaged in Section 6(o) of the separation agreement. Ms. Mabey continues to be employed with an insurance firm and her income, means and circumstances have not materially changed. Melissa has completed her education and is employed in Boston. The post 1996 “Federal Plus” loans were negotiated as per Section 6(o) of the Separation Agreement. The evidence does not disclose any development that was not known or anticipated in 1996. [26] have considered the law on retroactive child support. In particular have considered the review of L.S. v. E.P. (1999), 1999 BCCA 393 (CanLII), 50 R.F.L. (4th) 302 (B.C.C.A.) As analysed by Williams, J. in Davey v. Davey (2002), 2002 NSSF 29 (CanLII), 205 N.S.R. (2d) 367. have considered the factors mitigating in favour of retroactive order and the factors that mitigate against. These factors are of little consequence given the limited nature of this application. The critical issue is the threshold test of material change in circumstances as defined in law. [27] am unable to determine that there has been material change in circumstances since the signing of the separation agreement. The only factor advanced in support is Melissa’s loan payments for educational purposes. The need for additional educational funding was within the parties contemplation in 1996 and was provided for in their agreement. find that Ms. Mabey cannot meet this critical requirement of Section 17 of the Divorce Act. [28] The next question is whether the above determination is sufficient to attract the “striking out” provisions of Civil Procedure Rule 14.25. [29] accept that this Rule is an exceptional form of relief and should be utilized in only the rarest of cases. In W.(W.L.) v. Nova Scotia (Minister of Community Services) (2002), 2002 NSCA 129 (CanLII), 210 N.S.R. (2d) 113 (N.S.C.A.) Roscoe J.A. stated the following concerning the test in Rule 14.25. .. It is well settled that on an application pursuant to Rule 14.25 to strike out an action, judge must proceed on the assumption that the facts contained in the pleadings are true and assuming those facts to be true, consider whether claim is made out. An order to strike out statement of claim will not be granted unless on the facts as pleaded, the action is obviously unsustainable. [30] In Saunders v. Hendry, [1999] N.S.J. No. 366 (N.S.S.C.), Rule 14.25 was considered by Goodfellow J. He stated: With respect to the application under C.P.R. 14.25, will refer to two decisions, Sherman v. Giles (1994), 1994 CanLII 3964 (NS CA), 137 N.S.R. (2d) 52 (N.S.S.C.) and the recent decision Labour Relations Board (Nova Scotia), et al v. Future Inns of Canada Inc. N.S.C.A. July 16, 1999 per Pugsley, J.A. am conscious that the law requires the exercise of discretion in determining whether or not to strike all or part of pleading is to be exercised with great care and caution and only in the most exceptional and clear circumstances. [31] In Roulston v. Nova Scotia (Attorney General), (1994) 1994 CanLII 4149 (NS CA), 130 N.S.R. (2d) 44 (N.S.C.A.) Roscoe, J.A. stated that the question under Rule 14.25 is not whether there is good defence to an action, but whether the statement of claim discloses cause of action. [32] In Hunt v. Carey Canada Inc. 1990 CanLII 90 (SCC), [1990] S.C.R. 959 the court stated that the test on an application to strike is assuming that the facts as stated can be proven, is it “plain and obvious” that the plaintiff’s statement of claim discloses no reasonable cause of action. The court further stated that neither the length or complexity of the issues, the novelty of 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 should it be struck. [33] Civil Procedure Rule 14.25 provides as follows: (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 establishes 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. [34] find that the application to vary discloses no reasonable cause of action. The total lack of any material change in circumstances is “radical defect” to proceeding to assess the matter on the so-called merits. I would not describe the application as scandalous or vexatious, but in light of my earlier findings, it can be described as frivolous. [35] There is ample evidence before the Court to determine this action is, in essence, matter of contract. The indemnity agreement may be something that Ms. Mabey can rely on as promise made to her in the event that she is called on to pay the balance of the “Federal Plus” loans. [36] The pleadings and submissions of Ms. Mabey indicate she is not concerned about the form of relief, whether it be child support order, spousal support order or judgment. This indicates to the Court that her main issue is debt and who is responsible for that debt. It is noteworthy that these debts are outstanding and neither Melissa nor Ms. Mabey have been required to pay any of these outstanding obligations. [37] am also persuaded that neither Ms. Mabey nor Mr. Mabey treated these obligations as child support. Mr. Mabey did not take the deduction as contemplated in their agreement and there is no evidence Ms. Mabey declared it as income. [38] In conclusion I am satisfied that Mr. Mabey’s application pursuant to Civil Procedure Rule 14.25 succeeds. Accordingly I will strike out Ms. Mabey’s amended application filed on January 28, 2004. [39] Mr. Mabey is entitled to costs. In the event the parties cannot agree on quantum, will accept submissions.

The husband applied to have the wife's application for retroactive child support to cover the costs of the child's post-secondary education struck as a matter more properly addressed as an issue of contract. In addition to the child support ordered in the Corollary Relief Judgment, the husband had signed a document in which he agreed to repay the costs of the daughter's American student loans (which had to be obtained in the wife's name as the wife was an American). The wife had also brought a separate action suing the husband in contract to enforce this obligation. Application granted; wife's application for retroactive child support struck as 'frivolous'. There was no evidence of the required change in circumstances necessary to support a variation application, there was nothing to enforce in the Corollary Relief Judgment as the husband had met his obligations under that Order and the agreement he signed to repay the student loans was not binding under the Corollary Relief Judgment as it was not signed by both parties.

2_2004nssf92.txt

QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2016 SKQB 293 Date: 2016 09 07 Docket: QBG 126 of 2016 Judicial Centre: Saskatoon BETWEEN: MUSBAH ABOUHAMRA and PRAIRIE NORTH REGIONAL HEALTH AUTHORITY Counsel: Christine J. Glazer, Q.C., Sheila E. Caston and Allan J. Stonhouse for the appellant Christopher C. Boychuk, Q.C. for the respondent JUDGMENT DANYLIUK J. September 7, 2016 [1] This is judgment following statute-based appeal brought by the appellant against decision of an administrative tribunal. To better organize this judgment, it has been divided into the following subsections: ITEM PARAGRAPHS Introduction .......................................................................................................................... Background Facts................................................................................................................. Regulatory Framework and Procedural History............................................................ 27 Evidence before the Tribunal .......................................................................................... 51 Issues ………...................................................................................................................... 57 Jurisdiction and Standard of Review.............................................................................. 59 Analysis …..….................................................................................................................... 68 Conclusion ....................................................................................................................... 204 Introduction [2] The appellant, medical doctor, appeals from decision of the Practitioner Staff Appeals Tribunal [Tribunal]. The appellant had his hospital privileges suspended by the respondent’s Senior Medical Officer [SMO], Dr. Prollius. The appellant contends the original suspension was done wrongfully and precipitously, and that ultimately the Tribunal made fatal errors when dealing with this matter pursuant to statutory appeal. [3] To me, it appears all parties acted in good faith throughout. Nevertheless, my task has been to review the decision of the Tribunal to determine if it made any of the numerous errors alleged by the appellant such that its decision is rendered unreasonable or, in one case, incorrect. have determined that the Tribunal did err in some respects, and that the errors lead to the granting of remedy to the appellant, that of quashing the Tribunal’s decision and full reinstatement of his privileges. Background Facts [4] significant amount of material was filed on this application, and the record from the Tribunal ran to some 2,000 pages. The facts disclosed by that record are only summarized herein. Note is made of those facts which bear upon the application and the analysis of same. The parties may rest assured that the entirety of the record has been reviewed by the court, in detail. [5] The respondent’s mandate, in the broadest terms, is to administer health care within geographic region within this province. The Regional Health Services Act, SS 2002, R-8.2 [Act] applies. The respondent operates health care facilities, including hospitals, within its region. Medical doctors such as the appellant practice within the region and at those hospitals. To do so, those doctors must firstly obtain privileges under the respondent’s Bylaws. Section 43 of The Regional Health Services Act requires every health authority to make bylaws governing the practitioner staff covering, inter alia, privileges and the matters in issue in the within appeals. [6] Dr. Abouhamra was at all material times medical doctor with specialty (he is fellow of the Royal College of Physicians and Surgeons in Obstetrics and Gynecology). He practiced at hospital in Lloydminster, Saskatchewan, facility administered by the respondent. He did so since 2003. On December 18, 2014 the SMO of the Health Authority suspended Dr. Abouhamra’s privileges. Hearings and appeals have brought the matter to this point, over one and one-half years later. [7] The appellant and his wife (Dr. Elghdewi) are both qualified to specialize in obstetrics and gynecology. Both have licensure in Saskatchewan and Alberta. Both work within the respondent Health Authority at Lloydminster. The appellant practiced there for about dozen years prior to these proceedings. [8] The review of number of patient files caused the SMO to suspend Dr. Abouhamra. These patients are referred to herein only by their initials, NW, HN, CW, EA, and CC. Each of these patients’ matters is summarized below. As well, in the Analysis section of this judgment, review of the competing evidence and conflicting medical opinions concerning the appellant’s handling of these five cases is reviewed not to conduct new review and make new findings on this appeal, but rather to assess whether the Tribunal properly analyzed the available evidence, properly conducted hearing de novo, and properly documented its decision with adequate reasons. [9] From the material before the court it appears that NW’s matter was the first to pique the SMO’s interest. NW delivered her baby in mid-September 2013 and while the forceps delivery was not entirely uneventful, neither was it remarkable from medical perspective. The baby was born healthy. However, following the delivery NW began to bleed and there were problems controlling the bleeding, problems which threatened NW’s life. This is condition known as post-partum hemorrhage [PPH]. PPH is not an uncommon condition. Various measures, largely directed by the appellant, were taken to control NW’s PPH. Other physicians (notably Dr. Elghdewi) and nurses played roles in NW’s care. The bleeding continued and Dr. Abouhamra had to perform hysterectomy on NW to stop the hemorrhaging and save her life. That surgery was successful. Dr. Abouhamra’s evidence is that this is the first and only occasion where he was required to do hysterectomy to control patient’s PPH. [10] In the case of NW, the SMO did ask for input from Drs. Abouhamra and Elghdewi as to the patient’s care and management. The SMO’s letter of October 8, 2013 also stated that formal five-patient audit would be performed. It does not appear such an audit was ever actually conducted; at least, the appellant never received the results of same from the SMO and no audit material was disclosed in the course of this application. [11] The SMO’s inquiries were written, so (with the assistance of an Edmonton lawyer) the two doctors provided written replies. Those were dated December 6, 2013. There was no further inquiry from the SMO. The appellant assumed, wrongly as it turned out, that the responses were accepted by the SMO and satisfied any concerns he might have had. [12] There was follow-up in the sense that Critical Review Conference was held on January 28, 2014. This involved the SMO, the appellant, Dr. Elghdewi, and other health professionals involved in NW’s case. Critical Review Conference is mandated by s. 58 of the Act, and is part of the quality assurance process of the Health Authority, discussed in more detail below. [13] The results of the Critical Review Conference regarding NW were not immediately made known to the appellant. His lawyer at that time sought an update from the SMO in spring 2014 and the SMO sent redacted version of that report. What was redacted included the contributing factors listed in the report. It was not until then that the full report was disclosed to Dr. Abouhamra, and it was not until later that he learned that none of that report’s suggestions were specific to his performance, but rather dealt with better team management and the overall response. [14] From the evidence it is clear that the SMO never followed up directly with the appellant regarding NW’s case, nor voiced any criticisms or concerns to him regarding the appellant’s care and management of NW. The SMO did write to the registrar of the College of Physicians and Surgeons of Saskatchewan on January 17, 2014. The SMO set out concerns as to the appellant’s management of NW’s case and that of HN, discussed below. In his correspondence to the College the SMO raised concerns as to the appellant’s overall competence and suggested he had caused an internal review or investigation to be commenced. The registrar replied to the SMO some six months later, indicating that review by the College was unlikely based on one putative lapse in judgment on the part of the appellant. She outlined to the SMO the College’s process if such review was instituted. [15] In subsequent correspondence with the College’s registrar, the SMO indicated that he had ongoing concerns with what he termed Dr. Abouhamra’s “non-compliance” with Health Authority policy. Those concerns were never identified or disclosed to the appellant. [16] The appellant was not told of this correspondence between the SMO and the College. [17] second case was identified by the SMO as warranting concern, that of HN. This was case from December 2013. It involved review of the appellant’s interpretation of fetal heart rate tracings. Those readings can be indicative of fetus in distress, and can assist physician in making the decision as to when to intervene and conduct caesarian section as opposed to allowing natural childbirth. This necessarily involves issues of patient and fetus safety. [18] In this case the appellant provided HN with all treatment options, and she indicated that she wanted natural delivery through induction. This was done. As matters eventually transpired, the child was born with significant ongoing disabilities, including cerebral palsy. [19] Among medical professionals it is widely agreed that there is much disagreement as to the interpretation of fetal heart rate tracings. One expert referred to it as being as much art as science. There is no standard by which these are interpreted. There appears to be considerable room for individual physicians’ judgment. Indeed, the experts in this very case have varying opinions as to whether and when the appellant ought to have intervened. Such diversity in opinions is not uncommon. [20] This was tragic case ending with the mother’s death. It occurred in September 2014, months after the first two cases reviewed. CW had rare condition (streptococci septicemia) that often proves to be fatal even though (or perhaps because) it has fairly low incidence. She delivered her baby and that was relatively unremarkable. There was post-partum hemorrhaging but that appears to have been properly managed. CW went on to develop this infection and she died during surgery being conducted by another physician. Dr. Abouhamra’s evidence is that this is the only death of mother he has experienced. [21] Factually, this case is somewhat discordant with the other four. There is no real nexus between this rare condition and the other situations Dr. Abouhamra was called upon to manage in the course of his ob/gyn practice in the respondent’s facility. The reviewing physicians tend to agree there was no mismanagement of CW on the part of the appellant. On any objective basis, this case cannot be taken to be supportive of the suspension of Dr. Abouhamra. [22] This was another case of post-partum hemorrhage. The patient recovered. [23] This matter was not reviewed by the respondent’s experts, only the SMO. The appellant’s experts did review this case. Everyone except the SMO found the appellant met the standard of care. There were no discussions between the SMO and Dr. Abouhamra prior to the SMO presenting his views to the respondent’s Board and Tribunal. The SMO sought and obtained no information re: CW from the appellant before the SMO formed his own opinion, leading to the interim suspension. [24] In this case the young woman was pregnant but her fetus died at 21 to 22 weeks’ gestation. The issue in this case centred on the options available to deal with this intrauterine death. Each option carried with it certain risks. Again, the respondent’s experts did not review this matter, only the SMO did so. He had several criticisms of the appellant’s management of these options. [25] The evidence from the appellant (confirmed in part by the medical file) is that all options were reviewed with CC, who elected to pursue particular course of treatment. This was done. The question is whether it was done appropriately, as during the treatment uterine rupture occurred, requiring remedial steps to safeguard the mother’s welfare. Again, medical opinion on CC is somewhat divided. [26] Upon reviewing these five cases (and some outside expert opinions obtained by the respondent) the SMO purportedly determined that the appellant’s medical performance was reasonably likely to expose patients to harm or injury, and that immediate action was required to protect future patients from that risk. Accordingly, he suspended Dr. Abouhamra on an interim basis. It must also be noted that the SMO shared the same specialty as the appellant (ob/gyn). Regulatory Framework and Procedural History Regulatory Framework [27] Both statutory and internal rules apply to the parties. As stated above, the respondent is both established (under Part III) and governed by The Regional Health Services Act. The respondent is essentially non-profit corporation established under statute. Under Part IV of this legislation it is the respondent that is responsible for delivery of health services within particular geographic region. Specifically, the respondent is empowered to conduct the “planning, organization, delivery and evaluation of health services” within its region (s. 27, Act). [28] Part VI of the Act sets out the responsibilities and powers of health care organizations. Part VII deals with governance, and some of those provisions are apposite here. Section 42 of the Act mandates that the respondent must make general bylaws and policies regarding its internal organization and proceedings, and the general conduct and management of its affairs and activities. All of this must be done consistent with ministerial guidelines. [29] Section 43 of the Act directs every regional health authority to make bylaws concerning its practitioner staff. It reads as follows: 43 Every regional health authority and every affiliate prescribed for the purposes of this section shall make bylaws governing the practitioner staff, including bylaws: (a) respecting the appointment, reappointment and termination of appointment of persons to the practitioner staff and the suspension of persons appointed to the practitioner staff; (a.1) respecting the disciplining of members of the practitioner staff; (a.2) respecting the granting of privileges to members of the practitioner staff, including the amending, suspending and revoking of privileges granted; (b) governing the classification and organization of the practitioner staff; (c) governing the appointment of committees and officers of the practitioner staff and prescribing their duties; (d) respecting any other prescribed matter. [30] In this appeal, the parties are primarily concerned with s. 43(a). The respondent has made the bylaws required by that subsection. They are based on “model bylaws” promulgated by the Ministry of Health about decade ago. These are the respondent’s Practitioner Staff Bylaws [Bylaws]. The Bylaws are integral to an assessment of the within appeal. [31] The Bylaws (s. 7) create the position of Senior Medical Officer, who is given an overarching responsibility for governing the respondent’s medical staff and practitioners. The SMO is accountable directly to the respondent’s Chief Executive Officer. Amongst the SMO’s several duties are management and administration of the medical staff (s. 7(b)); ensuring provision of quality of practitioner care (s. 7(d)); practitioner staff resource planning (s. 7(e)); professional and ethical conduct of practitioner staff (s. 7(f)); continuing practitioner staff education (s. 7(g)); and teaching and research (s. 7(h)). [32] As well, for the purposes of this appeal one of the key responsibilities of the SMO is outlined at s. 7(c) of the Bylaws: (c) with respect to the appointment, privileging and discipline, including reappointment, termination, suspension and amendment thereof, of practitioner staff members: (i) ensuring that appropriate practitioner staff appointment, privileging, reappointment and discipline processes are in place and consistent with applicable law and legislation and with these bylaws. [33] Parts VIII through of the Bylaws also merit consideration in this appeal. Part VIII deals with discipline. It provides (s. 65) for procedure to follow in the event of discipline. physician has an opportunity to address the allegations or complaints made against him or her. [34] Part IX deals with immediate suspension. Sections 76 and 77 are particularly important: 76(1) Notwithstanding anything in these Bylaws, the senior medical officer or the chief executive officer may immediately suspend the appointment of member or the member’s privileges in circumstances where in the opinion of the senior medical officer or the chief executive officer: (a) The conduct, performance or competence of member exposes, or is reasonably likely to expose patient(s) or others to harm or injury, or is reasonably likely to be detrimental to the delivery of quality patient care provided by the regional health authority; and (b) Immediate action just be taken to protect the patient(s) or others, or to avoid detriment to the delivery of quality patient care. (2) The senior medical officer or the chief executive officer shall immediately advise the member of the suspension. (3) Within forty-eight (48) hours of the immediate suspension, the senior medical officer or chief executive officer who suspended the member shall provide the member with written reasons for the suspension, which shall constitute referral under clause 65(5)(d). (4) The senior medical officer or the chief executive officer, with the assistance of the member, shall immediately appoint another member of the active medical staff to assume responsibility for the care of all of the patients of the suspended member within the facilities of the regional health authority, as required. (5) The senior medical officer or the chief executive officer shall also notify the College of the suspension. 77 The chief executive officer shall set date for hearing by the Board, to be held within fourteen (14) days from the date of the immediate suspension made pursuant to section 76, to review the immediate suspension of appointment or privileges. [35] Section 78 goes on to say that the member must have at least five days’ written notice of the Board meeting. Section 79 governs the procedure at that Board meeting, and provides inter alia that the member may examine any evidence that will be produced to the Board. Section 80 provides the Board’s options regarding the immediate suspension. The Board may overturn it; it may be confirmed for specified time; or it may be confirmed and the matter referred for discipline. Section 81 provides that the Board decision is subject to appeal to tribunal in accordance with The Regional Health Services Act. [36] Part provides for general procedures. Section 84 provides for full disclosure prior to Board hearing, subject to claims of privilege. The Board is not bound by the rules of evidence (s. 85(c)). [37] Once the Board has rendered its decision and provided the parties with copy of same, statutory appeals are available under s. 45 of The Regional Health Services Act: 45(1) person who is aggrieved by decision of regional health authority or an affiliate made in relation to the following matters may, in accordance with the regulations, appeal the decision to tribunal established by the regulations: (a) the appointment of the person to the practitioner staff or the reappointment, suspension or termination of appointment of the person; (b) the disciplining of the person as member of the practitioner staff; (c) the granting of privileges to the person as member of the practitioner staff, or the amending, suspending or revoking of privileges granted to the person. (2) Subject to the regulations, tribunal may determine its own procedures for the hearing of an appeal pursuant to subsection (1). (3) For the purposes of hearing an appeal pursuant to subsection (1), the members of tribunal have the powers conferred on commission by sections 11, 15 and 25 of The Public Inquiries Act, 2013. (4) decision of tribunal may be appealed to judge of the Court of Queen’s Bench on question of law or jurisdiction within 30 days after the date of the tribunal’s decision. [38] The s. 45 appeal to tribunal is de novo appeal hearing. It is not an appeal on the record. Curial deference is not owed and the tribunal may (indeed, must) take its own view of the evidence put before it and is not bound by the view of the Board. [39] Running somewhat parallel to all these processes are quality assurance procedures. Section 58 of the Act requires review process regarding “critical incidents”. Those incidents are inclusively (not exhaustively) defined in the legislation by incorporating the definition found in The Saskatchewan Critical Incident Reporting Guideline, 2004. They include “a serious adverse health event, including, but not limited to, the actual or potential loss of life, limb or function related to health service provided by, or program operated by, regional health authority (RHA) or health care organization (HCO).” There are six broad categories within which critical incidents are classified (and the examples following each are mine): Surgical events (e.g. things going awry during surgical or invasive procedure); Product or device events (e.g. equipment failing during patient care); Patient protection events (e.g. care team members or staff do not provide for patient’s safety, such as discharging an infant to the wrong caregiver); Care management events (e.g. misdiagnosis of patient’s condition, or the administration of the wrong test or medication); Environmental events (e.g. patient coming to harm as result of fall); and Criminal events (e.g. patient is harmed due to another person’s unlawful act, such as an assault). [40] These statutory critical incident reviews do not come about as result of concerns about the type or quality of patient care delivered by doctors or nurses. Rather, the result or outcome for the patient is assessed to determine if the matter qualifies as critical incident, and review is required. Such incidents are reported to the Ministry of Health and there is public reporting. For example, the 2013-14 Annual Report of the Ministry of Health indicates that provincially that year, 195 critical incidents were reported. [41] The holding of critical incident review does not connote any wrongful act or omission on the part of any members of the patient care team. It is, rather, part of the process by which health authorities evaluate their delivery of care to determine if adequate standards are being met, or how things could be improved. They are designed to be collaborative in nature. They are not punitive. The reports emanating from such reviews are privileged under ss. 58(5) and (6) of the Act. Procedural history [42] Dr. Abouhamra was advised of the immediate suspension on December 18, 2014. Two days later, he was served with written reasons for his suspension and notice of Board meeting as required by s. 76(3) of the Bylaws. At that same time the appellant received copies of documents which the SMO said he had relied upon in coming to the decision to levy an interim suspension. These documents included the charts for the five patients discussed above, as well as the external physicians’ opinions (Dr. van Rensburg and Dr. Almas). One document was missed but that was an oversight, swiftly remedied by the SMO. [43] As required by the Bylaws the mandatory Board meeting was scheduled for December 30, 2014. It was adjourned from time to time at the request of Dr. Abouhamra. The Board meeting was actually held May 20, 2015. The Board’s written decision was rendered May 24, 2015. Under s. 80(1)(c) of the Bylaws the Board’s decision was to confirm and continue the SMO’s immediate suspension of the appellant, and to refer this matter into the discipline process. The Board’s stated reasons for the decision were that the appellant’s practice was likely to expose patients to harm, and that immediate action was required to protect those patients. This decision is found at pages 8a to 16a of Volume of the Appeal Book, and in particular paras. 16 to 19, and 33 and 34 of the Board’s decision and reasons are referenced. [44] Dr. Abouhamra had right of appeal to the Practitioner Staff Appeals Tribunal. He exercised that right by way of written notice of appeal dated June 11, 2015. Nine grounds of appeal (with several sub-grounds) were listed. Although the Tribunal appeal is de novo hearing, the grounds of appeal were framed as errors made by the Board. As well, for expediency the parties agreed to proceed with that appeal without calling evidence. Rather, the evidence was comprised of slightly augmented record from the Board hearing. This position was set out in the appellant’s notice of appeal to the Tribunal. This may have led to some confusion within the Tribunal as to the task at hand, which will be discussed in detail below. [45] This was dealt with at the outset of the Tribunal hearing, which (due to scheduling difficulties) was not conducted until September 16, 2015. In response to an inquiry from the Tribunal Chair as to number of witnesses, appellant’s counsel advised that this was an appeal on the record for the purposes of expediting the appeal (Appeal Book, Volume V, Tribunal Transcript, pages to 8). However, in the preliminary phase of the Tribunal hearing, appellant’s counsel also made it abundantly clear to the Tribunal that the nature of the appeal remained de novo hearing (Appeal Book, Volume V, Tribunal Transcript, pages 14 to 15): MS. GLAZER: Actually, would expect that because it is trial de novo or hearing de novo that Mr. Boychuk would present first, and we would present second in the same fashion that occurred before the Board because you are essentially hearing this case anew. In my experience, that is what we have done in the past, the Health Region makes its case, and we respond. Even though it is an appeal and we are the appellant, the trial de novo contemplates hearing that is basically new hearing. So it is not that you are THE CHAIRPERSON: understand. MS. GLAZER: reviewing the decision per se, although the decision is relevant in your deliberation of whether it is correct and whether you agree with parts or any of it. The hearing should proceed in the same fashion as it proceeded before the Board. [46] While it appears from the Tribunal Transcript counsel for the respondent felt surprised by this, the appellant’s position is in accord with s. 45(3) of the Act. There would be no reason for the Tribunal to have the same powers as commission under The Public Inquiries Act, 2013, SS 2013, P-38.01, if it was not de novo proceeding. In any event respondent’s counsel quite properly agreed to proceed in that fashion before the Tribunal. [47] The Tribunal had the full record from the Board in front of it. As well, from the appellant it had second opinion (July 31, 2015 from Dr. Olatunbosun) which was designed to address the SMO’s PowerPoint presentation at the Board hearing, which the appellant and his counsel saw for the first time at that hearing. The parties also filed written briefs and made extensive oral submissions before the Tribunal. [48] The decision and reasons for the decision of the Tribunal were delivered in writing on December 22, 2015. All grounds of appeal were dismissed, and the Board decision was upheld in its entirety. [49] From that Tribunal decision the appellant has brought this appeal, by way of written notice of appeal dated January 21, 2016. [50] The appellant has been suspended continuously since December 18, 2014. Evidence before the Tribunal [51] Without at this point dissecting each piece of evidence in detail, there is some utility in identifying what the Tribunal had before it for consideration of the appeal de novo it was to address. The Tribunal had all the material from the Board hearing, plus new items. concise summary of the evidence before the Tribunal is found at para. of the Tribunal decision. [52] The Tribunal had the notice of immediate suspension dated December 18, 2014 and the notice of the Board meeting dated December 19, 2014. Medical charting and information concerning the patients discussed above were all before the Tribunal. The respondent placed numerous policies and clinical guidelines before the Tribunal. As well, the PowerPoint presentation of the SMO (which was first made at the Board hearing and had not been disclosed to the appellant prior to that hearing) was in front of the Tribunal. In response to that PowerPoint, the appellant had secured second opinion from Dr. Olatunbosun dated July 31, 2015, and that opinion was before the Tribunal. This last document was somewhat controversial, insofar as it is much less purely medical opinion than it is an opinion on the process utilized by the SMO regarding the appellant’s suspension. [53] Filed by Dr. Abouhamra was his affidavit sworn May 9, 2015, with exhibits “A” through “DD” annexed. The affidavit is extensive. It runs to 34 pages, plus exhibits. It sets out the appellant’s background, the procedural history of the matter, and the appellant’s view of the case studies relied upon by the SMO in levying the interim suspension. [54] Also of note were the expert medical opinions filed by each side. The respondent filed the medical opinions of the SMO, as well as outside expert opinions from Drs. Almas and van Rensburg. The appellant filed expert medical opinions from Drs. Olatunbosun, Elkelani and Davey. [55] As well, the respondent filed various clinical practice guidelines and rules regarding chart completion. [56] The evidence before the Tribunal was, of course, all before this court. No further evidence was (nor should have been) added in the within appeal. There was one point of contention between counsel that should be addressed. At the outset of this appeal hearing appellant’s counsel filed “Compendium” of documents. This was selection of documents, all found in the appeal book filed, to which appellant’s counsel intended to refer during the course of argument. Respondent’s counsel indicated he had not seen the Compendium prior to that day and took some exception to same. did not find any fault with appellant’s counsel regarding the use of such document. It was an aid for the court and for counsel in making argument. Rather than sift through some 2,000 pages of the appeal book to locate documents referred to from time to time during argument, the Compendium provided quick and handy reference guide to the documents counsel for the appellant felt were important to her argument. It was nothing more than that. It was not new evidence. It did not create new argument. Counsel for the appellant could have made the selfsame argument and referred to the actual appeal book. This was done for convenience. The court has taken no exception to the provision and use of the Compendium, although it is noted that in the future it would be better to provide it to counsel opposite ahead of time. [57] In his notice of appeal the appellant sets forth 13 separate grounds of appeal. have altered the order in which those grounds are dealt with, but this judgment deals with all 13 points raised by the appellant. [58] At issue in this appeal are the following matters: 1. Did the Tribunal err in law by failing to review the evidence filed on the record anew as required in an appeal by hearing de novo, pursuant to s. 11(a) of The Practitioner Staff Appeals Regulations, RRS R-8.2, Reg 5? 2. Did the Tribunal err in law by failing to provide adequate reasons for its decision? 3. Did the Tribunal err in law by upholding the suspension by failing to conduct proper evidentiary analysis of the cases under review, including the conflicting expert opinions and affidavit evidence filed on behalf of the appellant, as required by s. 80 of the Bylaws, to determine whether the suspension imposed by the SMO pursuant to s. 76 of the Bylaws should be overturned? 4. Did the Tribunal err in law in failing to apply the appropriate legal test to support an interim suspension pursuant to ss. 76 and 80 of the Bylaws? 5. Did the Tribunal err in law in finding that the relevant time for determining if the suspension was reasonable was at the date of the suspension when no response to the concerns or input from the appellant was possible having received no notice of the SMO’s concerns until receiving the reasons for suspension on December 22, 2014? 6. Did the Tribunal err in law by ignoring or failing to consider uncontroverted evidence showing lack of procedural fairness in the SMO’s investigation of the five cases under review? 7. Did the Tribunal err in law in finding that the appellant’s attendance at quality assurance meetings and/or critical incident reviews for the cases under review provided adequate notice of the SMO’s concerns and that the appellant was not entitled to any further notice or procedural fairness under the Bylaws or at law? 8. Did the Tribunal err in law in finding that the appellant’s attendance at quality assurance meetings and/or critical incident reviews for the cases under review satisfied the notice and other requirements of procedural fairness while concurrently confirming the Board’s decision not to order production of the minutes/reports generated from such meetings on the basis of the privilege asserted by the SMO? 9. Did the Tribunal err in law in finding that the requirements of procedural fairness were met by the appellant’s attendance at quality assurance meetings and/or critical incident reviews when the uncontroverted evidence is that the SMO did not himself attend the quality assurance meeting in regard to the fourth case under review and that no quality assurance meeting occurred with respect to the fifth and final case under review? 10. Did the Tribunal err in law in upholding the interim suspension in light of the conflicting expert medical opinions, including the opinions of specialists in obstetrics and gynecology who found that the appellant had met the standard of care in the cases under review? 11. Did the Tribunal err in law in ignoring expert evidence that impugned the SMO’s investigation of the appellant’s practice and competence for having failed to arrange for an external review or audit of his medical charts and practice to determine if the concerns were indeed limited to the cases under review, which involved recognized complications in complex medical cases as well as systemic issues? 12. Did the Tribunal err in law by ignoring or dismissing the uncontroverted expert evidence that all of the cases under review fell within the practice area of obstetrics, which is distinct and separate area of medical practice from that of gynecology, and failing to consider that the suspension extended to the appellant’s gynecology privileges without any evidentiary support? 13. Did the Tribunal err in law by ignoring or failing to consider the long-accepted legal principle that, where there is more than one recognized method of diagnosis or treatment, physician is not negligent in selecting one of the recognized options even though such approach may not be favoured by certain practitioners? 14. If the appellant succeeds on any of these grounds, what is the appropriate remedy? Jurisdiction and Standard of Review [59] The parties are largely in agreement as to this court’s jurisdiction and the standard of review to apply in this case. [60] agree with counsel that this court’s jurisdiction to hear this appeal emanates from s. 45(4) of The Regional Health Services Act: 45(4) decision of tribunal may be appealed to judge of the Court of Queen’s Bench on question of law or jurisdiction within 30 days after the date of the tribunal’s decision. [61] As to the standard of review apposite here, there are actually two standards which apply. [62] First, the parties agree that the reasonableness standard governs all those issues relating to matters of the Tribunal’s interpretation of the governing statute, regulations thereunder, and the Bylaws (Dunsmuir New Brunswick, 2008 SCC (CanLII), [2008] SCR 190; Saskatoon Regional Health Authority Johnson, 2014 SKQB 266 (CanLII), 454 Sask 105). This standard covers all grounds of appeal raised by the appellant except the first ground as set out above, concerning the Tribunal’s putative failure to conduct an independent review of the evidence as required in hearing de novo. [63] That ground raises an issue as to fundamental procedural fairness. The applicable standard of review is that of correctness. However, that term is perhaps somewhat difficult to use in all such situations. This was recently discussed by Justice Caldwell in Eagle’s Nest Youth Ranch Inc. Corman Park No. 344 (Rural Municipality), 2016 SKCA 20 (CanLII), 476 Sask 18. It was determined that the chambers judge erred in applying reasonableness standard to an issue of procedural fairness paras. 20 to 25). In particular, Justice Caldwell stated: 20 One problem with this first question is that in post-Dunsmuir world [Dunsmuir New Brunswick, 2008 SCC (CanLII), [2008] SCR 190] the question seems to ask whether the other Dunsmuir standard correctness is the appropriate standard of review for matters of procedural fairness. In this respect, agree with Côté J.A.’s conclusion that correctness is an “awkward word to use” in the context of procedural fairness, see: Spinks Alberta (Law Enforcement Review Board), 2011 ABCA 162 (CanLII) at para 23, [2011] 10 WWR 264. say this because procedural fairness often calls for judicial deference to certain aspects of the administrative decision under review, but the rule of law ultimately requires that superior courts still ask whether the decision is itself borne of “‘just’ exercise of power” (Dunsmuir at para 90). So, while awkward, this is best reflected in the correctness standard, see Mission Institution Khela, 2014 SCC 24 (CanLII), [2014] SCR 502; Newfoundland Nurses [2011 SCC 62]; and Canada (Citizenship and Immigration) Khosa, 2009 SCC 12 (CanLII) at para 43, [2009] SCR 339; but see the separate reasons of Stratas J.A. and Webb J.A. in Maritime Broadcasting System Ltd. Canadian Media Guild, 2014 FCA 59 (CanLII), 373 DLR (4th) 167. [64] The concept of deference while within “correctness” review was discussed in some depth in the Maritime Broadcasting System Ltd. Canadian Media Guild, 2014 FCA 59 (CanLII), 373 DLR (4th) 167, case referenced by Caldwell J.A. Justice Stratas ultimately found that while the correctness standard is most often applicable, sometimes decision based in procedural fairness needs to be reviewed on the standard of reasonableness. He noted that the tribunal was charged with fact-finding, not the reviewing court. Generally that tribunal has some expertise, and generally that tribunal has substantial leeway in its self-determination of process issues (paras. 37 to 50). Even where correctness is the standard to apply, there are some cases where procedural fairness is in issue. In Maritime Broadcasting para 77 of Justice Webb’s concurring reasons contain this quote from Re: Sound Fitness Industry Council of Canada, 2014 FCA 48 (CanLII), [2015] [42] In short, whether an agency's procedural arrangements, general or specific, comply with the duty of fairness is for reviewing court to decide on the correctness standard, but in making that determination it must be respectful of the agency’s choices. It is thus appropriate for reviewing court to give weight to the manner in which an agency has sought to balance maximum participation on the one hand, and efficient and effective decision-making on the other. In recognition of the agency's expertise, degree of deference to an administrator's procedural choice may be particularly important when the procedural model of the agency under review differs significantly from the judicial model with which courts are most familiar. [65] It is my view that this is case where the standard of correctness applies to this issue, as submitted by counsel for both parties. make this finding cognizant that the law in this area is undergoing review and possibly change, changes alluded to in the dissent of Chief Justice Richards in Eagle’s Nest. am also mindful of the discussion of applicable standards discussed in Prairie North Regional Health Authority Kutzner, 2010 SKCA 132 (CanLII), 362 Sask 214. [66] do note that this is not de novo appeal; it is clearly an appeal on the record. Presently this court cannot, willy-nilly, overturn factual findings made by the Tribunal. am not engaged in new review of the evidence and am not free to draw my own conclusions or decide the case the way think it ought to be decided if had been the original adjudicator. From the plain wording of the statute, an error of law or jurisdiction must be demonstrated by the appellant. Depending on the issue, the appellant must show the Tribunal’s decision was incorrect or unreasonable. [67] The apposite standard of review for issue is that of correctness; the balance of the issues are to be assessed on the standard of reasonableness. 1. Did the Tribunal err in law by failing to review the evidence filed on the record anew as required in an appeal by hearing de novo, pursuant to s. 11(a) of The Practitioner Staff Appeals Regulations, RRS R-8.2, Reg 5? [68] This ground of appeal is assessed on the standard of correctness. The positions of the parties are opposed, except on one point. There appears to be no contest that the appeal from the Board to the Tribunal is de novo appeal, not an appeal based purely on the record. Section 11(1) of the regulations states “An appeal to the tribunal shall be conducted as hearing de novo”. This was actually acknowledged by the Tribunal in its decision (paras. and 5) although, as discussed in more detail below, the Tribunal may have misapprehended the nature of the task actually before it. [69] On all other points within this issue, the parties are at odds. [70] The appellant submits that the Tribunal erred in not conducting its analysis as it ought to have; that is, as de novo hearing. The appellant suggests that the decision of the Tribunal is in the nature of decision based entirely on the record and the Board’s treatment of same. There was no independent analysis of the evidence conducted, nor is same readily apparent from the reasons for the Tribunal’s decision. [71] The respondent argues the appeal was heard on de novo basis. It is argued that this is explicit in the Tribunal decision. It is argued that just because the Tribunal agreed with the Board’s conclusions, this does not mean the Tribunal failed to conduct the independent analysis required. [72] Upon carefully reviewing all the arguments of the parties, conclude that the Tribunal did not properly conduct the hearing on de novo basis and that this ground of appeal must succeed. note that some aspects of this ground are intertwined with the ground alleging inadequacy of reasons. Still, they are distinct arguments and are therefore treated as such in this judgment. [73] The starting point is the nature of de novo hearing. The appellant cited Tomporowski Saskatchewan Association of Architects (1994), 1994 CanLII 3887 (SK QB), 113 DLR (4th) 693 (Sask QB). At page 698 Justice Baynton stated: [21] As the parties have proceeded on the basis of hearing de novo, need not concern myself with the “correctness” of the council’s decision, the sufficiency of the evidence presented, its jurisdiction, or other like considerations. On hearing de novo, the appeal court in effect assumes the role of the council and determines the complaints on the basis of the evidence provided on the new hearing. [Emphasis added]. [74] The nature of this type of hearing has been explored in other decisions, as follows: Green College of Physicians and Surgeons of Saskatchewan (1986), 1986 CanLII 3238 (SK CA), 51 Sask 241, (CA): In Green, our Court of Appeal held that the tribunal members ought to act “as any other tribunal involved in trial de novo and form their own conclusion as to the validity of the charge based on the evidence which is presented to them” (para. 12). As well, at para. 14 it was held that the role of tribunal in similar position to that in the instant case was not simply to review the decision below and determine if it was correct; rather, its mandate was to “independently assess the validity of the charges based upon the evidence which was presented to it”. Hicks West Coast General Hospital, 1993 CanLII 244 (BC SC): Cited by the appellant, this case suggests that de novo hearings “... are intended to overcome earlier deficiencies but they require detachment and distance from the earlier proceedings which is in question here”. The within appeal is similar. Confederation Life Insurance Company Woo (1994), 1994 CanLII 3868 (SK CA), 123 Sask 150 (SKCA), leave to appeal denied [1994] SCCA No 368 (QL): There, the Court of Appeal had ordered new trial. When that matter came before the new trial judge he found that he was bound by the factual findings of the previous trial judge unless there was evidence adduced to impel him to make new findings of fact. On appeal from that decision Justice Gerwing stated: “The first thing that must be noted is that the trial judge misapprehended the nature of trial de novo. trial de novo requires the consideration of all issues tabula rasa.” (para. 4). Re: Transglobal Communications Group Inc., 2009 ABQB 195 (CanLII), Alta LR (5th) 157: At paras 36 to 49 the court reviewed whether an appeal is on the record or de novo and what considerations are to be noted when determining this issue. Such factors include whether new evidence may be adduced, whether cross-examination is possible, whether new grounds of argument may be raised, whether the reviewing body can substitute its view for that of the tribunal below, whether an entirely new case could be presented, and whether the case proceeds on the basis of the evidence to the original tribunal but augmented by new facts or evidence. Transglobal was accepted in case cited by the appellant, Osteria De Medici Restaurant Ltd. Yaworski, 2009 ABQB 563 (CanLII), 15 Alta LR (5th) 195. Saskatoon Regional Health Authority Johnson: At para. 89, the nature of this type of appeal was found to be “a fresh hearing, to be determined on the basis of the new record put before the [Tribunal]”. In Canada Thanabalasingham, 2004 FCA (CanLII), [2004] FCR 572 the Federal Court of Appeal said this (para. 6): “I think it is important to first clarify the use of the term de novo. Strictly speaking de novo review is review in which an entirely fresh record is developed and no regard at all is had to prior decision”. As indicated in Johnson this does not necessarily mean that no prior evidence from the hearing below can be used. Indeed, to get the within matter moving, it made abundant sense to use the evidence from the Board hearing and any new evidence provided. But this does not obviate the requirement that the Tribunal view that body of evidence with fresh eyes, as opposed to simply conducting review of the decision below. Racic Moose Jaw Family Services Inc., 2015 CanLII 60882 (Sask LRB): At para. 21 Mr. Love, Q.C. stated: “The Adjudicator is required to conduct de novo hearing. de novo hearing, as the name suggests, requires that the person hearing the matter, must hear it afresh and consider only evidence presented to her at that hearing”. RK and CK Canada, 2015 FC 1304 (CanLII): The central and dispositive issue was whether the reviewing body failed to carry out true de novo hearing (as required) rather than review on the record. There, the review hearing proceeded on the record but some new evidence was accepted. It was held (para. 34) that this ought to have impelled the reviewing body to hold an entirely new hearing based on all the evidence now before it. There cannot be partial de novo proceeding. useful and concise definition of such hearing was adopted at para. 36, where de novo hearing was termed “an altogether fresh or new hearing and not limited to an inquiry to determine if the tribunal acted properly and correctly on the evidence before it”. The reviewing body is not fettered by the lower tribunal’s decision, but is free to substitute or impose its own view for that of the tribunal below, based on the entirety of the evidence presented at the new hearing. Recently, Justice Scherman dealt with the nature of de novo appeal hearing in Humboldt Electric Ltd. Saskatchewan (Workers’ Compensation Board), 2016 SKQB 234 (CanLII). At paras. 35 to 38 he notes that such hearing is to be “open-ended”, and to be ruled upon “as if the decision was being made in the original instance” (para. 35). [75] The appellant says the Tribunal in this case did not conduct the appeal in this way, and therefore failed to conduct it properly. The respondent says the opposite. [76] As alluded to above, from the reasons themselves there appears to have been some confusion within the Tribunal itself as to the nature of the appeal before it. [77] The Tribunal cited s. 11(1) of the Regulations at para. of its decision and noted that the appeal was proceeding de novo. However, in the very next paragraph the Tribunal makes an equivocal, and for the purposes of the within appeal troubling, statement as to what was transpiring: 5. There were no objections by either party to this appeal with respect to the Tribunal’s jurisdiction to hear this matter. There was also no objection by either party that the nature of this appeal is hearing de novo pursuant to Section 11(1) of the Regulations; however, both parties agreed to proceed with hearing on the record and no witnesses were called as it was an expedited appeal (as requested in the Notice of Appeal). Both the Respondent and the Appellant were represented by counsel. Both counsel agreed to proceed with the appeal by providing oral and written submissions to the Tribunal and no viva voce evidence was presented to the Tribunal on the hearing date of September 16, 2015. [Emphasis added]. [78] This statement is not entirely accurate, and may well be reflective of misapprehension by the Tribunal members of the task before them and the nature of the appeal being argued. say this for two reasons. [79] First, while it is technically correct that “no viva voce evidence was presented” it is incorrect that no new evidence was presented. There was no dispute that the appellant herein was entitled to file the July 31, 2015 opinion of Dr. Olatunbosun. That letter dealt with process issues and with the PowerPoint presentation to the Board below that the appellant and his lawyers first saw at that Board hearing, and had no opportunity to rebut. Inarguably that was new evidence. Having accepted new evidence (see para. 6(h) of the Tribunal decision), albeit entirely in writing, the Tribunal was clearly operating in the territory of de novo hearing and was obligated to reassess the entirety of the evidence now before it, both old and new. The decision as whole and as set out on this specific point at para. discloses an error in appreciating the evidentiary situation now before the Tribunal. [80] Secondly, it was incorrect for the Tribunal to conclude that both parties agreed to proceed as an appeal on the record. While appellant’s counsel initially used that phrase during the preliminary discussions in front of the Tribunal, she was abundantly clear just moments later. These facts are set out above but bear repeating. In response to an inquiry from the Tribunal Chair as to number of witnesses, appellant’s counsel advised that this was an appeal on the record for the purposes of expediting the appeal (Appeal Book, Volume V, Tribunal Transcript, pages to 8). However, in the preliminary phase of the Tribunal hearing, appellant’s counsel also made it abundantly clear to the Tribunal that the nature of the appeal remained de novo hearing (Appeal Book, Volume V, Tribunal Transcript, pages 14 to 15): MS. GLAZER: Actually, would expect that because it is trial de novo or hearing de novo that Mr. Boychuk would present first, and we would present second in the same fashion that occurred before the Board because you are essentially hearing this case anew. In my experience, that is what we have done in the past, the Health Region makes its case, and we respond. Even though it is an appeal and we are the appellant, the trial de novo contemplates hearing that is basically new hearing. So it is not that you are THE CHAIRPERSON: understand. MS. GLAZER: reviewing the decision per se, although the decision is relevant in your deliberation of whether it is correct and whether you agree with parts or any of it. The hearing should proceed in the same fashion as it proceeded before the Board. [Emphasis added]. [81] am unsure how appellant’s counsel could have put her position more clearly than this. The Tribunal was specifically advised that its proceeding was “basically new hearing”, that it was not simply “reviewing the [Board] decision per se”, and that the hearing ought to follow the same process as before the Board, with the respondent herein going first to prove its case and the appellant going second to respond to that case. For the Tribunal to say that the Regulations make this de novo appeal but that the parties agreed to proceed with hearing on the record is more than mere misnomer, it is an error on the face of the Tribunal’s record. [82] Further, the respondent argues that the Tribunal decision is framed the way it is because that is how the appellant framed the issues in its notice of appeal to the Tribunal. The respondent states the Tribunal was therefore simply responding to the grounds of appeal as framed by Dr. Abouhamra. With respect, that is not an answer to the concerns of the appellant. First and foremost, the Tribunal (indeed, any judge or adjudicator) has an overarching duty to “get it right”. This pertains irrespective of how counsel frame or even argue the issues. For example, if lawyer argues point but fails to refer to the leading authority on that point, the adjudicator still has to deal with that authority. Similarly, in jury trial the trial judge has gatekeeping function to ensure the jury only hears admissible evidence, even if one lawyer fails to object to same. The fact that the appellant may have chosen to frame the grounds of appeal in certain way did not eliminate the duty of the Tribunal to conduct and rule upon this appeal in de novo fashion. [83] As well, from the Tribunal’s own decision, it is clear the members did not feel constrained by the manner in which the appellant framed the issues or grounds. At page 15 of the Tribunal decision, para. E.a (just prior to para. 26), the Tribunal chooses to actually reword the ground of appeal advanced by Dr. Abouhamra. The Tribunal was, or ought to have been, alive to the notion that it was not bound to decide the case on the strict wording or manner in which the appellant had chosen to cast the grounds of appeal. [84] Finally, and most importantly, the Tribunal decision as whole has been analyzed from the perspective of determining whether the Tribunal truly conducted the matter as de novo hearing, or considered the appeal as review of the Board decision. For the following reasons have determined the Tribunal erred by considering the matter as review: (a) As referenced above, paras. and of the Tribunal decision disclose an error as to the manner in which the Tribunal viewed the evidence. The Tribunal did not overtly refer to the July 31, 2015 opinion of Dr. Olatunbosun as new evidence. Clearly it was. This ought to have triggered for the Tribunal consideration of its role as fresh reviewer of the totality of the evidence adduced before it. (b) The decision does not disclose genuine and fresh review of all the evidence. major example of this is the failure to conduct an analysis of the competing expert opinions. Those opinions do not agree in all instances. There is duty on an adjudicator to resolve conflicts within the evidence and explain how they were resolved, and why some evidence is preferred over other evidence. While this point ties into the “adequacy of reasons” and “wrong time focus” issues explored below, the Tribunal decision also does not illustrate that the required independent analysis of all of the evidence was actually conducted by the Tribunal. (c) It is beyond dispute that the Tribunal had at least one piece of new evidence before it, evidence that the Board did not have. That is the July 31, 2015 opinion of Dr. Olatunbosun. The Tribunal mentions the existence of that piece of evidence at para. 6(h) of its decision. That is all the Tribunal did with that evidence. For example, para. 37 of the Tribunal decision deals with procedural aspects relating to the suspension of the appellant, yet the opinion of Dr. Olatunbosun is not even discussed in the decision. In fact, other than noting the existence of this new evidence at para. 6(h), that new opinion is not discussed or dealt with by the Tribunal. This is demonstrative of the fact that the Tribunal misapprehended its scope of review and treated the appeal purely as an appeal on the record instead of the de novo appeal, the fresh approach, that it was supposed to be. (d) The appellant forcefully makes the point that the construction of the Tribunal decision illustrates the errors in its mode of analysis of the evidence. Paragraph 29 of the Tribunal decision is cited as an example. There, the Tribunal used language such as “the Board found” or “the Board noted”. This is not an argument of form over substance. Rather, it is an analysis that suggests the Tribunal was simply conducting review of whether the Board’s analysis, findings and reasons were appropriate. agree fully with this argument of the appellant. Paragraph 29 is only one example of this mode of proceeding by the Tribunal. review of the entire decision, especially paras. 26 to 45, reveals the flaws in the Tribunal’s underlying supposition when conducting its analysis. These flaws are explored in detail at paras. 92 to 94 of the appellant’s factum filed herein. agree with the appellant’s analysis of the impugned decision. There is nothing in the decision to indicate the Tribunal undertook an independent review of the evidence before it in order to reach its own conclusions and make its own findings based on that evidence. There is every indication it simply reviewed the Board’s conclusions. The Tribunal missed the point that it owed no deference to the Board, nor on this type of appeal is there any assumption that the Board was correct and the appellant had the onus of convincing the Tribunal otherwise. That is not how it works on this type of appeal. (e) That the Tribunal had no appetite for an in-depth review of the evidence is reflected elsewhere in its decision. At para. the Tribunal gently chastised counsel for the lack of organization of materials presented, noting in footnote that the presentation lacked consistency. After noting the lack of organization in the material, the Tribunal concluded by saying “As result, it became challenging task for the Tribunal to set out an accurate chronology of events leading up to the suspension of Dr. Abouhamra, which therefore necessitated lengthy and in-depth review of the materials prior to reviewing same for the purposes of writing this decision”. This was de novo appeal. “lengthy and in-depth review” of the evidence before the Tribunal (not merely the material the SMO had at the time of suspension, or even the material before the Board) was clearly called for in this case. The balance of the decision does not reveal that such detailed review of all of the evidence before the Tribunal was conducted. As this was de novo hearing, it ought to have been done. (f) From the decision itself, there is no indication that the Tribunal did what the legislation directs it to do: conduct the hearing as de novo matter; consider all the evidence before the Tribunal, not limiting same; and deciding independently whether the SMO’s decision to suspend should be upheld. Instead, it merely conducted review of the Board’s decision for error, effectively placing the onus on the appellant. (g) The failure of the Tribunal to conduct this matter as fresh review of the evidence and draw its own conclusions from that evidence compounds, and is compounded by, the issue of the alleged error as to timing. The Tribunal concluded the relevant time for its review was as at the date the SMO decided to suspend, and that the evidence before the SMO was what the Tribunal was to focus upon. As will be seen below this was wrong, but that erroneous conclusion informed perhaps misinformed the Tribunal’s view of the manner in which it was to analyze the evidence. [85] In the course of oral argument respondent’s counsel conceded that the Tribunal was obliged to consider all the evidence before it when assessing whether the SMO had properly applied the test for interim suspension under s. 76 of the Bylaws. This was an entirely appropriate position to take, given the law. The respondent went on to argue that the Tribunal’s review of the evidence was sufficient. respectfully disagree. [86] It is clear from plain and full reading of the Tribunal decision that it made an error in the way the hearing was conducted and the way the evidence was analyzed. The Tribunal took the view that deference was owed to the Board; that it was the appellant’s task to convince the Tribunal that the Board had erred; that the Tribunal only had to look at the evidence before the Board or (worse yet) before the SMO at the time of suspension; and that it was not obligated to deal with and reconcile the conflicting expert evidence independent of any prior assessment of same. All of those constituted errors on the part of the Tribunal. [87] As a result, I conclude the Tribunal erred in failing to conduct the hearing and analyze all the evidence before it as a de novo hearing. 2. Did the Tribunal err in law by failing to provide adequate reasons for its decision? [88] This ground of appeal is listed as ground 4(l) in the notice of appeal. The appellant takes the position that the reasons of the Tribunal are wholly inadequate. In particular, the appellant argues the Tribunal gave no reasons or insufficient reasons for the following: (a) Rejecting or ignoring the appellant’s evidence as to lack of procedural fairness in the pre-suspension period; (b) Dismissing expert evidence (i.e. the July 31, 2015 Dr. Olatunbosun opinion letter) and legal submissions as to the appropriate process to follow where physician’s competence has been impugned; (c) Rejecting or ignoring evidence, including expert evidence, for all five of the cases reviewed and failing to determine the factual basis (or lack of same) for the SMO’s decision to suspend the appellant; (d) Failing to analyze or address the appellant’s submissions on issues that were central to the disposition of the appeal. [89] These arguments of the appellant presuppose that some of the other grounds are made out, such as those alleging lack of procedural fairness or notice on the part of the SMO. As will be discussed below, find that not all of those grounds succeed. In analyzing this specific ground of appeal have been careful to make this differentiation. [90] The respondent argues that the reasons of the Tribunal were adequate, insofar as they disclose the rationale for the Tribunal reaching its decision. [91] It is my finding that the Tribunal’s reasons were not sufficient in these circumstances. Again, there is an interplay between this ground of appeal and several others. [92] The appellant cites Casavant Saskatchewan Teachers’ Federation, 2005 SKCA 52 (CanLII), 262 Sask 195, to support its argument that the reasons of the Tribunal are inadequate. agree that the instant case is akin to Casavant, insofar as there is an obligation on the Tribunal to provide “a meaningful explanation of the basis and rationale of the ... decision” (para. 29). further agree that the purposes outlined at paras. 31 to 35 are to be engaged by the Tribunal’s work. Full written reasons inject rigour into the decision-making process; they elevate confidence in the integrity of that process; they allow non-parties to assess and modify their own conduct to bring it in line with the law; and they allow for an appropriate appeal process, enabling an appellate reviewer to understand and potentially correct the decision. [93] If discipline committee must provide full and meaningful reasons, surely the Tribunal shares such an obligation. The effect of immediate (and then extended) interim suspension on physician seems obvious but is specifically recognized in the case law. Cited by the appellant in this regard is Trinh Acadie-Bathurst Health Authority, 2005 NBQB 103 (CanLII), 287 NBR (2d) 150, where at paras. 33 and 34 it was stated: [33] Clearly for any medical doctor, the loss of hospital privileges is very serious. It may mean the loss of some or all of his practice or income. It will most certainly affect his professional standing which may be very difficult to re-establish. The loss or restriction of privileges can have devastating effect on the personal and professional life of medical doctor. [34] The consequences for Dr. Trinh are no exception. Clearly any suspension or revocation of his hospital privilege could have grave and permanent consequences on his professional career, as well as on his person life. [94] There is no doubt that Dr. Abouhamra is in much the same position. At the time of this writing he has been on “interim” suspension for over 18 months. The court accepts his lawyers’ submissions that this must have wreaked havoc on his life. That is not the test on any of these grounds of appeal. Rather, this highlights the need for the Tribunal to provide clear and cogent reasons for its decision. [95] Three Supreme Court of Canada cases are seminal regarding the sufficiency of reasons for decision: Sheppard, 2002 SCC 26 (CanLII), [2002] SCR 869; Braich, 2002 SCC 27 (CanLII), [2002] SCR 903; and Dinardo, 2008 SCC 24 (CanLII), [2008] SCR 788. In Sheppard (para. 28) the court commented on factors that might point to inadequate reasons, including the failure of the decision to give basis for resolving significant inconsistencies or conflicts in the evidence. Given the conflict amongst the experts, discussed below, the Tribunal decision fails to adequately explain the findings made. While the Tribunal decision in this regard is partially explained by the fact that it selects the information before the SMO at the time of the decision to suspend as the operative moment (which is an error in itself) there is further meaningful discourse as to the conflicts in the expert evidence that was before the Tribunal. [96] In Dinardo Justice Charron stated: 24. In R. v. Sheppard, ... this Court confirmed that courts have duty to give reasons. Reasons serve many purposes; in particular, they explain the court’s disposition of the case and facilitate appellate review of findings made at trial. The content of the duty will, of course, depend upon the exigencies of the case. As this Court has noted, “the requirement of reasons is tied to their purpose and the purpose varies with the context” (Sheppard, at para. 24). 25 Sheppard instructs appeal courts to adopt functional approach to reviewing the sufficiency of reasons (para. 55). The inquiry should not be conducted in the abstract, but should be directed at whether the reasons respond to the case's live issues, having regard to the evidence as whole and the submissions of counsel (R. v. D. (J.J.R.) (2006), 2006 CanLII 40088 (ON CA), 215 C.C.C. (3d) 252 (Ont. C.A.), at para. 32). An appeal based on insufficient reasons will only be allowed where the trial judge's reasons are so deficient that they foreclose meaningful appellate review: Sheppard, at para. 25. 26 At the trial level, reasons “justify and explain the result” (Sheppard, at para. 24). Where case turns largely on determinations of credibility, the sufficiency of the reasons should be considered in light of the deference afforded to trial judges on credibility findings. Rarely will the deficiencies in the trial judge's credibility analysis, as expressed in the reasons for judgment, merit intervention on appeal. Nevertheless, failure to sufficiently articulate how credibility concerns were resolved may constitute reversible error (see R. v. Braich, ... at para. 23). As this Court noted in R. v. Gagnon, [2006] S.C.R. 621, 2006 SCC 17 (CanLII), the accused is entitled to know “why the trial judge is left with no reasonable doubt”: Assessing credibility is not science. It is very difficult for trial judge to articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events. That is why this Court decided, most recently in H.L., that in the absence of palpable and overriding error by the trial judge, his or her perceptions should be respected. This does not mean that court of appeal can abdicate its responsibility for reviewing the record to see whether the findings of fact are reasonably available. Moreover, where the charge is serious one and where, as here, the evidence of child contradicts the denial of an adult, an accused is entitled to know why the trial judge is left with no reasonable doubt. [paras. 20-21] 27 Reasons “acquire particular importance” where the trial judge must “resolve confused and contradictory evidence on key issue, unless the basis of the trial judge’s conclusion is apparent from the record” (Sheppard, at para. 55). Here, the complainant’s evidence was not only confused, but contradicted as well by the accused. As I will now explain, it is my view that the trial judge fell into error by failing to explain how he reconciled the inconsistencies in the complainant's testimony on the issue of whether she invented the allegations. also conclude that the trial judge's failure to provide such an explanation prejudiced the accused’s legal right to an appeal. [Emphasis added]. [97] The Saskatchewan Court of Appeal has dealt with sufficiency of reasons, albeit in the criminal law context, in C.R.C., 2009 SKCA 13 (CanLII), 324 Sask 37. The accused’s appeal was allowed based on the trial judge giving insufficient reasons for the conviction: [25] No issue is taken with the principle trial judge is not obligated to comment on every aspect of the evidence, nor is trial judge required to expressly indicate all relevant considerations which were taken into account. trial judge does not err simply because he or she does not give reasons for deciding one way or the other on problematic points. Further trial judge is not required to demonstrate he or she knows the law and has considered all aspects of the evidence; nor is the trial judge required to give reasons so detailed as to allow an appeal court to retry the entire case. There is also no need to prove the trial judge was alive to and considered all of the evidence or answer each and every argument of counsel. However, the trial judge is required to give sufficient reasons to allow for meaningful appellate review. failure to sufficiently articulate how credibility concerns were resolved may constitute reviewable error. This requirement for sufficient reasons must always be considered in the context of the high level of deference to be granted to trial judges in their assessment of credibility. The requirement for sufficient reasons is also not an open “invitation to an appellate court to substitute its perceptions of what should have been the factual and credibility findings of the trial judge when reasonable basis for the trial judge’s conclusions exists”. [26] However, the Appellant is entitled to know “why the trial judge is left with no reasonable doubt”. In R. v. D.(S.J.), the appellant was convicted of sexual touching in relation to his adopted daughter. The trial judge did address some of the inconsistencies in the complainant's evidence and whether she had motive to fabricate, but failed to analyze the appellant's evidence or explain why she rejected his denials that the incidents occurred. In setting aside the convictions and ordering new trial, the Court of Appeal said: [23] Sheppard warns against conclusory credibility findings. Implicitly it cautions that credibility findings without explanations for them run the risk of losing the appellate deference they ordinarily command. As hard as it may sometimes be to explain why the evidence of one witness is accepted and the evidence of another rejected, Sheppard calls on trial judges to try to do so. ... In some cases judge’s first instincts about case, even judge’s initial credibility assessments, may not stand up to reasoned analysis. Putting pen to paper articulating the “path” to one's findings may disclose flaw in one’s reasoning. In this sense, writing reasoned reasons is safeguard against both wrongful convictions and acquittals. [27] In Dinardo the Supreme Court referring to Sheppard said: [27] Reasons “acquire particular importance” where the trial judge must “resolve confused and contradictory evidence on key issue, unless the basis of the trial judge’s conclusion is apparent from the record” (Sheppard, at para. 55). Here, the complainant’s evidence was not only confused, but contradicted as well by the accused. As I will now explain, it is my view that the trial judge fell into error by failing to explain how he reconciled the inconsistencies in the complainant's testimony on the issue of whether she invented the allegations. also conclude that the trial judge’s failure to provide such an explanation prejudiced the accused’s legal right to an appeal. [98] As well, in Major, 2004 SKCA 32 (CanLII), 241 Sask 306, Tallis J.A. provided cogent and concise commentary on the extent of reasons at para. [12] In our opinion, the extent and substance of the reasons must depend upon the circumstances. They need not be elaborate or lengthy in every case. But they should be such as to tell person in broad terms why the decision was reached. What will be sufficient to constitute the reasons is matter distinct from the obligation to give reasons. There can clearly be circumstances where lengthy reasons may be necessary to address the issues raised by evidence and application of the law to the evidence. In other circumstances the issue may require only minimal explanation. [Emphasis added]. [99] Further, in May of this year the Court of Appeal rendered its decision in Pelletier, 2016 SKCA 62 (CanLII). There, the trial judge’s reasons were held to be sufficient but in writing for the Court at para. 38 Justice Lane provided an important reminder of the Sheppard approach to testing for sufficiency of reasons: [38] trial judge is not required to explain every indicia of reliability or explain away every indicia of unreliability. am satisfied the trial judge’s reasons meet the test for sufficiency as set out in Sheppard: D) Proposed Approach [55] My reading of the cases suggests that the present state of the law on the duty of trial judge to give reasons, viewed in the context of appellate intervention in criminal case, can be summarized in the following propositions, which are intended to be helpful rather than exhaustive: 1. The delivery of reasoned decisions is inherent in the judge’s role. It is part of his or her accountability for the discharge of the responsibilities of the office. In its most general sense, the obligation to provide reasons for decision is owed to the public at large. 2. An accused person should not be left in doubt about why conviction has been entered. Reasons for judgment may be important to clarify the basis for the conviction but, on the other hand, the basis may be clear from the record. The question is whether, in all the circumstances, the functional need to know has been met. 3. The lawyers for the parties may require reasons to assist them in considering and advising with respect to potential appeal. On the other hand, they may know all that is required to be known for that purpose on the basis of the rest of the record. 4. The statutory right of appeal, being directed to conviction (or, in the case of the Crown, to judgment or verdict of acquittal) rather than to the reasons for that result, not every failure or deficiency in the reasons provides ground of appeal. 5. Reasons perform an important function in the appellate process. Where the functional needs are not satisfied, the appellate court may conclude that it is case of unreasonable verdict, an error of law, or miscarriage of justice within the scope of s. 686(1) (a) of the Criminal Code, depending on the circumstances of the case and the nature and importance of the trial decision being rendered. 6. Reasons acquire particular importance when trial judge is called upon to address troublesome principles of unsettled law, or to resolve confused and contradictory evidence on key issue, unless the basis of the trial judge’s conclusion is apparent from the record, even without being articulated. 7. Regard will be had to the time constraints and general press of business in the criminal courts. The trial judge is not held to some abstract standard of perfection. It is neither expected nor required that the trial judge’s reasons provide the equivalent of jury instruction. 8. The trial judge’s duty is satisfied by reasons which are sufficient to serve the purpose for which the duty is imposed, i.e., decision which, having regard to the particular circumstances of the case, is reasonably intelligible to the parties and provides the basis for meaningful appellate review of the correctness of the trial judge’s decision. 9. While it is presumed that judges know the law with which they work day in and day out and deal competently with the issues of fact, the presumption is of limited relevance. Even learned judges can err in particular cases, and it is the correctness of the decision in particular case that the parties are entitled to have reviewed by the appellate court. 10. Where the trial decision is deficient in explaining the result to the parties, but the appeal court considers itself able to do so, the appeal court’s explanation in its own reasons is sufficient. There is no need in such case for new trial. The error of law, if it is so found, would be cured under the s. 686(1)(b)(iii) proviso. [100] One year earlier similar discussion was set out in Kennedy, 2015 SKCA 32 (CanLII), at paras 32 and 33, 457 Sask 182. [101] Granted, many of these decisions consider the adequacy of reasons issue in the criminal context. These principles are no less applicable in civil or regulatory matters, especially where there are allegations of breaches of ethics, discipline or professional standards. See, for example, Hill Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41 (CanLII), [2007] SCR 129, which analyzed the Sheppard principles in the context of civil disputes: 100 The question is whether the reasons are sufficient to allow for meaningful appellate review and whether the parties’ “functional need to know” why the trial judge’s decision has been made has been met. The test is functional one: R. v. Sheppard, [2002] S.C.R. 869, 2002 SCC 26 (CanLII), at para. 55. 101 In determining the adequacy of reasons, the reasons should be considered in the context of the record before the court. Where the record discloses all that is required to be known to permit appellate review, less detailed reasons may be acceptable. This means that less detailed reasons may be required in cases with an extensive evidentiary record, such as the current appeal. On the other hand, reasons are particularly important when “a trial judge is called upon to address troublesome issues of unsettled law, or to resolve confused and contradictory evidence on key issue”, as was the case in the decision below: Sheppard, at para. 55. In assessing the adequacy of reasons, it must be remembered that “[t]he appellate court is not given the power to intervene simply because it thinks the trial court did poor job of expressing itself”: Sheppard, at para. 26. [102] Also see Gibson Insurance Corp. of British Columbia, 2008 BCCA 217 (CanLII) at paras 22, 23 and 25, 255 BCAC 98: [22] True, these conclusions do touch upon each of the principal issues of fact before the trial judge, but they offer nothing of the reasoning process in which the trial judge engaged in arriving at them. [23] In the context of the metaphor often used in the adequacy of reasons analysis, the trial judge takes us to the final destination, but we are left to wonder why which pathway he led us there. [25] We have the benefit of the trial judge’s conclusory findings on each of these issues, but we do not enjoy an indication of the reasoning process, the evidentiary analysis, or discussion of the acceptance and rejection of the evidence of the numerous experts, in which the trial judge had to engage in arriving at these conclusions. [Emphasis added]. [103] Consideration of this ground of appeal, in light of the twelve other grounds advanced by the appellant, is complex. Can it be said that appellate review is not possible due to scant reasons? In this case, the answer is “sometimes”. There are some grounds, such as whether the tribunal conducted an appeal de novo or whether the proper s. 76 test or assessment was done, that are reviewable. Those reasons and the corresponding grounds of appeal can stand on their own. But in several respects there remain problems with the depth of analysis in the Tribunal’s reasons. In particular, the review and resolution of the totality of the evidence (including, but not limited to, the conflicting expert opinions) received short shrift in the Tribunal’s analysis and reasons. [104] What has been termed the “core question” is this: “Do the reasons, read in context, show why the judge decided as he did on the counts relating to the complainant?”: Vuradin, 2013 SCC 38 (CanLII), para 15, [2013] [105] In Gale College of Physicians and Surgeons of Ontario (2003), 2003 CanLII 30486 (ON SCDC), 178 OAC 88 (Ont Sup Ct), discipline proceedings were in issue. The doctor appealed findings of guilt for unprofessional conduct. In his defence he had called numerous medical experts who took the view he had not fallen below the standard of practice. The discipline committee rejected their evidence and, according to the doctor, had simply ignored the evidence of highly qualified expert witness. The court determined that an error had been made by the discipline committee in failing to properly analyze the different expert opinions, finding the opinion of the leading expert so central to the doctor’s case that failing to deal with it rendered the committee’s decision unreasonable. [106] In fairness it must be noted Gale is now somewhat dated and precedes Sheppard and Dinardo. However, Gale has been considered and applied as recently as two years ago: Swart College of Physicians and Surgeons of Prince Edward Island, 2014 PECA 20 (CanLII) at paras 83 and 84, 361 Nfld. PEIR 5: [83] Reasons being required, the question turns to the adequacy of reasons. Reasons do not need to be counsel of perfection. Courts recognize that since reasons of disciplinary tribunals are typically prepared by lay persons, courts should not be overly critical of the language employed and should not seize on few words as destroying the entire disciplinary process. It is not fatal, per se, to decision if no specific mention is made of certain evidence, or if specific reasons are not given for rejection of evidence. However, statutory requirement that discipline committee report its findings and recommendations has been held to mean that the content of the report has to include meaningful explanation, otherwise it is not compliant (Pasivant (sic) v. STF, 2005 SKCA 52 (CanLII) (Sask.C.A.)). [84] Reasons have been found to be inadequate where they did not disclose whether tribunal took into account various mitigating factors, and where the tribunal did not address the serious and detailed submissions of the affected party (Fedoriuk v. Canada (Commissioner of Royal Canadian Mounted Police (1988), 1988 CanLII 5621 (FCA), 54 D.L.R. (4th) 168 (Fed.C.A.)); where they failed to identify the particular standard that licensed practical nurse failed to meet (Walsh v. Council for Licensed Practical Nurses, 2010 NLCA 11 (CanLII); and where the reasons indicated that tribunal misconstrued the evidence of key witness (Gale v. College of Physicians and Surgeons Ontario, 2003 CanLII 30486 (ON SCDC), [2003] O.J. No. 3948 (Ont.Div.Ct.)). Addressing the degree of departure from the standard is essential (Sussman v. College of Alberta Psychologists, 2010 ABCA 300 (CanLII)). [107] Thus turn to the central issue on this ground of appeal. From the Tribunal’s decision, can I tell how it reconciled the conflicting expert reports? Does the Tribunal’s decision tell me, in broad terms, how it was reached regarding the evidence as whole or even the conflicting evidence? As set out in Vuradin, do the reasons show why the Tribunal decided as it did on this evidence? [108] I find I must answer all these related questions in the negative. Dr. Olatunbosun is specialist. He provided his expert opinion on the five cases reviewed and relied upon by the SMO in levying the suspension and, later, the Board in upholding same. His evidence was critical to the appellant’s case as presented to every review body. Yet the Tribunal does not give his opinion any attention in its reasons. The Tribunal simply says the SMO’s decision to suspend was reasonable. It does not say why, other than saying it is only (and, in my view, myopically) looking at the SMO’s decision based on what the SMO had in front of him at the time. [109] But that very clearly is not the test. The review process in front of the Board is designed for there to be determination of whether the interim suspension by the SMO is to be continued. Section 77 of the Bylaws states that the Board is to “review the immediate suspension of appointment or privileges”. Section 80 of the Bylaws provides the Board may overturn the immediate suspension, or confirm it for specified time; or confirm it in general, with referral of the matter for discipline. Quite clearly the Board is to review the SMO’s decision with the response of the suspended doctor, connoting that the physician may adduce evidence. The fact that the statutory appeal to the Tribunal is in the nature of de novo hearing mandates two important things: that the Tribunal review the original decision, i.e. whether the SMO’s suspension of the physician was proper; and that the Tribunal must take its own view of the evidence not just evidence the SMO had, or the Board had, but evidence that is placed in front of the Tribunal even if that evidence is “new” in the sense that the SMO and/or the Board did not have it when making their decisions. [110] The Tribunal’s fundamental misapprehension of its task caused number of problems. Amongst those, this caused the Tribunal to maintain an overly narrow focus on evidence the SMO had at the time of suspension, as opposed to evidence squarely before the Tribunal. Had the Tribunal properly considered all the evidence it could have provided cogent reasons for why it preferred the evidence of the SMO and the experts he had review the five case files over the evidence on the same topic from the appellant’s experts. [111] This decision does not tell the reader why the SMO’s opinion was accepted. It does not deal at all, much less squarely or adequately, with the contrary evidence from the appellant’s experts. No reasons are given for this, much less sufficient reasons. [112] This ground of appeal must also succeed. The Tribunal breached its duty to properly consider all the evidence in the proper context and to provide proper reasons for its decision. 3. Did the Tribunal err in law by upholding the suspension by failing to conduct proper evidentiary analysis of the cases under review, including the conflicting expert opinions and affidavit evidence filed on behalf of the appellant, as required by s. 80 of the Bylaws, to determine whether the suspension imposed by the SMO pursuant to s. 76 of the Bylaws should be overturned? [113] This was set out as item 4(k) in the appellant’s notice of appeal to this court. In many respects this ground of appeal is intertwined with the two grounds of appeal just discussed above. It also intersects with ground 4(h) as to the selection of the date of the suspension as the relevant time to consider the extant evidence, and with grounds 4(f) and (j), which are discussed below. [114] It is trite law that trier of fact may accept all, some or none of the evidence of witness or source. However, as the cases set out above illustrate, where there is significant conflict on relatively important issue, the trier of fact needs to consider all the evidence on that point and provide adequate reasons why some evidence is accepted and some rejected, then go on to make findings based on due consideration of the totality of the accepted evidence. [115] Here, the Tribunal did not do that. From the decision itself and from the determination that it was assessing matters as they stood before the SMO in December 2014, the Tribunal could not have even proceeded to consider the appellant’s evidence and expert evidence. But the whole point of the Board and Tribunal review processes is to afford the suspended physician an opportunity to respond to the SMO’s position and the evidence the SMO relied upon to institute the suspension. By refusing or omitting to consider the appellant’s evidence, the Tribunal essentially continued to hear only one side of the story the SMO’s. This is not the balanced approach contemplated by the Bylaws and the legislation. This was not the legal task facing the Tribunal. [116] This ground also engages detailed review of the five cases selected by the SMO. That review is analyzed below when grounds 4(f) and (j) (listed in this judgment as issues #10 and #13) are discussed. [117] am therefore satisfied that the analysis of the five cases under review as well as the analysis of the expert opinions proffered by each side was entirely inadequate. This ground of appeal also succeeds. 4. Did the Tribunal err in law in failing to apply the appropriate legal test to support an interim suspension pursuant to ss. 76 and 80 of the Bylaws? 5. Did the Tribunal err in law in finding that the relevant time for determining if the suspension was reasonable was at the date of the suspension when no response to the concerns or input from the appellant was possible having received no notice of the SMO’s concerns until receiving the reasons for suspension on December 22, 2014? [118] These are items 4(m) and 4(h), respectively, in the appellant’s notice of appeal to this court. These grounds are interrelated and can be analyzed together. In some respects, the previous analysis herein has already touched upon these issues. [119] First, ground 4(h). There is no doubt the Tribunal appeal was de novo hearing carrying with it the requirement that the Tribunal independently assess all of the evidence placed before it. The purpose of such an analysis is to assess the evidence from both sides in order to decide whether the SMO’s interim suspension of the appellant was, in fact, warranted. [120] The Tribunal did not do this. At para. 27 of the Tribunal decision, the Tribunal said “The key time frame is at the date of the suspension”. Further in that paragraph, the Tribunal decided that the SMO’s opinion and decision to suspend was reasonable “... based on the information before him at the time”. Yet further, at para. 40 the Tribunal baldly states: “The relevant time is the date of the suspension”. Finally, at para. 42 the decision states “At the time of the suspension, the SMO is found to have had reasonable opinion that patient safety was at risk.” [121] No authority is cited by the Tribunal to support such proposition. No cases or previous decisions to this effect were provided by counsel. This is not surprising, given the de novo nature of the appeal. It does not appear that any such authority exists, as such authority would support proposition that is wrong at law. [122] Bearing in mind the apposite standard of review, what is the effect of this erroneous decision on the part of the Tribunal? The effect is that in maintaining its focus on the SMO’s information at the time of suspension, the Tribunal effectively barred itself from giving the evidence full and fair consideration. As indicated above, the Board and Tribunal hearings operate as checks and balances on the power and discretion of the SMO. An SMO operates only on information that he or she has garnered. There may exist other relevant information on points germane to whether physician should be suspended. The Board and Tribunal hearings allow the impugned physician to make his or her own submissions and provide his or her own evidence to the reviewing body, to provide that body with more complete and balanced picture as to what has transpired. That is the regulatory framework established by ss. 78 to 80 of the Bylaws, framework that not only allows the suspended doctor to know the case against him and respond to same, but expressly provides that the Board and Tribunal must consider the evidence and representations supplied by the doctor. [123] In fact and at law, the “key time frame” quite clearly was not the time the SMO decided to suspend Dr. Abouhamra. Such determination effectively precluded the Tribunal from conducting the analysis required. Such determination renders the Tribunal decision unreasonable, as it cannot lead to decision that is within range of acceptable, reasonable outcomes. [124] turn to ground 4(m), in which the appellant suggests the Tribunal failed to apply the appropriate legal test to determine whether the interim suspension could be supported under ss. 76 and 80 of the Bylaws. [125] The test in this regard was the same before both the Board and the Tribunal, as the Tribunal appeal was of de novo nature. Section 80 of the Bylaws directs the Board (and, correspondingly, the Tribunal) to review the SMO’s decision to immediately suspend the physician and in doing so to consider the evidence and arguments of that physician as given to the reviewing body not as given to the SMO, if such items were even supplied to the SMO. Given the nature of the SMO’s process, it is unlikely the SMO would be equipped with much information from the impugned physician. [126] Both the Board and the Tribunal were obligated to consider all of the evidence before each body and ask two fundamental questions, questions grounded squarely in s. 76(1)(a) and (b): 1. Does the whole of the evidence establish that Dr. Abouhamra’s conduct, performance or competence exposed, or was reasonably likely to expose, patients or others to harm or injury, or is reasonably likely to be detrimental to the delivery of quality patient care?; and 2. Does the whole of the evidence establish that immediate action was required to protect the patients or to avoid detriment to the delivery of quality patient care? [127] There are problems with the Tribunal’s analysis in this regard. [128] First, it does not appear that the Tribunal genuinely passed upon these two questions in the sense of determining whether the whole of the evidence established both criteria. In large measure this is due to the errors set out above. The Tribunal therefore failed to carry out its core function, rendering its decision unreasonable. [129] Second, the Tribunal simply assessed the Board’s finding and ultimately adopted and repeated same. No analysis is displayed as to whether the evidence now before the Tribunal, reviewed as whole, was capable of supporting the two s. 76 criteria. The Tribunal in effect abdicated its fact-finding function in favour of the Board when considering this issue. For example, in para. 29 of its decision the Tribunal said repeatedly “the Board found”. What the Board found or did not find is not the central issue in the Tribunal appeal. The Tribunal must operate in fully independent fashion to come to its own findings. am not saying the Tribunal cannot consider the Board’s decision. It can. But it cannot forego its own review, analysis and conclusions (especially regarding new evidence adduced which neither the SMO nor Board had) and simply purport to rely upon what the Board found. [130] Third, the Tribunal did not adequately consider whether the s. 76 test for suspension was made out in light of the existing case law, which provides guidance to the Tribunal. The harsh and difficult effects of such suspensions are well-noted. [131] Saskatchewan decisions, as well as those from other jurisdictions, have been quite consistent in finding that the immediate suspension of professional person (or even of other privileges) is drastic step that should be taken only as last resort and even then only after careful consideration of whether other measures might suffice. In this regard have considered: (a) Re: Fairbairn (1957), 1957 CanLII 146 (SK QB), 11 DLR (2d) 709 (Sask QB) (QL): This case involved the power that at that time the Highway Traffic Board had to suspend person’s operating license without hearing for limited time. [31] Nevertheless, it is, think, apparent that in the exercise of the power given to the Highway Traffic Board, which may in some cases seriously affect the individual whose licence is being dealt with, the board should recognize and apply the well-recognized and well-settled principles governing the exercise of such discretionary power. It is obvious that the apparent practice of the board of suspending or revoking the licence for minimum period of two months without any hearing may, to some affected thereby, be but an inconvenience but to others may cause financial loss, and, in some cases, even the loss of employment. There are numerous vocations in which the use of motor car is essential to the earning of livelihood. Again, the seriousness and degree of blameworthiness connected with the commission of an offence under sec. 223 of the Criminal Code may differ in the cases that are being dealt with and the board should, in the exercise of its discretionary power, give consideration to these in determining the measure of penalty that should be imposed as result. [32] The power of the board is by no means limited to suspension of licence for two months. It is empowered to revoke licence, to suspend one for any stated period and to refuse new licence. These are wide powers and should be exercised with discretion and fairness. [Emphasis added] (b) Park Institute of Chartered Accountants of Alberta, 2002 ABQB 880 (CanLII), 326 AR 342: chartered accountant received an interim suspension from his governing body, and successfully applied for an order staying same. The power of suspension pending full inquiry into the member’s conduct was described as “draconian power” (para. 30). Also see Gould Law Society of Alberta (1990), 206 AR 396 (Alta CA), leave to appeal denied at [1990] SCCA No. 379 (QL). (c) Huerto College of Physicians and Surgeons of Saskatchewan, 2004 SKQB 423 (CanLII), 256 Sask 293. While that decision dealt with the College’s proceedings, Justice Foley’s commentary on the nature of suspensions applies here. See para. 22: [22] Total suspension is matter of last resort and prior to imposition warrants careful reasonable examination in the context of the harm said to have been caused, the nature of the impugned conduct and the circumstances in which and when it is said to have occurred. In short, what is it that mandates total suspension without investigation, sworn testimony and finding of guilt? As matters currently stand, Dr. Huerto pays, on daily basis, the same price of total suspension from practice that could arise if he were eventually found to be guilty. Guilt has in no way been established, no charges have been laid, nor is any investigation underway. The Committee had before it only unsworn allegations from sources the credibility of which remains to be tested. (d) Van der Merwe Regina Qu’Appelle Regional Health Authority, Practitioner Staff Appeals Tribunal, 2011: This case was cited to the court by the appellant. At para. 44 of the decision: [44] The majority of this Tribunal believes that Section 86 of the Bylaws is severe measure and should not be implemented without careful consideration of all steps which might be taken to avoid the use of this extreme power. (e) Also cited by the appellant was Patton College of Dental Surgeons of British Columbia, [1996] BCJ No 2864 (QL) (BCSC), para. 30: [30] think it plain, considering the consequences attendant upon the summary suspension of professional person, that extraordinary action to protect the public requires extraordinary circumstances to serve as foundation for such step. (f) case decided only this past April was Scott College of Massage Therapists of British Columbia, 2016 BCCA 180 (CanLII). There was complaint of sexual impropriety during therapeutic massage session leading to the imposition of interim measures against the therapist under s. 35 of applicable provincial legislation. At para. 41 the court noted: [41] The cases suggest that it must always be remembered that an interim suspension of the right to practice one’s profession is an extraordinary remedy that ought to be used sparingly. And when considering the submissions supporting the interim action, the court further noted at para. [50] do not agree completely with the thrust of this submission because it does not appear to properly acknowledge, as it should, that an interim suspension or the imposition of onerous conditions on continued practice are potentially devastating for the professional. Hence the admonition that the risk of harm must be real and the s. 35 remedy (at least at these extremes) is extraordinary and to be resorted to sparingly. [132] There is no gainsaying that the weight of judicial authority is that the harsh remedy of interim suspension is to be used sparingly and carefully, and must rest upon proper factual foundation. That was not the case here. Certainly, the Tribunal failed to act reasonably when pursuant to the Bylaws it reviewed the suspension without paying attention to all the evidence before it. [133] In determining (a) to focus upon the evidence or information that the SMO had collected as at December 2014 rather than assessing all the evidence placed before the Tribunal and (b) misconstruing the legal test or the task before it, the Tribunal erred and ultimately, the Tribunal’s decision is unreasonable and cannot be upheld. Both of these grounds of appeal must succeed. 6. Did the Tribunal err in law by ignoring or failing to consider uncontroverted evidence showing lack of procedural fairness in the SMO’s investigation of the five cases under review? 7. Did the Tribunal err in law in finding that the appellant’s attendance at quality assurance meetings and/or critical incident reviews for the cases under review provided adequate notice of the SMO’s concerns and that the appellant was not entitled to any further notice or procedural fairness under the Bylaws or at law? 8. Did the Tribunal err in law in finding that the appellant’s attendance at quality assurance meetings and/or critical incident reviews for the cases under review satisfied the notice and other requirements of procedural fairness while concurrently confirming the Board’s decision not to order production of the minutes/reports generated from such meetings on the basis of the privilege asserted by the SMO? 9. Did the Tribunal err in law in finding that the requirements of procedural fairness were met by the appellant’s attendance at quality assurance meetings and/or critical incident reviews when the uncontroverted evidence is that the SMO did not himself attend the quality assurance meeting in regard to the fourth case under review and that no quality assurance meeting occurred with respect to the fifth and final case under review? [134] These four issues have been grouped together by me. In the appellant’s notice of appeal to this court they are set out as grounds 4(b), (c), (d) and (e). They were argued separately by the appellant. [135] In general, find these four grounds of appeal less compelling than others. [136] The first argument (issue #6 herein) was argued in four parts. Throughout, it appeared to be assumed that the SMO was under an extensive duty of fairness and transparency during the investigative phase of his actions. am not as sure as the appellant that the SMO was under such duty, at least as same is argued and defined by the appellant especially to notify the appellant of concerns and garner his input prior to levying the interim suspension. [137] accept that there is general duty of fairness owed to persons in the appellant’s position during the investigative stage of the SMO. But the nature and extent of same is not as the appellant envisages it. This duty does not fall into broad “one size fits all” category of fairness. As stated by Keith R. Hamilton at 5.2 of his work Self-Governing Professions: Digests of Court Decisions, looseleaf (Rel 40, March 2015) (Toronto: Thomson Reuters, 2015): In investigating an allegation against member, governing body has general legal duty to act fairly. Exactly what that means will depend on number of factors, including the wording of the applicable legislation, regulations and internal rules, the nature of the complaint and the stage of the investigation or adjudication process. [138] While the appellant was not being investigated by his regulator, as such, the process is similar and case law within the professional regulatory context is useful to the within analysis. Indeed, the parties hereto used numerous professional regulation cases to argue their respective positions. [139] The construction of the Bylaws, insofar as they pertain to interim suspension, shows they are designed to be used in the event of emergent circumstances. There must be clear and present danger to patients or proper ongoing care delivery prior to suspending physician. But this does not equate to process whereby the SMO must advise the doctor of his concerns, consult with the doctor, get his or her side of the story, and then make decision using all of that input. In an ideal world, where emergent circumstances do not exist, that would be the best thing to do. But these sections of the Bylaws, by definition, do not deal with ideal situations. Quite the contrary. They deal with situations where physician appears to have “gone off the rails” and something needs to be done, some drastic intervention is required, before something catastrophic occurs. [140] Examples may illustrate this point. In situation where an emergency room doctor is consistently showing up for shifts while under the influence of drugs or alcohol, must an SMO obtain that doctor’s input and take time to discuss matters with that doctor prior to acting? If an aging neurosurgeon with progressive disease such as Parkinson’s or multiple sclerosis is no longer fit to operate but shows up for scheduled brain surgery insisting the patient is his and that he and only he will conduct the procedure, must the SMO take care to explain the concerns, or obtain input and opinions from that surgeon, prior to instituting an immediate interim suspension? do not believe so. [141] Part of the difficulty in this case is that those sorts of drastic situations were not facing the SMO in this case. agree with the appellant in that respect. In that regard this instant case is similar to Justice Foley’s 2004 decision in Huerto. But that does not mean that the SMO in this case, or in other cases yet to come, must labour under some additional duty. [142] further difficulty have with the appellant’s position in this regard is that at best the authorities appear to be split as to whether the principles of fundamental justice apply to the process leading to an interim suspension, i.e. the investigation. In Gould, those principles were held not to apply at that stage because the interim suspension of lawyer does not amount to final disposition of the issue. Other cases hold the opposite view. And in at least one case reviewed (Mohan College of Physicians Surgeons of Ontario (1991), 1991 CanLII 8328 (ON SC), 81 DLR (4th) 108 (Ont Ct J) the court acknowledged that any duty of fairness applicable to interim suspension proceedings must be tempered by the practicalities and exigencies of the matter at hand. This is, in part, because that decision is interim only, and full airing of the matter is prescribed by the governing legislation. In these situations where the impugned order or action is only interim in nature, it “… must be reviewed in different light than in cases where there is final determination of the individual’s rights” (see p. 118). [143] Under the Bylaws, an interim suspension is subject to two independent reviews then an appeal to this court. While in no way do minimize the effects of such suspension upon physician, the Bylaws and Act provide for relatively quick reviews of the SMO’s actions. Undoubtedly in those review and appeal proceedings, fairness and natural justice apply. As well, in considering the construction of the Bylaws, those reviews are supposed to occur relatively quickly. For example, under s. 77 of the Bylaws the Board’s review hearing must be set “within fourteen (14) days from the date of the immediate suspension”. [144] have considered number of authorities in determining that the duty of investigative fairness is not as broad as the appellant urges, including: (a) Hawrish Cundall (1989), 1989 CanLII 4618 (SK QB), 76 Sask 208 (QB): member of the Law Society took issue with how an investigation committee conducted its investigation. The process was upheld by this court on the basis that the investigators were not exercising quasi-judicial function, which would be exercised by another body before which the member had full right of answer and defence. Justice Gerein stated at paras. [18] In this jurisdiction, any discussion of the nature and role of an investigation committee should begin with Samuels v. Council of College of Physicians and Surgeons of Saskatchewan et al. (1966) 1966 CanLII 352 (SK QB), 57 W.W.R.(N.S.) 385. In that case preliminary inquiry committee was appointed pursuant to the Medical Profession Act, R.S.S. 1965, c. 303, to investigate allegations of professional misconduct on the part of the applicant doctor. The committee summoned the applicant to appear before it and in time laid two charges before the discipline committee. The applicant, inter alia, objected to the manner in which the committee conducted its investigation. [19] In deciding against the applicant on this point, Disbery, J., held that the committee was not performing judicial or quasi-judicial function and was free to conduct its investigation in the manner it deemed proper. At p. 403 of the report he said: The sections of the Act relevant to the preliminary inquiry committee must be read and construed along with the other disciplinary sections of the Act. The Act clearly sets forth that the first duty of the committee is to investigate the suspected misconduct, and in so doing it 'may take such steps as it deems proper'. At this stage the members of the committee are performing services akin to those of police detectives; they are gatherers of information. When they have gathered the information then, if in the “opinion” of the committee there are reasonable grounds for believing that the investigated member may have been guilty of misconduct, the statute directs the committee to lay charge before the discipline committee. In arriving at their “opinion” the members of the committee must, of course, act in good faith and not capriciously or prompted by extraneous considerations or improper motives. If members of committee do not act in good faith then they forfeit the immunity given by s. 48 of the Act. It is to another statutory committee, the discipline committee, that the legislature has given the power to hear and adjudicate upon charges of misconduct against members of the college. am satisfied from reading of the disciplinary sections alone, without reference to the cases, that preliminary inquiry committee has not been given any judicial or quasi-judicial powers by the legislature. Therefore, as the committee is not tribunal exercising judicial or quasi-judicial powers in determining questions affecting the rights of subjects, it is not tribunal to which this court should direct writ of certiorari requiring it to bring its records in this matter before this court. From study of the cases reach the same conclusion. This preliminary inquiry committee had no power to decide whether Dr. Samuels had been guilty of misconduct; it had no power to affect any of his legal rights in any way whatever; and it had no power to impose any penalty or obligation upon him. Having no power to adjudicate anything it was not, when conducting its investigation, acting in judicial or quasi-judicial capacity. The application for writ of certiorari directed to said committee or its members, the respondents Weder, Boyd and McAlpine is refused. (b) Swanson Institute of Chartered Accountants of Saskatchewan, 2007 SKQB 480 (CanLII), 308 Sask 32: Amongst other cases, Hawrish was reviewed. At paras 63 to 66 Justice Currie acknowledged the duty of fairness at the investigative stage but considered the “nature of that duty of fairness” (para. 64) within the context of the legislation and internal rules and overall disciplinary scheme. (c) Maxwell Law Society of New Brunswick (1990), 1990 CanLII 8018 (NB QB), 65 DLR (4th) 754 (NBQB): The court dismissed member’s argument that there ought to have been chance to respond and provide input before formal hearing was directed to adjudicate the complaint. (d) Mondesir Manitoba Association of Optometrists (1998), 1998 CanLII 19440 (MB CA), 163 DLR (4th) 703 (MBCA), leave to appeal to SCC refused, [1999] SCR xi. competitor of the impugned optometrist was instrumental in launching the complaint and providing investigative assistance regarding same. The Manitoba Court of Appeal allowed the Association’s appeal, holding that even if there was bias or an appearance of bias within the investigative process, any prejudice arising therefrom could be properly dealt with within the hearing process in the disciplinary structure. The hearing body’s composition was different from, and independent of, the investigative branch. The Court of Appeal stated: [24] There is no issue that all hearing bodies, be they described as administrative or as quasi-judicial or as judicial, owe duty of fairness to those affected by their decisions. However, finding of irregularity at the inquiry stage does not necessarily result in the court’s intervention in the administrative process. The extent of the duty fluctuates in relation to the power of the administrative body. ... [26] Generally, the courts have concluded that mistakes made by first-stage investigative committee can be remedied or addressed at the second-stage hearing before discipline committee. ... However, where an investigative body has erred and the error has not resulted in real and substantial prejudice to its member, then the courts will be slow to intervene in the administrative process, especially when that process provides for judicial review at its conclusion. (e) similar result to that in Mondesir was reached in Histed Law Society of Manitoba, 2006 MBCA 89 (CanLII), 208 Man (2d) 44, leave to appeal to SCC refused, [2007] 48. As noted at the outset of my reasons, have concluded that any reasonable apprehension of bias that may have existed at the time the CIC decided to issue the citation was cured by the discipline hearing at which the appellant was given full opportunity to answer the charges against him. While the appellant has many objections about the rulings and decisions made by the panel, he makes no complaint as to the constitution of the panel or the fairness of the discipline hearing. As will be seen, fundamental to my conclusion is my determination that the CIC’s function was investigative in nature, and not adjudicative, as argued by the appellant. reasonable apprehension of bias at an early investigative stage of proceedings can be cured by subsequent hearing that adheres to the principles of natural justice. 49. The principle that tribunal can cure its procedural defects was recognized in King v. University of Saskatchewan, 1969 CanLII 89 (SCC), [1969] S.C.R. 678. In King, the university had refused to grant the applicant law degree. The applicant’s appeal was considered by several committees, but he and his counsel were only allowed to be present at the final hearing before committee of the senate of the university. Spence J. noted that breaches of natural justice had occurred in the earlier hearings, but he found that the final hearing before the senate committee was sufficient to rectify the defects: “If there were any absence of natural justice in the inferior tribunals, it was cured by the presence of such natural justice before the senate appeal committee” (at p. 689). 50. The often cited decision of Harelkin v. University of Regina, 1979 CanLII 18 (SCC), [1979] S.C.R. 561, re-affirmed King. Here, student was required by university authorities to withdraw from his studies. The student appealed to committee of the university council, which heard only the university’s side of the dispute, and decided against the student. The student sought prerogative relief. The majority of the Supreme Court decided against the student, because the student had further right of appeal within the administrative scheme of the underlying legislation. 51. Mondesir v. Manitoba Association of Optometrists (1998), 1998 CanLII 19440 (MB CA), 129 Man.R. (2d) 96 (C.A.) (leave to appeal refused, [1998] S.C.C.A. No. 405 (QL)), is the leading case in this province for the principle that procedural defects can be cured in multi-stage administrative process. This decision warrants close examination because of its similarities to this appeal. [145] Accordingly, find cannot agree with the appellant when he contends that the SMO had duties of fairness which included duties to disclose, review, discuss and garner input from the appellant prior to levying the interim suspension. The duty of fairness that imbues the investigative stage of this process, in my view, is simply not as far-reaching as the appellant argues given the nature of the reviews (culminating in appeal by way of judicial review) available to the appellant subsequent to that investigation. [146] In reaching this conclusion have also come to take different view from the appellant as to Dr. Olatunbosun’s opinion letter of July 31, 2015 which was in evidence before the Tribunal but not the Board. In fact it was obtained in reaction to the SMO’s PowerPoint presentation made to the Board without notice to the appellant. The appellant takes the view that Dr. Olatunbosun is “eminently qualified” to provide an opinion as to how an SMO should properly conduct his duties. The appellant views this opinion as compelling evidence which illustrates how the SMO mishandled this case. don’t think that’s right. Here’s why. [147] First, Dr. Olatunbosun was initially retained due to his ob/gyn medical specialty. He was asked to provide opinions on the five reviewed cases, presumably to rebut the opinions amassed by the respondent. On reviewing his material have no hesitation in saying would most likely qualify him as an expert in obstetrics and gynecology in trial setting, permitting him to provide expert opinion evidence on those topics. [148] The same cannot be said of his opinions as to how an SMO is to conduct his or her duties. There is no broad demonstrated expertise and experience such that the opinions of Dr. Olatunbosun on those matters would be intrinsically more valuable than those of anyone else with knowledge of the health care system. His opinions, at least in part, involve legal interpretation of the Act and the Bylaws and how they are supposed to work. There is nothing in the material to indicate that he has any expertise in statutory interpretation and in any event that is within the court’s purview. Based on the material presently before me, in trial setting likely would not allow Dr. Olatunbosun to provide expert opinion testimony on how an SMO is to fulfill the functions of that position. At best that is matter of mixed fact and law. [149] Further, on factual basis, while Dr. Olatunbosun was SMO in another health region for ten years this does not mean that his opinions on how to conduct those duties govern anyone else. It was not established in evidence that his tenure as SMO was stellar. Perhaps it was, but do not know that, and neither did the Tribunal. [150] Finally, Dr. Olatunbosun’s opinion letter amounts to him taking on the role of an advocative wolf dressed up in the sheep’s fleece of an impartial expert. While not phrased this way, agree with respondent’s counsel when he makes this argument. Dr. Olatunbosun’s letter, on any plain reading, amounts to advocating position which favours the appellant and diametrically opposes the SMO. That is not the case with Dr. Olatunbosun’s comments on the five reviewed cases or the opinions of the other medical experts. There, he demonstrates objectivity and impartiality, and appears to be genuinely trying to assist the adjudicators in reaching proper decision. [151] An expert’s duties were recently refined by the Supreme Court of Canada in White Burgess Langille Inman Abbott and Haliburton Co., 2015 SCC 23 (CanLII), [2015] SCR 182. More specifically, the case deals with providing revised framework for assessing bias and propriety in expert opinions tendered. This is not just an issue of weight, it is matter of admissibility. The court has gatekeeping role to ensure improper expert opinions are not placed before trier of fact. Judges (and, by implication, other adjudicators) must fulfill their duty to ensure expert witnesses provide opinion evidence that is fair, objective and non-partisan. The experts need to acknowledge they are aware of this duty and confirm they will honour same. If this threshold is not met the expert opinion should be rejected. Even if accepted into evidence, any remaining questions as to the expert’s impartiality or independence should be taken into account when the trier of fact determines the weight to be attributed to that opinion. [152] Here, with his July 31, 2015 opinion Dr. Olatunbosun crossed (or at the very least blurred) the line between impartial expert and advocate. have not been asked to rule upon whether his opinion was properly before the Tribunal. would not have attributed much weight to that opinion and it seems the Tribunal did not do so. However, the Tribunal was still under duty to deal with his evidence and if it was to be rejected or discounted, to provide reasons therefore. The breach of that duty is discussed above under the adequacy of reasons ground of appeal. [153] To summarize this point, the appellant essentially suggests that because Dr. Olatunbosun was an SMO within Saskatchewan’s health care system his opinions as to the way to do that job are virtually definitive, and the Tribunal ought to have adopted same. They are not, and while having admitted his evidence the Tribunal clearly should have reviewed and assessed his opinions on proper SMO governance in determining the issues (even if this opinion was ultimately entirely discounted), the Tribunal was in no way obligated to accept all or some of what Dr. Olatunbosun had to say in this regard. [154] am somewhat more accepting of the third tranche of the appellant’s arguments in this regard, insofar as there appeared to be no consideration of alternatives to suspension, or at least inadequate consideration in such regard. However, the appellant’s supporting cases tend to be those where suspension is levied by an administrative body as opposed to one corporate officer acting alone, or those where relief is being sought in different context from the Act and Bylaws as in this case. For example the appellant relies on Chiropractors’ Association of Saskatchewan Potapinski, 2001 SKQB 194 (CanLII), 205 Sask 185, as support for the proposition that “. the SMO was similarly obliged to balance any existing risk to patient safety against the impact on the physician” (para. 177, appellant’s factum). However, in that case the investigator was seeking temporary restraining order pursuant to legislation, which was assessed by the court on the same basis as an application for an interim injunction. That is markedly different from the SMO’s function. [155] The appellant also relies on Tanaka Certified General Accountants’ Association (Northwest Territories), [1996] NWTR 301 (NWTSC). do not disagree that administrative bodies can owe duty of fairness during an investigation but that case contemplates situation where conclusions as to the subject individual’s rights are determined. That is not so here. The rights are ultimately determined by the Board, Tribunal and this court. The SMO’s interim suspension is, and is intended to be, stopgap measure for the purpose of protection of the public. [156] Tanaka has not been universally accepted. For example in Graham United Church of Canada, 2002 SKQB 456 (CanLII), 226 Sask 40, it was held that even if there was procedural defect within the investigative process, that did not prohibit further investigations and hearings (para. 18). In the case at bar, sending the matter back for new investigation and re-commencing this entire process does not strike me as palatable situation for Dr. Abouhamra. [157] Tanaka was also considered in Sawchuk Manitoba Pharmaceutical Association, 2002 MBQB 248 (CanLII), 168 Man (2d) 256. At paras. 10 and 11 the multi-faceted role of the investigator was disapproved of, but there is distinction between those cases and the case at bar. In the instant case the SMO acts as investigator and (after fashion) the “prosecutor”, but that is expressly countenanced by the Act and Bylaws. As well, the SMO does not select the people constituting the adjudicators. The SMO certainly does not select the Board members, and it is the Board conducting the initial review under the Bylaws. The SMO does not select the members of the Tribunal. And the SMO certainly does not select which member of this court conducts the appeal. [158] agree with respondent’s counsel that the cases relied upon by the appellant deal with decisions made within different processes or before different types of decision-making bodies, and therefore are distinguishable from the case at bar. The appellant’s cases cited do not squarely deal with the processes set out in the Bylaws. [159] The mere fact that the SMO wears more than one hat is not dispositive. In rural Saskatchewan RCMP members frequently investigate offences, bring charges, serve the accused with the court notice, and act as the Crown agent in prosecuting the matter. They are not disqualified because of doing so, nor are the subject charges nullities. If they crossed the line into selecting or improperly influencing the adjudicator, that would be different. They do not. Neither did the SMO. [160] In reviewing the Bylaws, it is my view that under s. 76 the SMO is gatekeeper or sentinel, guarding against emergency situations that imperil patient safety or proper delivery of public health care. An SMO will sometimes have to act swiftly to fulfill that mandate. An SMO will not always have the time or ability to act with transparency and in consultative or collegial manner when the SMO genuinely (even if incorrectly) perceives that public safety is at risk. am not prepared to impose or read into s. 76 restrictions that in my view do not presently bind persons in the position of the SMO. [161] In coming to this conclusion have duly considered the highly capable arguments of appellant’s counsel, and have been mindful throughout of the dire personal and professional consequences an interim suspension can have for physicians. Nevertheless, imposition of the requirements proposed by the appellant in my view would not be in keeping with the true intent behind the Act and Bylaws. [162] This conclusion on issue #6 (i.e. that the SMO does not have full duty of fairness, consultation and transparency during the investigation) eliminates consideration of the remaining issues in this group (#7 to #9). However, if am incorrect in my determination of issue #6, do agree with the appellant that his attendance at quality assurance meetings and/or critical incident reviews do not constitute the required notice from the SMO. have no hesitation in coming to that conclusion. [163] The critical incident reviews and reports are privileged. am, frankly, unsure as to how the SMO could oblige the appellant to take part in such reviews, purport to use them to partially ground his decision to suspend the appellant, treat that mandatory participation as some form of notice of his intention to investigate and possibly suspend the appellant, then claim privilege under s. 58 of the Act. That is manifestly unfair. [164] have determined that in these circumstances the SMO did not have duty to provide notice to the appellant during the investigative process. That duty only arose at the conclusion of the SMO’s investigation. However, if the SMO was under such duty, the requirement for notice is not met through the appellant’s attendance at the quality assurance and critical incident sessions. The concept of providing notice involves, inter alia, the conveyance to the recipient of such notice that he or she potentially faces some jeopardy. agree with the appellant’s submissions and do not accept that his attendance at such meetings effectively accomplishes this. say this for several reasons: (a) As stated, the privilege that attaches to those meetings prevents what was said at those meetings from being used for other purposes, including s. 76 suspension. Section 10 of The Evidence Act, SS 2006, E-11.2, and s. 58 of The Regional Health Services Act effectively bar such use. (b) Case law consistently upholds this privilege as mandatory statutory privilege. See Kerr Saskatchewan (Minister of Health) (1994), 1994 CanLII 4586 (SK CA), 123 Sask 63 (Sask CA); MacKenzie Kutcher, 2003 NSSC 76 (CanLII), 213 NSR (2d) 288; Lancaster Minnaar, 2006 SKQB 380 (CanLII), 288 Sask 31; Dawe Evans, 2009 ABQB 724 (CanLII), 483 AR 72; Pryznyk Gilliland, 2015 SKQB 285 (CanLII); Gordon Estate Regina Qu’Appelle Regional Health Authority, 2015 SKQB 147 (CanLII), 475 Sask 142. (c) Strangely, despite this privilege (which was described by Zarzeczny J. at para. 20 of Gordon Estate as “comprehensive and all-encompassing”) the SMO breached or waived same when disclosing events from those meetings at the Board hearing. It is not the SMO’s privilege to waive, nor even the Health Authority’s. It is statutory protection. [165] agree with the appellant that the SMO, Board and Tribunal did not properly apply the statutory privilege. Whatever was said at quality assurance and/or critical incident meetings cannot be held to have been effective notice to the appellant that his practice was being reviewed in different context, in particular the s. 76 immediate interim suspension context. The respondent and its SMO need to review their own practice and outlook in this regard. [166] However, having found that within the structure of the Act and Bylaws the SMO’s investigation is not subject to an overriding duty of fairness and transparency as same is defined by the appellant, these grounds of appeal cannot succeed. 10. Did the Tribunal err in law in upholding the interim suspension in light of the conflicting expert medical opinions, including the opinions of specialists in obstetrics and gynecology who found that the appellant had met the standard of care in the cases under review? 13. Did the Tribunal err in law by ignoring or failing to consider the long-accepted legal principle that, where there is more than one recognized method of diagnosis or treatment, physician is not negligent in selecting one of the recognized options even though such approach may not be favoured by certain practitioners? [167] These are grounds 4(f) and (j) in the appellant’s notice of appeal to this court. [168] Appellant’s counsel spent considerable time during this two-day hearing reviewing the five cases which the SMO had selected to review. Her passionate presentation was compelling, but there is an initial jurisdictional threshold to consider. [169] Section 45(4) of The Regional Health Services Act provides that any appeal to this court is “on question of law or jurisdiction”. There is some room to argue that these grounds of appeal engage review of factual determinations made by the Tribunal. [170] similar right of appeal to this court exists in The Residential Tenancies Act, 2006, SS 2006, R-22.0001. In Reich Lohse (1994), 1994 CanLII 4691 (SK CA), 123 Sask 114 (CA), the scope of such appellate review was defined in passage that remains good law today: 18 Our jurisdiction and that of the Queen’s Bench on an appeal from the rentalsman is simply supervisory one with respect to the interpretation of the law and the rentalsman’s jurisdiction. It is not our task to pass judgment on the behaviour of either tenants or landlords as it relates to the exercise of their right. That is the function of the rentalsman. [171] Reich has been considered many, many times. Consistently it has been held to mean that on such an appeal this court does not have any ability to rehear the evidence or consider the matter anew. It is supervisory appeal. [172] This approach has been confirmed in different contexts. Recently, in Milan Consulting and Construction Ltd. City of Regina, 2016 SKQB 31 (CanLII), Justice Schwann considered the nature and scope of an appeal pursuant to s. 329 of The Cities Act, SS 2002, C-11.1. The language of that statutory review mirrors the within appeal. Justice Schwann canvassed the nature and scope of such an appeal at paras. 24 to 40 of her judgment. She confirmed it is limited in scope and is supervisory in nature. [173] further example of the interpretation of such right of appeal is found in City of Saskatoon North Ridge Development Corporation, 2015 SKCA 13 (CanLII), 451 Sask 265. That case involved an appeal on questions of law and jurisdiction pursuant to s. 33.1 of The Municipal Board Act, SS 1988-89, M-23.2. That right of appeal had the added requirement of leave, which is not of concern in the case at bar. At paras. 43 and 45 of that decision, it is confirmed that such right of appeal is limited. At para. 45: 45 Section 33.1 does not grant general right of appeal to the Court of Appeal as exists with respect to appeals from the Court of Queen's Bench. An appeal under s. 33.1 is restricted to questions of law or jurisdiction only. If the Chambers judge grants leave under s. 33.1, the Court that hears the appeal will not consider the correctness of the Committee's decision, except insofar as the decision turns on the identified questions of law or jurisdiction; nor will the Court weigh the evidence to consider the reasonableness of the decision or any finding of fact. The Court’s task is to consider the decision only as it relates to the questions of law or jurisdiction. [Emphasis added] [174] Finally in this regard, have considered the guidance offered in cases such as Housen Nikolaisen, 2002 SCC 33 (CanLII), [2002] SCR 235, as to the distinctions amongst questions of fact, questions of law, and questions of mixed fact and law. At para. 101 those categories were described: Put briefly, questions of law are questions about what the correct legal test is; questions of fact are questions about what actually took place between the parties; and questions of mixed law and fact are questions about whether the facts satisfy the legal tests. [175] In some cases question appearing to be question of mixed fact and law can actually be question of law. This was expanded at para. 27 of Housen, where the Supreme Court drew upon an earlier decision as an example: ... if decision-maker says that the correct test requires him or her to consider A, B, C, and D, but in fact the decision-maker considers only A, B, and C, then the outcome is as if he or she had applied law that required consideration of only A, B, and C. If the correct test requires him or her to consider as well, then the decision-maker has in effect applied the wrong law, and so has made an error of law. [176] Case law also notes that factual findings may constitute reviewable questions of law if those findings are unreasonable because they ignore relevant evidence, consider evidence not relevant, mischaracterize relevant evidence, and/or draw inferences from the facts which are unsupportable or irrational. In this regard see P.S.S. Professional Salon Services Inc. Saskatchewan (Human Rights Commission), 2007 SKCA 149 (CanLII), 302 Sask 161. At paras. 60 to 65 Justice Cameron set out how findings of fact may be subject to review as errors of law: 60 It is clear that the appeal against the decision of the tribunal comes down to its findings of fact. This is not to say that there is, therefore, no tenable ground for review of the decision, but it must be understood that the decision is only reviewable to the extent the findings of fact upon which it rests are attended by error of law. 61 The import of this was remarked upon in City of Regina et al. v. Kivela, 2006 SKCA 38 (CanLII), (2006), 266 D.L.R. (4th) 319 (Sask. C.A.), case involving an appeal from the decision of human rights tribunal. Speaking for the Court Smith J.A. said: The traditional view, in these circumstances, is that the tribunal's factual determinations are subject to review only if and to the extent that findings constitute errors of law, as when there was no evidence before the tribunal that, viewed reasonably, was capable of supporting the tribunal's finding. 62 This ties in with the notion that “an unreasonable finding of fact” falls to be categorized as an error of law for the purposes of judicial review in the classical sense, and with the associated notion that when errors of law are open to judicial review unhindered by privative clause then “unreasonable errors of fact”, though no others, are subject to review: Blanchard v. Control Data Canada Ltd., 1984 CanLII 27 (SCC), [1984] S.C.R. 476 at 494-95. It also ties in with the further notion that tribunal “errs in law” if it ignores relevant evidence or evidence it is required to consider: Woolaston v. Minister of Manpower and Immigration, 1972 CanLII (SCC), [1973] S.C.R. 102; Canada (Director of Investigation and Research, Competition Act) v. Southam, 1997 CanLII 385 (SCC), [1997] S.C.R. 748 at para. 41: “If the Tribunal did ignore items of evidence that the law requires it to consider, then the Tribunal erred in law.” 63 Similar notions were acted upon in Metropolitan Entertainment Group v. Nova Scotia (Workers Compensation Appeals Tribunal), 2007 NSCA 30 (CanLII), (2007), 278 D.L.R. (4th) 674 (N.S.C.A.). In that case the right of appeal was confined to questions of law or jurisdiction, and there, as here, the appeal challenged the findings of fact upon which the decision came to rest. This gave rise to the issue of whether the findings were subject to review in light of the limit upon the right of appeal. In addressing the issue, the Nova Scotia Court of Appeal said this: 15 ... there are however, situations where mis-stating evidence or making egregious factual errors will amount to an error in law. Southam Inc. v. Canada (Director of Investigation Research), supra. Findings, inferences, and conclusions which are seen to be so flawed as to be patently unreasonable, are transferred into errors of law. See, for example, Nova Scotia (Director of Assessment) v. Gatsby’s Bar and Eatery Limited, [2004] N.S.J. No. 145 (QL), 130 A.C.W.S. (3d) 448 (C.A.); McCarthy v. Nova Scotia (Workers’ Compensation Appeals Tribunal), [2001] N.S.J. No. 175 (QL), 105 A.C.W.S. (3d) 658 (C.A.) and Stulac v. Nova Scotia (Workers’ Compensation Appeals Tribunal), [2001] N.S.J. No. 132 (QL), 104 A.C.W.S. (3d) 247 (C.A.). 64 To the extent this passage refers to “patently unreasonable” findings and inferences of fact as amounting to errors of law, it draws upon the language of the standards of review. mention this because at the stage of deciding whether impugned findings of fact are subject to review, rather than at the stage of selecting the standard of review, it would seem preferable to speak only of “unreasonable” findings of fact as constituting errors of law, as in Blanchard v. Control Data Canada Ltd. 65 In any event, it is evident from the foregoing that findings of fact are capable of giving rise to question of law for the purposes of right of appeal so confined. It is instructive in this regard to recall that the facts as found are one thing, the process by which they are found is another, and it is here where decision is most apt to be seen as giving rise to question of law. Why? Because the fact-finding process, or method by which facts in dispute are determined in judicial and quasi-judicial settings, is underpinned by principle, as supplied by both statutory implication and common law. In this instance, the underpinning of principle is supplied in the main by The Saskatchewan Human Rights Code. [Emphasis added] [177] What is the court actually dealing with regarding these two grounds of appeal (4(f) and (j))? Is the appellant dissatisfied with, and taking issue with, factual findings per se or is he impugning the process by which the Tribunal arrived at those factual findings? This is an important issue as it determines whether this court can even consider the extensive arguments pertaining to the evidence surrounding the five reviewed patient cases. [178] am not prepared to revisit and make any new findings of fact. On this type of appeal, that is not this court’s role. It was, however, the precise role of the Tribunal; at least, the Tribunal had to take an independent and fresh view of the evidence before it to reach conclusions on all matters in issue. The Tribunal was not to simply defer to or accept the Board’s rulings and findings, nor was the Tribunal to simply review the Board’s determinations on the basis of correctness or reasonableness. [179] Accordingly, have limited my approach to factual matters under appeal to determination of whether the Tribunal properly conducted review of the evidence to decide what the facts were and whether, on those facts, the SMO’s suspension of the appellant was sustainable. [180] As already found above, the Tribunal did not carry out this mandate. Additionally, the Tribunal’s decision was neither correct nor reasonable in several other respects when considering the evidence before it. [181] Specifically, the Tribunal went astray as follows. express no view as to which experts’ opinions should be accepted as correct. In the context of this appeal do not have to determine that issue. But the Tribunal did. The Tribunal was obliged to give due consideration to the medical opinions, review and attempt to resolve the obvious conflicts in same, consider same in the broader context of all the evidence, and then come to conclusion while providing reasons therefore. The Tribunal did not do this. This failure renders the Tribunal’s decision unreasonable. Accordingly, issue #10 (ground 4(f) in the appellant’s notice of appeal) meets with success. [182] In issue #13 (ground 4(j)) the appellant suggests that the Tribunal failed to recognize that because the expert medical opinions illustrate that there were numerous modes of treatment available to the appellant, he was not negligent because of choosing one of those modes even if some of the experts would not have chosen that treatment option. Maybe so. But negligence, per se, is not the test the Tribunal was dealing with. The issue for the SMO, the Board and the Tribunal was whether the s. 76 interim suspension test was met or, more properly, would be met or could be sustained given the evidence placed before the Board and, subsequently, the Tribunal. [183] The fact that Dr. Abouhamra chose from an array of available treatment options is not complete answer to that test. The options he chose, for example, in each of the five cases under review could have been acceptable medical options. The exact manner in which he delivered health services to each of those patients could still fall below the standard required or could still endanger patient safety. [184] In saying this am mindful (and agree with) the position put forth by appellant’s counsel that the SMO, Board and Tribunal were not entitled to look at this matter through result-oriented analysis. agree that in each of the five cases there were problems and/or poor medical results, but that in itself does not mean that the appellant’s delivery of medical care was poor. [185] Further, in saying this also acknowledge the authorities cited by the appellant. My conclusions are, in my view, in step with those authorities. The appellant cited ter Neuzen Korn, 1995 CanLII 72 (SCC), [1995] SCR 674 at para 38: 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. agree. However “acting in accordance with recognized and respectable practice of the profession” involves more than selection of an appropriate treatment option. Performance of procedures, assessment and management of the patient’s condition, and continuing application of skill and judgment are all required to fit within this phrase. [187] do not agree that the answer to the question posed to the Tribunal is as simple as the appellant argues here; that is, having chosen one of range of appropriate options, there is no way the appellant’s conduct could have brought him within the ambit of s. 76 of the Bylaws. In my view, there are numerous further considerations whereby s. 76 would have to be considered. [188] do agree that the Board and Tribunal gave somewhat short shrift to their respective considerations of the conflicting expert evidence before them. Faced with expert opinions which were admitted into evidence, it was incumbent upon the Tribunal to assess and resolve those conflicts within the context of the proper s. 76 consideration. In failing to do so and failing to give adequate reasons, the Tribunal failed to ultimately render decision that was reasonable. [189] am also concerned about the nature of some of the evidence presented by the SMO to the Board and subsequently to the Tribunal. In particular refer to his PowerPoint presentation. Appellant’s counsel went through that presentation in detail, with an analysis that compared and contrasted what the SMO said in his PowerPoint to what was actually established in the evidence. There were differences, some minute, but some substantial. This is problematic. Whether that PowerPoint presentation was treated as evidence or argument, it needed to be accurate and not be misleading. [190] In fact have determined that it was both inaccurate and misleading in number of respects. The conclusions or opinions set forth by the SMO in that presentation were not supported by the actual evidence before the reviewing bodies. The SMO failed to maintain accuracy in drawing those opinions and conclusions in his PowerPoint presentation. The PowerPoint was more than raw data or evidence. It referred to events but contained the subjective opinions and conclusions of the SMO, presented as fact. It was, as appellant’s counsel referred to it in oral argument, “distillation with message” (sometimes an inaccurate message) as opposed to being recitation of facts or evidence from which conclusion or inference could be drawn by the adjudicator. [191] Whether intended or accepted as evidence or argument, in either case the SMO had duty not to mislead the reviewing bodies, either intentionally or unintentionally. Correspondingly the Tribunal had the duty to deal with such evidence or arguments and ensure that the Tribunal’s determinations were made on the basis of actual and accurate evidence and arguments. It does not appear the Tribunal did so, or at least provided no cogent analysis of the use made of the impugned PowerPoint presentation. [192] Ultimately, the Tribunal decision is unreasonable for the reasons stated immediately above. 12. Did the Tribunal err in law by ignoring or dismissing the uncontroverted expert evidence that all of the cases under review fell within the practice area of obstetrics, which is distinct and separate area of medical practice from that of gynecology, and failing to consider that the suspension extended to the appellant’s gynecology privileges without any evidentiary support? [193] This is ground 4(i) of the notice of appeal. The appellant argues that the Tribunal should not have accepted the SMO’s evidence regarding the five obstetrics cases under review, insofar as he opined that they had equal application to the related (but distinct) medical specialty of gynecology. It is argued there was no factual or legal foundation for the suspension of gynecology privileges. One letter of opinion from Dr. Olatunbosun (April 7, 2015) speaks directly to this distinction (pages 298a to 299a, appeal book). In that letter Dr. Olatunbosun is clear that there is distinction between the two disciplines, and that suspension of privileges in one does not automatically mean suspension is required for the other. [194] Dr. Olatunbosun’s opinion is somewhat weakened by failure to cite any real sources. It appears based largely on anecdotal experience. For example, on page 299a he says: In my interaction with my colleagues across the country and in the U.S. the practice of keeping obstetric and gynecology privileges separate is similar with regard to physicians who for various reasons have their obstetric privileges suspended but have their gynecology privileges, based on the two specialty areas being distinct entities. The converse also applies to when gynecology privileges are suspended and the literature contains several examples of this prevailing practice. [195] am unsure as to what “literature” the doctor refers. In failing to cite any real sources, Dr. Olatunbosun’s opinion becomes just that bald opinion. How would counsel opposite cross-examine him on that opinion when the basis of same is not supplied? As well, it appears that again Dr. Olatunbosun has crossed the line from objective expert to advocate. [196] The further difficulty have is that there are cases which do not support the bright line distinction proffered by Dr. Olatunbosun. In Re Board of Management of Grace General Hospital of Ottawa and Burgess (1985), 1985 CanLII 2145 (ON SC), 51 OR (2d) 435 (WL) (Ont Div Ct), (SC), specialist’s privileges as an ob/gyn were rescinded due to concerns as to quality of care delivery, and abrasive interpersonal relationships with others. An appeal board reversed this decision in part, upholding the denial of obstetrics privileges but reinstating the physician regarding gynecology. further appeal to the court resulted in reversal of that decision. It was held there was no evidence to justify the board’s distinction as between obstetrics and gynecology. The court said this at paras 12-17: [12] have difficulty with the Board’s separation of obstetrics from gynaecology. Dr. Burgess’s appointment to the hospital was an appointment with privileges in “obstetrics and gynaecology”. He was appointed to the department of “obstetrics and gynaecology”. There was no evidence adduced which would justify or permit the Board to differentiate between obstetrics and gynaecology. There was no submission made to the Board that distinction should or could be drawn between obstetrics and gynaecology or that Dr. Burgess’s privileges with respect to the one should be treated any differently than his privileges with respect to the other, or that any difference could be described between his standard of care in treating gynaecological patients as compared to obstetrical. The first hint anyone associated with the case had that the Board was considering drawing dividing line between the practice of obstetrics and the practice of gynaecology in the way that they did occurred when it had already been done; that is to say, when the reasons of the Board were issued. [13] do not suggest that distinction may not be drawn between the practice of obstetrics and the practice of gynaecology. Dorland’s illustrated Medical Dictionary, 26th ed. (W. B. Saunders Company) illustrates that in the following definitions: Obstetrics: that branch of surgery which deals with the management of pregnancy, labour and puerperium (period or state of confinement after labour). Gynecology: that branch of medicine which treats of disease of the genital tract in women. have difficulty, however, in seeing how as practical matter that distinction can be justified in the circumstances of this case. [14] The 17th edition of Williams “Obstetrics” (Appleton-Century-Crofts) has this to say: Obstetrics is multifaceted subject, with close and numerous relations to other branches of medicine. It is so intimately related to the kindred subject of gynaecology that obstetrics and gynaecology are generally regarded as one specialty. Gynaecology deals with the physiology and the pathology of the female reproductive organs in the nonpregnant state, whereas obstetrics deals with the pregnant state in the broadest sense. Correct differential diagnosis in either obstetrics or gynaecology entails an intimate acquaintance with the clinical syndromes met in both; in addition, the methods of examination and many operative techniques are common to both disciplines. It is therefore obligatory that every obstetrician be experienced in gynaecology, and vice versa. [15] In “Principles of Gynaecology” by Sir Norman Jeffcoate (4th ed., Butterworths)) the following occurs: It may be added that, according to definition, obstetrics (the study of childbirth and its disorders) is merely one aspect of gynaecology and, in practice, the two cannot properly be separated. [16] It is of interest that those who created the title for the department to which Dr. Burgess had been appointed did not differentiate between obstetrics and gynaecology but combined them. No attempt to differentiate between them in relation to Dr. Burgess's competence or practice was made either by the M.A.C. on the two occasions on which it had to consider these questions, or the board of management. Yet board of three lay persons, that is, persons who are not members of the medical profession, rests decision of importance on presumed differentiation. [17] In terms of evidence there was no attempt made by anyone in the lengthy process anteceding the proceedings in this court to make that differentiation. The evidence put forward related to the totality of Dr. Burgess’s practice in the hospital. It is difficult to see how the evidence could be sifted by the Appeal Board in retrospect into two compartments. It is thus difficult to see how the Board could conclude that the doctor’s standard of practice in obstetrics was unacceptable and yet at the same time conclude that his standard of practice in gynaecology was acceptable. The Board makes no attempt to explain or justify it. Its bald statement that “the hospital has not made out sufficient case to deny Dr. Burgess’s privileges in gynaecology” does not assist. [197] This case suggests that while the distinction can be made, there must be sufficient evidence to do so. fully appreciate that in the instant case there is some evidence of such distinction, but the shortfalls in Dr. Olatunbosun’s opinion have already been identified. As with other aspects of this physician’s evidence, his opinions seem to be centred on what he would have done, how he views situation and how he would have handled matters, as opposed to providing objective and helpful information to the trier of fact. It is often pure opinion as opposed to true expert opinion. [198] As well, viewing all of the evidence on this point, it appears that obstetrics and gynecology were linked by both the appellant and respondent. Indeed, the appellant’s affidavit sworn May 9, 2015 links those terms throughout. His residency program (para. 5) was in both. His fellowship was obtained in the Royal College of Obstetrics and Gynaecology. At the May 20, 2015 hearing the appellant indicated that without hospital privileges his intention was to carry on his practice within his private clinic but did not indicate that he would limit himself to gynecology. Further, the SMO’s evidence was that the appellant’s conduct was not limited to either field, but intersected with both obstetrics and gynecology. There was at least some evidence which tended to show that the concerns of the SMO as to the appellant’s practice were not limited to the obstetrical side, and that there was an intersection between obstetrics and gynecology when all the SMO’s concerns as to patient care and management were considered. [199] Considering the evidence as whole cannot conclude the Tribunal’s decision on this point was unreasonable. This ground of appeal does not succeed. 14. If the appellant succeeds on any of these grounds, what is the appropriate remedy? [200] As indicated, the appellant meets with success on substantial number of his grounds of appeal. The court must now turn to the type of remedy to grant. [201] Dr. Abouhamra submits the remedy is to quash the Tribunal decision and reinstate his privileges. It is argued that by implication, this should bring the discipline proceedings to close because the suspension (as upheld) amounted to the referral for discipline and if that suspension is quashed, there is nothing to proceed before the discipline body. [202] The respondent argues that the matter could be referred back for adjudication. In support is cited Osteria De Medici Restaurant Ltd. Yaworski. [203] have carefully considered this issue and find that this is not an appropriate case for referral for further adjudication. That will add further delay for Dr. Abouhamra, who has already sustained substantial personal and professional prejudice from the erroneous and unreasonable findings of the Tribunal. Conclusion [204] Accordingly the decision of the Tribunal to uphold the interim suspension of privileges is quashed, and Dr. Abouhamra’s hospital privileges in obstetrics and gynecology are forthwith reinstated. [205] The appellant invited the court to also quash the pending discipline proceedings. It strikes me that this is beyond the strict jurisdiction of this court’s powers on this type of appeal. However, if the operative referral mechanism to discipline was the Board’s decision, and that has been overturned, it may well be that the discipline matter is at an end. That, however, is an argument for another day and make no direct ruling on same. [206] The parties have leave to speak to costs. J. R.W. DANYLIUK

HELD: The appeal was granted on the basis of the first two grounds as well as others. The court quashed the tribunal’s decision and reinstated the appellant’s hospital privileges. The court reviewed the transcript of the tribunal’s hearing and its written decision. With regard to the first two issues, it found that the tribunal had erred in law in the following ways: 1) by failing to conduct a de novo hearing as required. It did not refer to the expert opinion submitted by the appellant as new evidence at the hearing; and 2) by failing to explain its decision. It did not refer to the new evidence nor did it state how it had reconciled the conflicting expert opinion evidence offered by the appellant and the respondent. It merely accepted the evidence of the SMO’s experts.

c_2016skqb293.txt

Goldenberg NOVA SCOTIA COURT OF APPEAL Citation: Embanks v. Nova Scotia (Workers’ Compensation Appeals Tribunal), 2008 NSCA 28 Date: 20080415 Docket: CA 280520 Registry: Halifax Between: Wesley Embanks Workers’ Compensation Claimant (Claim No. 1895971) v. Nova Scotia Workers’ Compensation Appeals Tribunal and the Workers’ Compensation Board of Nova Scotia Respondents and Canadian Manufacturers Exporters Association Intervenor Judges: Cromwell, Saunders and Oland, JJ.A. Appeal Heard: March 19, 2008, in Halifax, Nova Scotia Held: Appeal dismissed per reasons for judgment of Cromwell, J.A.; Saunders and Oland, JJ.A. concurring. Counsel: Kenneth H. LeBlanc and Linda Zambolin, for the appellant Alexander MacIntosh, for the respondent Nova Scotia Workers’ Compensation Appeals Tribunal Madeleine Hearns and Paula Arab, for the respondent Workers’ Compensation Board of Nova Scotia David Mombourquette for the Intervenor Reasons for judgment: I. INTRODUCTION: [1] This appeal turns on one main question: in deciding the worker’s gradual onset stress claim under the Government Employees Compensation Act, R.S.C. 1985, c. G-5 (GECA), was the Workers’ Compensation Appeals Tribunal (WCAT) wrong to assess the nature of the workplace events and stressors from an objective point of view? [2] In my view, the answer is no. WCAT correctly decided that compensable gradual onset stress requires that there have been work-related events or stressors that are unusual and excessive viewed objectively, that is, in comparison to those experienced by an average worker in the same or similar occupation. [3] would dismiss the appeal. II. ISSUES AND STANDARD OF REVIEW: [4] WCAT found the worker did not qualify for benefits for gradual onset stress under GECA because, in its view, the workplace stressors experienced by the worker were not “... unusual and excessive in comparison to the work-related events or stressors experienced by an average worker in the same or similar occupation.” Workers’ Compensation Board (WCB) Policy 1.3.6 mandates this sort of objective approach. WCAT found that this reflects the law which was in place before the Policy came into effect in July of 2005. At the heart of the appeal is whether WCAT was wrong to take this approach and if not, whether WCAT applied it unreasonably to the worker’s situation. [5] The worker submits that WCAT erred in three respects: (i) in finding that the worker\'s subjective reaction to external stressors in the workplace was not relevant to determining if he suffered a compensable accident under s. 4(1) of the GECA; (ii) in interpreting and applying the principles required for determining the presence of unusual and excessive stressors in the workplace required for compensable accident under s. 4(1) of the GECA; and (iii) in rejecting and failing to give adequate weight to the opinion of the worker's treating psychologist in the absence of evidence to the contrary to rebut that opinion. [6] There is no dispute about the standard by which we should review these questions on appeal. The question of whether WCAT applied the correct legal test in this case (the first issue) is reviewed for correctness. How it applied that test in light of the evidence in this record (the issue raised by the second and third grounds of appeal) is reviewed according to the reasonableness standard. Counsel agree that this is consistent with the principles very recently enunciated by the Supreme Court of Canada in Dunsmuir v. New Brunswick, 2008 SCC (CanLII). A. First Issue: [7] As noted, the first ground of appeal is that WCAT erred in finding that the worker’s subjective reaction to external stressors in the workplace was not relevant to determining if he suffered compensable accident under s. 4(1) of GECA. The worker submits that in applying an objective approach, WCAT erred in two, related respects. The worker’s position is that the Policy is more restrictive than the law in place before its adoption. It was wrong, the worker contends, to find that Policy 1.3.6 did not change the law and to rely in support of that conclusion on court decisions dealing with traumatic onset stress. WCAT also erred, the worker says, by failing to give GECA the sort of broad and liberal interpretation that should be accorded to workers’ compensation legislation. [8] cannot accept these submissions. For the reasons which follow, my view is that WCAT correctly applied the objective approach to determining whether there were workplace events or stressors sufficient to support a claim for gradual onset stress under GECA and that such an approach was the correct one, both under Policy 1.3.6 and under the general law applying to GECA claims in Nova Scotia. This approach is consistent with and furthers the underlying purposes and scheme of the statute. [9] Before turning to my analysis of these points, it will be helpful to set out some background about workers’ compensation for gradual onset stress, the particulars of the worker’s claim and WCAT’s decision. 1. Gradual Onset Stress under GECA: (a.) Before Board Policy 1.3.6: [10] There is significant difference between the treatment of gradual onset stress under the federal and provincial workers’ compensation statutes. This difference gave rise to controversy and uncertainty about whether, and under what circumstances, gradual onset stress may be compensable under GECA. [11] Gradual onset stress is not compensable injury under the provincial Workers’ Compensation Act (WCA), S.N.S. 1994-95, c. 10. It is specifically excluded from the definition of “accident” by s. 2(a)(iii) of WCA. However, there is no comparable express exclusion under GECA. It follows that, under GECA, whether gradual onset stress is compensable turns on whether it is “... personal injury by an accident arising out of and in the course of his employment” as provided for in s. 4(1)(a) of GECA. The term “accident” is not defined in GECA; the statute simply lists certain matters that are included. The question, therefore, is whether the events giving rise to the stress fall within the term “accident”, either because they fall within the express statutory inclusions (i.e., “a wilful and intentional act” or “a fortuitous event occasioned by physical or natural cause”) or because they should be included by judicial interpretation. [12] The difficulty of this and related questions gave rise to uncertainty. There was the question of whether gradual onset stress was compensable at all under GECA. WCAT had often decided that it was, but the issue was unresolved by this Court. Beyond this threshold question, there was uncertainty about the conditions under which gradual onset stress should be recognized as workplace injury. In particular, there was uncertainty about whether the existence of workplace stressors should be assessed objectively or subjectively. (b.) Board Policy 1.3.6: [13] The Board exercised its policy-making authority to bring clarity to these issues. It adopted Policy 1.3.6 which applies to all decisions made on and after July 25, 2005. The Policy provides that both gradual onset and traumatic event stress are compensable under GECA and sets out the conditions under which each type of stress is compensable. [14] To qualify as gradual onset stress, the Policy sets out four conditions which must be met. Most relevant to this appeal is the first requirement, that the workplace events or stressors must be “unusual and excessive in comparison to those experienced by an average worker in the same or similar occupation.” This requires what is often referred to as an objective approach to assessing the nature of the workplace stressors. The four requirements under the Policy are these: (i) The work-related events or stressors experienced by the worker are unusual and excessive in comparison to the work-related events or stressors experienced by an average worker in the same or similar occupation; (ii) The worker is diagnosed with mental or physical condition that is described in the DSM IV; (iii) The mental or physical condition is caused by the work-related events or stressors; and (iv) The condition is diagnosed in accordance with the DSM IV by health care provider being either psychiatrist or clinically trained psychologist registered with the Canadian Register of Health Service Providers in Psychology. [15] The Policy also sets out certain work-related events that are non-compensable. These include mental or physical conditions caused by labour relation issues or routine employment related actions such as interpersonal relationships and conflicts, performance management, and work evaluation. 2. The Worker’s Claim: [16] The worker was off work from mid February until July of 2005. He sought benefits on the basis that his loss of earnings resulted from stress arising out of and in the course of his employment as civilian employee of the Department of National Defence. The Board refused to recognize his claim, position maintained by hearing officer and ultimately by WCAT in the decision under appeal. In brief, the background to the claim is this. [17] The worker filed Report of Accident on March 2nd, 2005 claiming that he had suffered work-related stress due to physical and psychological harassment since 1999 by management and staff in his workplace. As set out in the worker’s factum, he claimed that his stress injury arose especially from the following: 1. the employer’s failure to accommodate him with respect to parking when he returned to work in March of 1999 following back injury he suffered in June of 1998. 2. an incident in November of 2002 when manager pushed him against photocopier machine during dispute over whether he had permission to make copy of confidential assessment report; 3. his concern in November and December of 2004 that former supervisor who had previously abused him would again become his supervisor; [18] The worker also referred to another incident, but my view is we cannot consider it on appeal. There is evidence that in October, 2005, supervisor “blew up” at the worker, shouted profanities and pointed his finger. WCAT, however, decided that it could not consider this aspect because it occurred after the worker’s February, 2005, report of accident, the worker continued to work after this incident and there was no medical evidence concerning the impact that event may have had on him. WCAT not having taken this incident into account and there being an inadequate factual record with respect to it, we should not now attempt to consider this incident in our analysis of the appeal. [19] The worker first sought counselling for stress in December 2004 or January 2005. Physician’s Report (dated April 12, 2005) advised that the worker had been off work on stress leave due to conflict at work since February 12, 2005. report dated February 10, 2005 from Ms. Sylvia Frausin, the worker’s treating psychologist, advised that he had been experiencing symptoms of generalized anxiety disorder for more than six months and his symptoms included restlessness, fatigue, difficulty concentrating, irritability, muscle tension, and sleep problems. Ms. Frausin stated that, although the worker did not present as clinically depressed, he exhibited some symptoms of depression. Ms. Frausin was concerned that the worker’s mental health would deteriorate if he was not accommodated in another work setting. [20] Ms. Frausin’s report dated September 16, 2005 stated that, in terms of stress, the worker’s workplace was the source of the only change in his life. The worker had no change in his home and financial situations that would have caused increased stress. Ms. Frausin’s report dated November 18, 2005 identified three significant workplace stressors for the worker: (1) his frustration surrounding his attempts to secure parking spot close to his work area to accommodate his back injury after he returned to work in 1999; (2) his belief, approximately from April to November 2004, that he was not given appropriate training for new computer system and that supervisor withheld new computer password from him for several months; and (3) the incident in November 2002, when manager pushed him against photocopier. [21] WCB Medical Advisor, Dr. Heather Zitner, provided an opinion dated April 22, 2005 advising that, on reviewing the claim, she was unable to relate the worker’s condition to his employment duties. [22] case manager with the WCB made decisions denying the worker’s claim for recognition because his stress injury was not personal injury by accident arising out of and in the course of his employment. The worker appealed unsuccessfully to Board hearing officer who confirmed the case manager’s decision. The worker appealed further to WCAT. 3. WCAT’s Decision: [23] As noted, with respect to the claim based on gradual onset stress, WCAT concluded that the workplace stressors experienced by the worker were not “... unusual and excessive in comparison to the work-related events or stressors experienced by an average worker in the same or similar occupation.” As Policy 1.3.6 applies only to decisions made on or after 25 July, 2005, WCAT had to confront the issue of whether the Policy should be applied to the decisions relating the worker’s claim in this case. WCAT concluded that whether the Policy applied or not made no difference. With respect to the case in hand, the Policy, in WCAT’s opinion, simply codified the better view of the legal principles which applied before its effective date. As WCAT put it: ... find that the argument [about the application of the Policy] is entirely academic in circumstances such as this one where the impugned policy essentially embodies otherwise-binding jurisprudence. In other words, absent Policy 1.3.6, would still require the worker to meet standard set out in the cases and decisions discussed above. ... find nothing in Policy 1.3.6 which differs materially from the interpretation of s. 4(1) of GECA set out in case law, as it relates to the Worker.” (Emphasis added) [24] Turning to the merits of the claim, WCAT concluded that, viewed objectively, the incidents which Mr. Embanks relied on were not unusual and excessive work-related stressors. As the Tribunal put it: ... When viewed objectively, cannot find that reasonable person would conclude that the workplace events described herein were so unusual or excessive so as to give rise to work-related stress claim. 4. Analysis of the Worker’s Submissions: (a.) The Policy did not narrow the law and WCAT did not err in relying on traumatic onset stress decisions to support its position: [25] The appellant submits that WCAT was wrong to say that the Policy did not narrow the pre-existing law. The appellant’s position is that the Policy makes it significantly more difficult than it was previously for federal employees to establish psychological stress injury claim. WCAT was wrong, the worker maintains, to find support for its conclusions in court decisions dealing with traumatic onset stress. [26] The appellant points to two main ways in which the Policy is more restrictive than the prior law. The first is the most directly relevant to this appeal and concerns the place in the analysis of the worker’s subjective view of the workplace events. The second is concerned with the exclusion of work-related events such as “routine employment related actions” and “labour relations issues”. should note that the appellant is not challenging the legality of the Policy in this appeal. (i.) An objective or subjective approach to the workplace stressors? [27] The appellant refers us to number of WCAT decisions in the years from 1996 to 2000 which, he submits, are inconsistent with the approach required under the Policy. However, my view is that, before Policy 1.3.6 was adopted, there was some inconsistency within WCAT concerning whether an objective or subjective approach should be taken to assessing the workplace stressors. However, agree with the Appeal Commissioner in this case that the Policy sets out the better view of the law and should be taken as declaratory of the principles to be applied in this regard to all stress claims under GECA. This view is consistent with the recent decisions of WCAT panels and with judicial decisions. [28] The decision of the Court in Canada Post Corp. v. Nova Scotia (Workers’ Compensation Appeals Tribunal) (Nurnber), 2004 NSCA 83 (CanLII), 224 N.S.R. (2d) 276 (C.A.) briefly reviewed the state of the law at the Tribunal level at that time. As noted earlier, it was then an open question in this Court as to whether gradual onset stress was compensable under GECA. While WCAT had frequently found such claims to be compensable, there were differing tests applied by different appeal commissioners. While agree with the appellant that some WCAT decisions applied mainly subjective test, others took more objective approach: see, for example, 2002-601-AD (February 28, 2003)(N.S.W.C.A.T.). [29] WCAT, in decisions by two differently constituted three person panels, has decided that the requirement that the stressors be viewed objectively as set out in the Policy is consistent with the law before the Policy: see 2006-425-AD (February 19, 2007) (N.S.W.C.A.T.) and 2006-129-AD (January 12, 2007) (N.S.W.C.A.T.) reversed on other grounds sub nom Bishop v. Nova Scotia (Workers’ Compensation Appeals Tribunal), 2008 NSCA 29 (CanLII), released concurrently. This was also the view of the Appeal Commissioner in this case. [30] In reaching this conclusion, WCAT relied, in part, on two decisions dealing with traumatic onset stress, Logan v. Nova Scotia (Workers’ Compensation Appeals Tribunal, 2006 NSCA 88 (CanLII), 246 N.S.R. (2d) 146 (C.A.) and D.W. v. Workplace Health, Safety Compensation Commission and Via Rail Canada Inc., 2005 NBCA 70 (CanLII), 288 N.B.R. (2d) 26 (C.A.). The appellant submits that WCAT was wrong to rely on these cases as they did not deal with an objective assessment of stressors in the context of gradual onset stress but rather with what could constitute traumatic event. While that is, of course, what the cases were concerned with, agree with WCAT that some of the reasoning in Logan and D.W. supports the conclusion that the existence of stressors must be viewed in the first instance objectively in the sense have described. [31] At the root of the inquires in those cases, as in this one, is whether there has been an “accident” within the meaning of the legislation. note that in Rees v. Canada (Royal Canadian Mounted Police), 2005 NLCA 15 (CanLII), 246 Nfld. P.E.I.R. 79 at para. 32, the Court held under GECA that “... given an ordinary reading of the language, the definition of “accident” clearly is sufficiently broad to include gradual onset stress which results from [a] wilful and intentional [act or] acts of someone other than the employee.” The same “ordinary reading” of the term “accident” (absent some express statutory expansion of the term beyond its ordinary meaning) suggests that it is not appropriate to speak of an “accident” as something that occurred only in the perception of the worker. To put it simply, the question of whether there was an “accident” in the ordinary sense of the word cannot be answered by deciding that the worker thought there had been an accident. Absent statutory expansion of the definition, such an approach is, in my view, inconsistent with the scheme of workers’ compensation legislation as set out in Logan, supra at paras. 84-88 and W.D., supra at paras. [32] In short, while accept the appellant’s submission that the law prior to the Policy was not settled, accept WCAT’s position that the Policy is declaratory of the better view of the law on this aspect of gradual onset stress claims under GECA. [33] It is important to note, however, that this objective view relates to the assessment of the nature of the events which the worker claims gave rise to the stress. That these events are to be examined objectively in the sense required under the Policy does not mean that the worker’s perception of the events is irrelevant or should be ignored in determining whether there has been an injury by accident arising out of and in the course of employment. [34] Without attempting to be exhaustive, there are various ways in which the worker’s perceptions are relevant and therefore should be considered. For example, the worker’s evidence about the nature of the events is, of course, relevant evidence bearing on that issue. While the worker’s perception is not necessarily controlling, this does not mean that the worker’s evidence about the events should either be treated as suspect or ignored. As further example, the worker’s own, subjective reaction is relevant to whether the required link between the events and the disabling stress has been made out. As in all workers’ compensation claims, there must be link between the injury and the accident. As GECA puts it, the employee must be “... caused personal injury by an accident” (s. 4(1)(a)(i)), (emphasis added). Thus, there are certain subjective elements which should be considered in the sense that one must assess the effects on this particular worker of the workplace stressors. In other words, once persuaded of the objective facts that there have been unusual and excessive stressors compared to those experienced by an average worker in the same or similar occupation, it is necessary to go on to consider whether those events, in the particular case, did give rise to disabling stress. [35] To put it in simple language, the events must be excessively and unusually stressful, objectively viewed and, in the actual case of the individual worker, give rise to the mental or physical condition on which the claim is based. do not understand WCAT to say anything contrary to this in its reasons in this case. (b.) “Labour relations issues” [36] As noted earlier, the Policy excludes from compensation certain types of work-related events: Non-Compensable Work-Related Events Mental or physical conditions are not compensable when caused by labour relation issues such as decision to change the worker’s working conditions; decision to discipline the worker; decision to terminate the worker’s employment or routine employment related actions such as interpersonal relationships and conflicts, performance management, and work evaluation. [37] The appellant submits that this provision of the Policy excludes gradual onset stress that would have been compensable before the Policy came into force. In support of this submission, the appellant relies on the decision of the Newfoundland and Labrador Court of Appeal in Rees, supra. The premise of this argument is that the claim, which was found to be within the jurisdiction of the workers’ compensation authority in Rees, would be excluded by the Policy’s limitations on claims relating to labour relations issues. [38] do not accept this premise. In Rees, the worker, at the request of an investigating policy agency, gave statement in relation to alleged misconduct of police officer. Contrary to assurances given to him at the time, the statement was subsequently disclosed to the officer in the course of hearings in relation to allegations against that officer. Thereafter, the worker alleged that he suffered harassment by the officer. In my view, claims of this nature would not be excluded by the so-called “labour relations” limitations in Policy 1.3.6. Providing statement to the police and suffering harassment from the target of the investigation could not be described as “... labour relations issues such as decision to change [his] working conditions, decision to discipline [him or] decision to terminate [his] employment.” These complaints did not relate to “routine employment related actions such as interpersonal relationships and conflicts, performance management, and work evaluation.” [39] The Rees decision does not persuade me that the Policy’s exclusion concerning labour relations issues is more restrictive than the general law that applies absent the Policy. (c.) Interpreting remedial legislation: [40] The worker submits that workers’ compensation legislation is remedial and should be interpreted liberally. Of course, accept this. However, workers’ compensation provisions must be interpreted in way that is consistent with the scheme and purpose of the legislation. As the Interpretation Act, R.S.C. 1985, c. I-21, s. 12 makes clear, “fair, large and liberal” interpretation must be directed to interpreting legislation so as to “assure the attainment of its objectives”. know of no place in workers’ compensation law in which the very existence of an accident is assessed from the worker’s subjective view of events. An objective assessment, as set out in the Policy, is consistent with the scheme and purpose of GECA and, in my view, furthers its overall intent to provide no fault compensation for injuries resulting from workplace accidents. 5. Conclusion on first issue: [41] In summary, WCAT did not err by considering whether stressors experienced by the worker had been unusual and excessive on an objective basis in the sense that they are compared to the work-related events or stressors experienced by an average worker in the same or similar occupation. This requirement, now embodied in Board Policy 1.3.6, sets out the better view of the law that applies even in the absence of the Policy. B. Second Issue: Did WCAT unreasonably fail to give weight to the opinion of the worker’s treating psychologist? [42] The appellant submits that WCAT unreasonably applied the relevant legal principles to the facts. As the appellant puts it in his factum: The Appeal Commissioner’s reasoning process was unreasonable in that, having found there were unusual or excessive stressors in the Worker’s workplace (she accepted that “interpersonal conflict and ineffective management contributed to toxic work environment”), and faced with Ms. Frausin’s evidence supporting causal link between those stressors and his stress injury, she failed to draw that causal link. [43] The premise of the appellant’s submission is that WCAT found that there had been, in fact, excessive stressors in the workplace. cannot accept this premise. [44] It is true, as the appellant points out, that WCAT characterized the appellant’s workplace as “... very negative work environment [rife] with fear, intimidation and bullying.” (reasons, p. 14) and as “toxic work environment” (reasons, p. 16) Contrary to the appellant’s submissions, however, WCAT did not find that there were “unusual or excessive” stressors in the workplace which could ground claim for gradual onset stress. It found that there were not. refer to p. 15 of WCAT’s decision where it is stated: When viewed objectively, cannot find that reasonable person would conclude that the workplace events described herein were so unusual or excessive so as to give rise to work-related stress claim. [45] Again, at page 17 of its reasons, WCAT stated: ... the events in question are neither unusual, atypical or something reasonable person would consider capable of causing disabling reaction. [46] WCAT analyzed in considerable detail the evidence with respect to all of the matters relied on by the appellant. WCAT made clear finding that there were no stressors on which claim for work-related stress could be based. In light of that finding, for which there is plausible support in the record, the worker’s claim for gradual onset stress could not succeed. C. Third Issue: Did WCAT Unreasonably Fail to Give Weight to the Expert Evidence? [47] The appellant submits that, having found that there were unusual and excessive stressors in the workplace, WCAT erred by unreasonably ignoring the expert evidence adduced by the appellant and, instead, relying on the Commissioner’s own sense of whether the events gave rise to the worker’s disabling condition. [48] In my respectful view, the answer to this submission is the same as to the previous one. For reasons have already set out, do not accept the appellant’s contention that WCAT found that there were unusual and excessive events that could ground claim for compensable gradual onset stress. WCAT, in my view, found the opposite. That being the case, the appellant’s claim based on gradual onset stress could not succeed. IV. DISPOSITION: [49] I would dismiss the appeal. Cromwell, J.A. Concurred in: Saunders, J.A. Oland, J.A.

The worker was unsuccessful in his claim for compensation for gradual onset stress when the Workers' Compensation Appeal Tribunal (WCAT) found that the conditions in his workplace did not constitute unusual or excessive stressors as required under the terms of the relevant Board policy. The worker appealed, arguing, inter alia, that the WCAT erred in finding that his subjective reaction to the stressors in the workplace was not relevant. Appeal dismissed; the WCAT correctly applied the objective approach in determining whether there were workplace events or stressors sufficient to support a claim for gradual onset stress. The Board policy reflected the previous applicable law; namely, that workplace events and stressors must be unusual and excessive in comparison to the work- related events or stressors experienced by an average worker in the same or similar occupation.

2_2008nsca28.txt

J. IN THE PROVINCIAL COURT vs. CRAIG NICKERSON (Cite as v. Craig Nickerson 2002 NSPC 004) DECISION The Honourable Judge C. H. F. Williams, JPC Delivered orally March 1st, 2002 v. Craig Nickerson Delivered orally March 1st, 2002 The Honourable C. H. F. Williams, JPC Counsel: Mr. R. Woodburn, Crown Attorney Mr. G. Allen, Defence Attorney Introduction Six persons including the accused, Craig Nickerson, shared an upstairs apartment at 6319 Pepperill Street in the Halifax Regional Municipality. The complainant, Brent Andrews, is the boyfriend of another tenant Marilyn Veinot. Occasionally, and usually when they had been drinking, the male tenants would get together in the basement to indulge in wrestling and horseplay. They called these occasions “the fight club.” The female tenants considered “the fight club” as strange bonding ritual something that the men did to rid themselves of their frustrations. Findings of Fact After hearing the evidence and on my assessment of the witnesses as they testified, find that on January 6, 2001, the tenants invited some guests, including the complainant, for sociable and convivial evening together. The complainant was regular visitor to the apartment and had heard about the fight club from Veinot. In any event, as the evening progressed and all present were in various stages of intoxication, the accused invited the complainant to go to the basement to participate in the fight club. The complainant willingly accepted the invitation. On arrival in the basement, the complainant took off his shirt and squared off with the accused as if to wrestle. However, instead of wrestling hold, he advanced and struck the accused in the face. Surprised and stunned, the accused put his arms around the complainant to prevent him from striking again, and, as result, they stumbled to the floor. In brief struggle that followed, the accused ended on top of the complainant and commanded the situation. However, after calming an agitated complainant and after receiving assurances of no further belligerency, he got up and allowed the complainant to stand. The complainant hurt his knee during this contact. Angrily, the complainant left the basement and went upstairs with Veinot into her bedroom from where he was shouting threats and swearing at the accused. Concomitantly, Veinot was persuading him to leave the apartment and he was arguing loudly with her. Nonetheless, the accused, ostensibly to protect Veinot, opened her closed bedroom door, entered and angrily confronted the complainant. Veinot, who had not requested assistance from anyone, stood between them and implored them not to fight. Some persons present also came to the bedroom. Nevertheless, in spite of her efforts, the complainant swung at the accused and struck him in the face. In the sudden commotion that followed, someone pushed Veinot aside. Again, the accused put his arms around the complainant and in the confined space of the bedroom their momentum caused them to crash into glass window that broke. They also stumbled into dresser and then ended on the floor with the accused on top of the complainant. While on the floor they struggled and exchanged blows. However, at some stage of their contact, the complainant sustained a nasal fracture for which he sought and received medical attention. The following day, after receiving an allegation of misconduct, the police arrested and charged the accused with assault causing bodily harm to the complainant. The accused does not deny that the complainant was hurt but argues self defence. Issue Is self defence applicable in the circumstances of this case? Applicable Legislation Here, the applicable sections of the Criminal Code, are: (1) Every one who is unlawfully assaulted without having provoked the assault is justified in repelling force by force if the force he uses is not intended to cause death or grievous bodily harm and is no more than is necessary to enable him to defend himself. (2) Every one who is unlawfully assaulted and who causes death or grievous bodily harm in repelling the assault is justified if (a) he causes it under reasonable apprehension of death or grievous bodily harm from the violence with which the assault was originally made or with which the assailant pursues his purposes; and (b) he believes, on reasonable grounds, that he cannot otherwise preserve himself from death or grievous bodily harm. 35. Every one who has without justification assaulted another but did not commence the assault with intent to cause death or grievous bodily harm, or has without justification provoked an assault on himself by another, may justify the use of force subsequent to the assault if (a) he uses the force (i) under reasonable apprehension of death or grievous bodily harm from the violence of the person whom he has assaulted or provoked, and (ii) in the belief, on reasonable grounds, that it is necessary in order to preserve himself from death or grievous bodily harm; (b) he did not, at any time before the necessity of preserving himself from death or grievous bodily harm arose, endeavour to cause death or grievous bodily harm; and (c) he declined further conflict and quitted or retreated from it as far as it was feasible to do so before the necessity of preserving himself from death or grievous bodily harm arose. (1) person commits an assault when (a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly; Analysis The accused submitted that he is entitled to rely on Criminal Code sections 34 and 35. He submitted that the complainant did not know how or when during their contact, if at all, he sustained his injuries. Furthermore, the complainant was the aggressor. Essentially, the accused’s submission was that he was scared and only responded to blows delivered by the complainant without the intention to hurt the complainant. On the other hand, the Crown submitted that, from the beginning, the accused was the aggressor. From this perspective, there was no dispute that the complainant sustained his injury in the bedroom, where on the complainant’s testimony, the accused struck him in the face. However, it seems to me, on the evidence that accept, the evening’s confrontation between the accused and the complainant was one continuing episodic event. It started with the struggle in the basement and ended with the struggle in Veinot’s bedroom. In my view, initially, both parties voluntarily agreed to participate in physical contest. Therefore, both parties reasonably would have appreciated the risks involved while participating in the fight club antics. Further, it is reasonable to conclude that they also consented explicitly or by implication to some form of bodily contact and the risk of injury that would occur within any existing customary norms or rules of the fight club. In the basement, however, the complainant’s conduct took the accused by surprise but the event ended unsatisfactorily for the complainant. It was also unresolved from the accused’s point of view as the complainant apparently did not play by the assumed rules. Thus, in my view, on the evidence, it is reasonable to conclude that they both had bruised egos and were immaturely seeking an opportunity to resolve their differences through physical force. Because of my factual findings, the accused cannot rely on the Criminal Code s.35, for his defence. This section only affords self defence in cases of aggression. Firstly, for this section to apply, the accused would have had to commence the assault on the complainant without justification and without the intention to cause him grievous bodily harm. Secondly, the accused must have tried to stop the fight, if at all possible, by quitting or retreating before it became necessary for him to protect himself from serious injury. Thirdly, before the fight reached the stage where he felt threatened with serious bodily harm, he himself must not have tried to inflict serious bodily harm on the complainant. Here, the accused has not admitted nor did find that he was the aggressor. Although the accused might have invited the assault, he did not strike the initial blow with the intention of hurting the complainant and without any justification. In fact, he did not strike the initial blow. In addition, found that there was no evidence to support the proposition that without justification the accused provoked an attack upon himself by the complainant. Furthermore, in my view, the accused did not shy away from confronting the complainant nor did he take any reasonable steps to avoid such hostile contacts. However, by virtue of the Criminal Code s.34(1) person is justified in using force to repel an unprovoked unlawful assault. Thus, the initial question is: Was the application of force to the person of the accused by the complainant unprovoked and unlawful? Further, the accused must not have intended to cause grievous bodily harm to the complainant and he must have used no more force than, in the circumstances, was necessary to protect himself. Accordingly, to establish the factual underpinning of his defence under s.34(1), must also consider his conduct, as have found. Essentially, must ask myself whether the accused had an honest belief, in all the circumstances, that he was being unlawfully assaulted without having provoked the assault. The Criminal Code, s. 36 states that, “provocation includes, for the purposes of sections 34 and 35, provocation by blows, words or gestures.” [Emphasis added.] “Bodily harm” in s.2 means any hurt or injury to person that interferes with the health or comfort of the person and that is more than merely transient or trifling in nature.” “Grievous bodily harm” is not defined. However, R.v. Bottrell (1981), 1981 CanLII 339 (BC CA), 60 C.C.C.(2d) 211 (B.C.C.A), for the purposes of s.25(3), at p.217 defines the term “grievous bodily harm” as “causing hurt or pain.” Consequently, in assessing his conduct to determine the applicability of s.34 (1), considered, along with my other impressions of the witnesses as they testified, the following: (a) the accused invited the complainant into the basement to wrestle where they had an unsatisfactory and unresolved contact; (b) on his own testimony, the accused met the complainant in the hallway upstairs where the complainant, still upset, stuck him in the face despite Veinot’s efforts to prevent them from fighting; (c) the accused heard the complainant and Veinot arguing in Veinot’s room and the complainant angrily shouting threats at him from Veinot’s room but with the door closed; (d) without any invitation or reasonable justification, the accused entered Veinot’s room to confront the complainant; (e) the complainant suffered nasal fracture during the melee. On the evidence that accept, find, by reasonable inference, that the accused, by his considered conduct, intended to invite an assault upon himself by the complainant. find that given his observed emotional state of the complainant and the complainant’s hostile attitude toward him, the accused's persistence in accosting the complainant, in the circumstances, was provocative and intentional, or wilfully blind or foolhardy. He knew that the complainant was dissatisfied with the outcome of the physical contact in the basement. Further, he was aware that the complainant was making threats to even the score. Therefore, concluding that he was wilfully blind or foolhardy was difficult. Accordingly, on the evidence, do find, by reasonable inference, that the accused was still prepared to challenge the complainant. therefore conclude that reasonable person, in his position and in those circumstances, reasonably would have perceived that his overall conduct would be provocative to the complainant. Therefore, on balance, it is reasonable to conclude that the assault by the complainant was anticipated by the accused. In my view, he anticipated the complainant’s predictable reaction by indulging in strategic sporadic verbal confrontations. When the facts and the true situation are examined, it seems to me that this was his stratagem as part of the ongoing and unresolved squabble. Thus, his subjective belief that the action of the complainant presented to him an imminent danger of grievous bodily harm and that his counter action was necessary to protect himself, objectively, given his own conduct, in my view, was not reasonable. He was struck twice in the face by the complainant without the opportunity to really even the score. It is therefore reasonable to infer, from the evidence that accept, that the accused was probing for an opportunity to strike back. Consequently, in my opinion, the incidents of the assault, in these circumstances, would not have occurred without the accused “having provoked” them by his conduct. See, for example, R.v. Nelson, (1992) 1992 CanLII 2782 (ON CA), 71 C.C.C. (3d) 449 (Ont. C.A.). As result, it is my opinion, on the analysis that have made, the accused cannot avail himself to the protection of s.34(1). have found that the accused provoked the assault upon himself. Therefore, he may, at first blush, avail himself to the protection of s.34(2). However, as was put by Lamer C.J., in R. v. Petel 1994 CanLII 133 (SCC), [1994] S.C.R.3, [1994] S.C.J. No.1., at paras. 19 It can be seen from the wording of s. 34(2) of the Code that there are three constituent elements of self‑defence, when as here the victim has died: (1) the existence of an unlawful assault; (2) reasonable apprehension of risk of death or grievous bodily harm; and (3) reasonable belief that it is not possible to preserve oneself from harm except by killing the adversary. 20 In all three cases the jury must seek to determine how the accused perceived the relevant facts and whether that perception was reasonable. Accordingly, this is an objective determination. With respect to the last two elements, this approach results from the language used in the Code and was confirmed by this Court in Reilly v. The Queen, 1984 CanLII 83 (SCC), [1984] S.C.R. 396, at p. 404: The subsection can only afford protection to the accused if he apprehended death or grievous bodily harm from the assault he was repelling and if he believed he could not preserve himself from death or grievous bodily harm otherwise than by the force he used. Nonetheless, his apprehension must be reasonable one and his belief must be based upon reasonable and probable grounds. The subsection requires that the jury consider, and be guided by, what they decide on the evidence was the accused’s appreciation of the situation and his belief as to the reaction it required, as long as there exists an objectively verifiable basis for his perception. Thus, the law requires me to ask myself not whether “the accused was unlawfully assaulted” but rather whether “the accused reasonably believed, in the circumstances, that he was being unlawfully assaulted.” It is his state of mind that is relevant. Therefore, here, did he have reasonable apprehension of any danger posed by the complainant? And, if so, did he have reasonable belief that he could not extricate himself otherwise than by injuring the complainant? On the evidence, however, find that there was no “objectively verifiable basis” for the accused's submission, in argument, that he had reasonable apprehension that the complainant would cause him “grievous bodily harm.” Nothing in his testimony, supported his submission, in argument, that he was afraid of the complainant because of some continuing violent act on the part of the complainant towards him. On the contrary, the evidence suggests and find that the accused took every available opportunity to be within the complainant’s space, so to speak, even though he knew that the complainant quite clearly had animosity toward him. In my view, he had the opportunity to leave the complainant alone in that it was not necessary for him to enter Veinot’s bedroom and there to approach the complainant and to become involved in heated argument. He was uninvited and unwelcomed. Therefore, his submission that he entered the room out of concerns for Veinot’s safety, on the evidence and in my view, lacked an air of reality and has no merit. When eventually they did embrace angrily and engaged in fighting, the accused's explanation, in the end and in hindsight, was that he did not intend to hurt the complainant. His explanation was not that he believed on reasonable grounds that he had to fight the complainant as it was not possible to preserve himself from harm otherwise and except by hurting the complainant. Generally, it is reasonable inference that man intends the natural consequences of his act. Here, the accused averred that he intended to fight but not to cause injury to his opponent. However, the natural risk involved in fighting is injury either to one's self or your opponent or both to self and opponent. On the evidence and on my impression of the accused as he testified, think that because he was also injured in the fracas he now baulks at the notion that he should be held criminally responsible for the complainant’s injuries in what started off as consensual physical contact. Consequently, he claims self defence. However, on the analysis that have made, in my opinion, he cannot avail himself to the protection of s.34(2). In short, the facts, as have found, do not support the defence of self defence and the evidence does not lend an air of reality to the submitted factual underpinnings for me to apply the provisions of the Criminal Code sections 34 and 35 for the benefit of the accused. There is no doubt, in my mind that the complainant suffered bodily harm. According to Dr. Thomas Currie, the attending emergency physician, the complainant’s history was injuries to the face that on examination and diagnosis revealed nasal fracture without any obvious evidence of bony deformity. There was significant swelling to the bridge of the nose that needed icing for several days to improve the swelling but would be painful for several months. The injury, however, needed no surgical intervention. The doctor opined that the probable cause of the injury was “blunt trauma.” Further, it would have required “a significant amount of force to break bone.” The critical questions however are: How did it happen? When did it occur? Here, because of the manner in which the parties conducted themselves causation has become the essential factor to establish culpability. Consequently, the questions that must answer are: Was the facial trauma the result of other probable causes? or, Was it the result of force applied intentionally and directly by the accused to the person of the complainant? Here, the injury complained of apparently occurred in the bedroom as the evidence points to the fact that apart from his leg, the complainant was free of any other injuries before the accused entered the bedroom. However, eyewitnesses’ accounts of what happened in the bedroom are conflicting. The complainant testified that the accused struck him first when he was standing and that he offered no response to the accused. He testified that, “nothing happened on the floor.” This version is supported by Veinot. However, another Crown witness, Terri Grant, testified that the complainant threw the initial punch striking the accused in the face. The accused did not hit the complainant when he was standing. They clinched and stumbled into the window and the wardrobe. At that point she and Veinot were pushed out of the bedroom but she could hear “crashing” noises through the open door. Chris Hache, another Crown witness, testified that the complainant threw the first punch and that “they grabbed each other” and with the momentum they fell into the window and then to the floor with the accused on top. While on the floor, they were both throwing blows at each other. the accused was throwing blows to the complainant’s body “from the stomach up.” The complainant’s blows were aimed at the accused’s face. The accused testified that the complainant struck the first blow. He grabbed the complainant and their momentum took them towards glass window breaking it, then into closet and then onto the floor with him on top. On the floor the complainant was punching up at him and he was punching back. He is not sure whether he struck the complainant in the nose. However, the complainant has asserted that he did not receive the injury to his nose when he was on the floor. Consequently, as assessed the witnesses as they testified and my impressions of their testimonies in light of the total evidence, have no doubt and find that the complainant threw the first blow that struck the accused in the face. do not find that the accused first threw punch that struck the complainant in the face while the complainant was standing. Receiving the blow to his face the accused advanced and they grabbed each other. In addition, find that their momentum caused them to stumble into glass window breaking it. Still holding each other they then stumbled into dresser and finally fell together to the floor with the accused on top. In Smithers v. The Queen (1977), 34 C.C.C.(2d)] 427 (S.C.C.) Affirming 1975 CanLII 1284 (ON CA), 24 C.C.C. (2d) 344, the Supreme Court of Canada affirmed that causation is question of fact to be decided by the jury beyond reasonable doubt. But, it is question of law as to whether there is any evidence to put the issue to the jury in the first place. Here, in my view, the Crown did not undertake to show any casual relationship between the blows of the accused, on my findings of fact, and the broken nose sustained by the complainant. There was no well grounded opinion as to the cause. The doctor’s opinion was that it was occasioned by blunt trauma. There was, however, no opinion as to what the blunt trauma would have been consistent with as causative factor. Here, in my opinion, there are too many variables and probabilities. There was the fall into the glass window; the fall into the dresser and the fall to the floor. Rather than speculate, think that the evidence was not only contradictory but also disturbing. Further, on the total evidence, think that the direct factual cause of the injury was also unclear. The Crown has the burden of showing factual causation beyond reasonable doubt. In short, it must prove beyond reasonable doubt, that the blows delivered by the accused to the complainant when they were on the floor were the actual cause or were contributing factors “outside the de minimis range.” Absent the bodily harm this, in my view, was consensual fight. Conclusion Consequently, on the analysis that have made, find that there is insufficient evidence for me to conclude, beyond reasonable doubt, that the accused caused bodily harm to the complainant. This does not mean that the complainant did not suffer bodily harm. It means, in my opinion, on the evidence before me and on the analysis that have made, that the Crown has not proved beyond reasonable doubt the elements of the offence as charged. I find the accused, Craig Nickerson, not guilty, as charged, and will enter an acquittal on the record.

The accused was charged with assault causing bodily harm. The complainant willingly took part in a fight club after which the accused followed him and engaged in a second physical altercation with him. During the fight, the parties fell into a dresser, onto the floor and out a window. At some stage of the fight, the complainant sustained a nasal fracture, which was the basis of the charge. Accused not guilty of assault causing bodily harm. The confrontation between the accused and the complainant was one continuing episodic event and the complainant's actions were provoked by the accused. However, no causal relationship was shown between the blows of the accused and the broken nose sustained by the complainant. There were too many variables and probabilities as to how the complainant's nose might have become broken.

9_2002nspc4.txt

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2007 SKCA 19 Date: 20070214 Between: Docket: 1414 Arlene Lowery and Chuck Lowery Prospective Appellants and The Anchorage Counselling Rehabilitation Services Inc., Erick Gordon, Darlene Kennedy Sarah Longman, Pat Crowe, Candice Pete, Ivan Thomson and Mickey Thomson Prospective Respondents Before: Vancise J.A. (in Chambers) Counsel: Arlene Chuck Lowery on their own behalf Ryan Hrechka for Erick Gordon Sarah Longman Heather Jensen for Ivan Thomson Kenneth Staroszik, Q.C., for Aboriginal Healing Foundation Application: From: Q.B.G. 1005 of 2002, J.C. of Regina Heard: February 14, 2007 Disposition: Application for leave to appeal denied (orally) Written Reasons: February 15, 2007 By: The Honourable Mr. Justice Vancise Vancise J.A. [1] The applicants apply for leave to appeal a decision of Mr. Justice G. A. J. Chicoine wherein he denied the applicants leave to add the Aboriginal Healing Foundation as a defendant and denying the applicants leave to amend the statement of claim by inserting the document entitled “Addendum to the Original Statement of Claim in Support of the Notice of Motion to Amend the above Claim (as per Rule 165).” [2] Arlene Lowery has claimed damages against The Anchorage Counselling and Rehabilitation Services Inc., arising out of her wrongful dismissal. She now seeks to add the Aboriginal Healing Foundation as party defendant to that action. She argues that the Aboriginal Healing Foundation breached funding agreement with The Anchorage Counselling and Rehabilitation Services Inc. The Aboriginal Healing Foundation, asserts that there is no privity at law between it and the plaintiffs. In its submission, if there is breach of funding agreement between the Aboriginal Healing Foundation and the Anchorage Counselling Services, that is matter between those two entities and has nothing to do with the plaintiffs. [3] In any application to add party as defendant, the Court must first decide whether there is prima facie and meritorious claim disclosed in the amending pleading. The onus lies on the plaintiffs to establish on the balance of probabilities that they have reasonable possibility of establishing claim against the party they seek to add. They must establish at a minimum the possibility of a cause of action. I agree with Mr. Justice Chicoine that does not exist here and leave is denied. [4] Similarly, with respect to the application to add the addendum to the statement of claim, I am of the opinion that Mr. Justice Chicoine made no error in refusing the application to amend the statement of claim. [5] For all of the above reasons the application for leave to appeal is denied. There will be no order as to costs.

The applicants apply for leave to appeal a decision wherein the Court denied the applicants leave to add the Aboriginal Healing Foundation as a defendant and denying the applicants leave to amend the statement of claim by inserting the document entitled 'Addendum to the Original Statement of Claim in Support of the Notice of Motion to Amend the above Claim'. HELD: Application for leave to appeal is denied orally. In any application to add a party as a defendant, the Court must first decide whether there is a prima facie and meritorious claim disclosed in the amending pleading. The onus lies on the plaintiffs to establish on the balance of probabilities that they have a reasonable possibility of establishing a claim against the party they seek to add. They must establish at a minimum the possibility of a cause of action. That does not exist here and leave is denied. Similarly with respect to the application to add the addendum to the statement of claim, there was no error in refusing the application to amend the statement of claim.

6_2007skca19.txt

SUPREME COURT OF NOVA SCOTIA Citation: Hayward Estate (Re), 2010 NSSC Date: 20100607 Docket: Probate No. 3492 Dig-308922 Registry: Digby In the Estate of George Michael Hayward Application to Revoke the Grant of Administration Issued to Michael Philip Hayward s. 64(3)(a) LIBRARY HEADING Judge: The Honourable Justice Allan P. Boudreau Heard: June 24, 2009, in Digby, Nova Scotia; last written submissions received January 28, 2010 Subject: Wills Divorce Retroactivity/Retrospectivity Separation Agreements Promissory Estoppel Summary: This case involves the not uncommon situation of divorcing party not changing his or her Will (which Will names the other party as the primary beneficiary) when the divorce is finalized. One of the former spouses then dies and the surviving former spouse claims the estate on the basis of the deceased’s Will, which, in many cases, as executed years prior to the divorce. At issue are recent amendments to the Wills Act, R. S. 1989, c. 505, s. (Wills Act), which addressed this situation, as well as waivers and renunciations contained in the separation and divorce documents. Issue: 1. What are the events which trigger the application of Section 19 of the Wills Act? 2. What is the effect of Section 19A of the Wills Act, if any, upon the 1995 Will of George Hayward? 3. If Section 19A of the Wills Act, has no application to the Haywards’ situation, then are there provisions in the separation and divorce documents which bar Nancy Hayward from acting as executor and benefiting from the estate? 4. Are there any equitable principles which estop Nancy Hayward from now asserting her claim to George Hayward’s estate? Result: Application to revoke the grant of administration issued to Michael Hayward is granted and the Will of George Hayward is declared to be in full force effect. 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: Hayward Estate (Re), 2010 NSSC Date: 20100607 Docket: Probate No. 3492 Dig-308922 Registry: Digby In the Estate of George Michael Hayward Application to Revoke the Grant of Administration Issued to Michael Philip Hayward s. 64(3)(a) Judge: The Honourable Justice Allan P. Boudreau Heard: June 24, 2009, in Digby, Nova Scotia; last written submissions received January 28, 2010. Counsel: Gregory Barro, for the applicant, Nancy Vera Hayward Eric Sturk, for the respondent, Michael Philip Hayward Introduction [1] This case involves the not uncommon situation of divorcing party not changing his or her will (which will names the other party as the primary beneficiary) when the divorce is finalized. One of the former spouses then dies and the surviving former spouse claims the estate on the basis of the deceased’s will, which, in many cases, was executed years prior to the divorce. At issue are recent amendments to the Wills Act, R. S. 1989, c. 505, s. (Wills Act), which addressed this situation, as well as waivers and renunciations contained in the separation and divorce documents. [2] George Michael Hayward (George Hayward) and Nancy Vera Hayward (Nancy Hayward) were married on December 6, 1984. They have one child, son, Michael Philip Hayward (Michael Hayward), born May 30, 1983. [3] George Hayward executed Last Will and Testament on February 10, 1995 (the Will). That Will appointed his then wife, Nancy Hayward, as sole executor and beneficiary of his estate. The Will further provided that if Nancy Hayward did not survive George Hayward for thirty (30) days, then the beneficiary of the estate would be their son, Michael Hayward. [4] George and Nancy Hayward were separated twice during their marriage. The first time was in 1989, which resulted in formal separation agreement dated November 1, 1989; however, they reconciled in 1991. The Haywards separated again in September of 2002 and executed second separation agreement dated June 28, 2004. The June 28, 2004, agreement contained many statements regarding property interests and rights. Some of these agreements are outright waivers and renunciations of interests or claims; whereas, others are promises from one party to the other, which shall refer to later. [5] The parties did not reconcile after the 2004 separation and final Divorce and Corollary Relief Judgments were obtained on September 21, 2004. The Corollary Relief Judgment of September 21, 2004 incorporated by reference the June 28, 2004, separation agreement and all of its settlement terms. The separation agreement is very detailed document, including the financial consideration for the division of property between the spouses. will refer to those arrangements in more detail later. [6] George Hayward did not address the issue of his Will directly at the time of the divorce, by either revoking his Will, or by making new Will. This was apparently not an uncommon occurrence and the Law Reform Commission had been asked to study the situation and make recommendations to the Legislature for possible amendments to the Wills Act. The result was Section 19A, which was added to the Wills Act by Bill No. 23, which received Royal Assent November 23, 2006. Section 19A was proclaimed in force effective August 19, 2008. That Section effectively provided that judgement absolute of divorce nullifies any bequests contained in prior Will of divorced parties. shall set out this Section in more detail later. [7] George Hayward passed away on October 15, 2008, some two months after Section 19A was proclaimed in force. He had not directly addressed the issue of his 1995 Will by change or revocation. The Haywards’ son, Michael, applied for and was granted administration of his late father’s estate by virtue of George Hayward’s 1995 Will and the divorce documents. Nancy Hayward has made application to have Michael Hayward removed and herself appointed as sole executor and declared sole beneficiary of her former husband’s estate on the basis of the same 1995 Will. 1. What are the events which trigger the application of Section 19A of the Wills Act? 2. What is the effect of Section 19A of the Wills Act, if any, upon the 1995 Will of George Hayward? 3. If Section 19A of the Wills Act, has no application to the Haywards’ situation, then are there provisions in the separation and divorce documents which bar Nancy Hayward from acting as executor and benefiting from the estate? 4. Are there any equitable principles which estop Nancy Hayward from now asserting her claim to George Hayward’s estate? ANALYSIS Jurisdiction [8] The court's jurisdiction to deal with the main issue is set out in s. 8(1)(c) of the Probate Act, S.N.S. 2000, c. 31, which permits the court to “effect and carry out the judicial administration of the estates of deceased persons through their personal representatives, and hear and determine all questions, matters and things in relation thereto necessary for such administration.” The Wills Act [9] Section 19A of the Wills Act came into force on August 19, 2008. It provides: Effect of divorce or declaration of nullity 19A Notwithstanding Sections 18 and 19, except where contrary intention appears by the will or separation agreement or marriage contract, where, after the testator makes will, the testator's marriage is terminated by judgment absolute of divorce or is declared nullity, (a) devise or bequest of beneficial interest in property to the testator's former spouse; (b) an appointment of the testator's former spouse as executor or trustee; and (c) the conferring of general or special power of appointment on the testator's former spouse, are revoked and the will shall be construed as if the former spouse had predeceased the testator. [Emphasis added] [10] The amendment was included in S.N.S. 2006, c. 49, s.6, which included various amendments to the Wills Act. Section 19A came into force after the Will was made and after the testator's divorce (2004), but before his death (October 2008). As such, both of the events identified in section 19A the making of the Will and the termination of the marriage by divorce occurred before the section came into force. [11] Also relevant to the operation and construction of will are Sections 22 and 23 of the Wills Act, which provide: Effect of conveyance or other act 22 No conveyance or other act made or done subsequently to the execution of will of any real or personal property therein comprised, except an act by which such will is revoked as in this Act mentioned, prevents the operation of the will with respect to such estate or interest in such real or personal property as the testator has power to dispose of by will at the time of the testator's death. Time of which will speaks 23 Every will shall be construed, with reference to the real and personal property comprised in it, to speak and take effect as if it had been executed immediately before the death of the testator, unless contrary intention appears by the will. [Emphasis added] [12] The Wills Act does not define “testator,” other than to specify, at s. 2(e), that the term “includes married woman.” Retrospectivity [13] Certain general rules under the Interpretation Act, S.N.S. 2006, c.49, s.7 govern the entry of provision into effect. In this case, the Wills Act amending statute was declared to come “into force on such day as the Governor in Council orders and declares by proclamation.” Section 3(3) of the Interpretation Act provides that [w]here an enactment is expressed to come into force on particular day or on day fixed by proclamation or otherwise, it comes into force immediately on the expiration of the previous day... .” Additionally, the Act provides (at s. 9(1)) that “[t]he law shall be considered as always speaking and, whenever any matter or thing is expressed in the present tense, it shall be applied to the circumstances as they arise, so that effect may be given to each enactment, and every part thereof, according to its spirit, true intent, and meaning.” It is, of course, well known that, as provided by s. 9(5), (5) Every enactment shall be deemed remedial and interpreted to insure the attainment of its objects by considering among other matters (a) the occasion and necessity for the enactment; (b) the circumstances existing at the time it was passed; (c) the mischief to be remedied; (d) the object to be attained; (e) the former law, including other enactments upon the same or similar subjects; (f) the consequences of particular interpretation; and (g) the history of legislation on the subject. [14] Substantive legislation is presumed not to operate retroactively or retrospectively. The definitions of the terms “retroactivity” and “retrospectivity” are discussed in Re Thibault Estate, 2009 NSSC (CanLII), [2009] N.S.J. No. 10 (Prob. Ct.), where Duncan, J., at 9, adopted the following passage from the British Columbia Court of Appeal decision in MacKenzie British Columbia (Commissioner of Teachers' Pensions) (1992), 1992 CanLII 229 (BC CA), 15 B.C.A.C. 69: begin by adopting both the language and the analysis of Professor Driedger in Statutes: Retroactive Retrospective Reflections (1978), 56 Can. Bar Rev. 264, and in particular his conclusions which are summarized at p. 276 of that article: 1. retroactive statute is one that changes the law as of time prior to its enactment. (1) retrospective statute is one that attaches new consequences to an event that occurred prior to its enactment. 3. statute is not retrospective by reason only that it adversely affects an antecedently acquired right. 4. statute is not retrospective unless the description of the prior event is the fact‑situation that brings about the operation of the statute. 5. The presumption does not apply unless the consequences attaching to the prior event are prejudicial ones, namely, new penalty, disability or duty. 6. The presumption does not apply if the new prejudicial consequences are intended as protection for the public rather than as punishment for prior event. [15] The question here is whether s. 19A of the Wills Act was intended by the Legislature to have retrospective effect, or whether its application to the present circumstances can be considered to be prospective, as Nancy Hayward argues. The retrospective effect would be the attachment of new consequence the termination of Nancy Hayward’s entitlement under the Will to prior event, namely, the divorce of Nancy Hayward and the testator. [16] The Supreme Court of Canada considered the retrospective operation of statutes in Gustavson Drilling (1964) Ltd. v. M.N.R., 1975 CanLII (SCC), [1977] S.C.R. 271, where Dickson J., for the majority, said at p. 279: The general rule is that statutes are not to be construed as having retrospective operation unless such construction is expressly or by necessary implication required by the language of the Act. An amending enactment may provide that it shall be deemed to have come into force on date prior to its enactment or it may provide that it is to be operative with respect to transactions occurring prior to its enactment. In those instances the statute operates retrospectively [17] In Québec (A.G.) v. Healy, 1987 CanLII 80 (SCC), [1987] S.C.R. 158, the Court said at 24-28: In Maxwell on the Interpretation of Statutes (12th ed. 1969), it is stated at p. 215: Upon the presumption that the legislature does not intend what is unjust rests the leaning against giving certain statutes retrospective operation. They are construed as operating only in cases or on facts which come into existence after the statutes were passed unless retrospective effect is clearly intended. It is fundamental rule of English law that no statute shall be construed to have retrospective operation unless such construction appears very clearly in the terms of the Act, or arises by necessary and distinct implication. And at p. 216: One of the most well‑known statements of the rule regarding retrospectivity is contained in this passage from the judgment of R. S. Wright in Re Athlumney, [1898] Q.B. 551, at pp. 551, 552: "Perhaps no rule of construction is more firmly established than this ‑‑ that retrospective operation is not to be given to statute so as to impair an existing right or obligation, otherwise than as regards matter of procedure, unless that effect cannot be avoided without doing violence to the language of the enactment. If the enactment is expressed in language which is fairly capable of either interpretation, it ought to be construed as prospective only". And further at p. 216: If, however, the language or the dominant intention of the enactment so demands, the Act must be construed so as to have retrospective operation, for "the rule against the retrospective effect of statutes is not rigid or inflexible rule but is one to be applied always in the light of the language of the statute and the subject‑matter with which the statute is dealing." (Carson v. Carson [1964] W.L.R. 511, per Scarman J. at p. 517.) In Acme Village School District (Board of Trustees of) v. Steele‑Smith, 1932 CanLII 40 (SCC), [1933] S.C.R. 47, Lamont J. writes at p. 50: If, however, any doubt as to the legislative intention exists after perusal of the language of the Act, then, as Lord Hatherly [sic], L.C., said in Pardo v. Bingham (1869), Ch. App. 735, at 740: We must look to the general scope and purview of the statute, and at the remedy sought to be applied, and consider what was the former state of the law, and what it was that the Legislature contemplated. In Upper Canada College v. Smith (1920), 1920 CanLII (SCC), 61 S.C.R. 413, Duff J., as he then was, wrote at p. 419 regarding the intent of the legislator: that intention may be manifested by express language or may be ascertained from the necessary implications of the provisions of the statute, or the subject matter of the legislation or the circumstances in which it was passed may be of such character as in themselves to rebut the presumption that it is intended only to be prospective in its operation. [18] Michael Hayward contends that to apply s. 19A in the present case would be prospective application of the statute and not retrospective one, because the Will would not take effect until the testator's death. While that may be so, the two events, the making of the Will and the divorce, both occurred prior to the enactment of s. 19A. Vested Rights [19] As to the companion doctrine respecting non‑interference with vested rights, Dickson, J. said, in Gustavson Drilling at p. 282: The rule is that statute should not be given construction that would impair existing rights as regards person or property unless the language in which it is couched requires such construction: Spooner Oils Ltd. v. Turner Valley Gas Conservation Board [1933 CanLII 86 (SCC), [1933] S.C.R. 629], at p. 638. The presumption that vested rights are not affected unless the intention of the legislature is clear applies whether the legislation is retrospective or prospective in operation. prospective enactment may be bad if it affects vested rights and does not do so in unambiguous terms. This presumption, however, only applies where the legislation is in some way ambiguous and reasonably susceptible of two constructions. It is perfectly obvious that most statutes in some way or other interfere with or encroach upon antecedent rights.... No one has vested right to continuance of the law as it stood in the past. [20] In Nova Scotia (Workers' Compensation Board) v. Muise (1998), 1998 CanLII 2307 (NS CA), 170 N.S.R. (2d) 253, [1998] N.S.J. No. 182 (C.A.), Bateman, J. A., at 32, cited Sullivan and Driedger's Construction of Statutes, on vested rights: In Driedger on the Construction of Statutes, Third Edition, 1994, the author, Ruth Sullivan, wrote at p. 539: The presumption against interfering with vested rights is rebutted by any adequate indication that the legislature intended its legislation to have immediate and general application despite its prejudicial impact. This intention is sometimes stated expressly in the form of transitional provisions. These set out rules specifying the temporal application of the legislation being repealed or enacted by particular Act. Such rules prevail over any contrary common law or Interpretation Acts. [21] Michael Hayward says that Nancy Hayward had no vested right under the Will when s. 19A came into force. There was nothing to prevent the testator from making new Will. This appears to be correct; however, Nancy Hayward is not claiming vested right. Wills Act Caselaw [22] provision similar to s. 19A of the Nova Scotia Wills Act was considered in Re Matejka Estate 1984 CanLII 755 (BC CA), [1984] B.C.J. No. 1645. Subsection 16(1) of the British Columbia Wills Act provided: 16.(1) Where in will testator (a) gives an interest in property to his spouse; and after the making of the will and before his death (e) his marriage is terminated by decree absolute of divorce; then, unless contrary intention appears in the will, the gift is revoked and the will takes effect as if the spouse had predeceased the testator [23] In Matejka Estate, the deceased made his Will and was divorced from his wife before s. 16(1) came into force but he died after it came into force. MacFarlane, J.A., for the court, said at 9: In my opinion s. 16 cannot apply to revoke the gift to the spouse of the testator unless the section is given retroactive or retrospective effect. It is true that s. 16 is directed at the effect to be given to Will when death occurs after s. 16 comes into force, but the result must be determined by the happening of past event. agree with Chief Justice McEachern that the event bringing about revocation of the gift to the spouse is the Decree Absolute of Divorce, which occurred before the legislation came into force. If the law in force at the date of the Decree Absolute was applied it would not result in revocation. If the section is now to have that effect then it must be operating retroactively or retrospectively. [Emphasis added] [24] The court concluded that no vested rights were affected, and that the question was whether the section could be given retrospective effect, given that its effect was to attach different consequence to divorce. MacFarlane, J.A. at 15: Section 16 does not, in my opinion, clearly provide for retrospective application, nor does such construction arise by necessary and distinct implication. Section 16 does not speak of marriage which has been terminated but of when the testator's "marriage is terminated". If the legislation had been intended to be retrospective in its application, or had been intended to be read as the appellant submits then it would have provided "where in Will testator has given an interest in property to his spouse, and after the making of the Will and before his death his marriage has been terminated by Decree Absolute of Divorce then, unless contrary intention appears in the Will, the gift shall be treated as having been revoked, and the Will shall have the effect as if the spouse had predeceased the testator." see no reason in this case to read the statute as if it had contained such language. plain reading of the section forecasts the making of Will, the giving of an interest to spouse, divorce, and death. [Emphasis added] [25] Section 19A of the Nova Scotia Act uses language similar to that in the British Columbia Act: “where, after the testator makes Will, the testator's marriage is terminated” the gift or appointment granted to the spouse in the Will “are revoked and the will shall be construed as if the former spouse had predeceased the testator.” This language is entirely forward‑looking. [26] MacFarlane, J.A. went on to consider the consequences of retrospective reading of s. 16 of the British Columbia Act at 16-17: If s. 16 were to be applied in this case it would attach new duty, penalty, or disability ‑‑ prejudicial consequence ‑‑ to prior event. Clearly it would have prejudicial effect upon the respondent, whom, it appears, had been divorced without obtaining proper division of family assets. Prior to the enactment of s. 16 the common law applied, and she would not have lost her rights under the Will of her former husband upon being divorced from him, without some step on his part, such as remarriage or the execution of new Will. am unable to construe the legislation as intending to create such prejudicial consequence. think that the presumption against retrospectivity applies. Although agree with counsel for the appellant that s. 16 is remedial legislation and ought to be given such fair, large and liberal construction and interpretation as best assures the attainment of its objects, am not persuaded that the legislation was intended to apply to attach new consequence for the future to Decree Absolute of Divorce, granted before the statute was passed. [Emphasis Added] [27] In Page Estate v. Sachs, 1993 CanLII 8620 (ON CA), [1993] O.J. No. 269, the Ontario Court of Appeal considered the effect of certain provisions of the Succession Law Reform Act, which provided, at ss. 17(2): Except when contrary intention appears by the will, where, after the testator makes will, his or her marriage is terminated by judgment absolute of divorce or is declared nullity, (a) devise or bequest of beneficial interest in property to his or her former spouse; (b) an appointment of his or her former spouse as executor or trustee; and (c) the conferring of general or special power of appointment on his or her former spouse, are revoked and the will shall be construed as if the former spouse had predeceased the testator. [28] As with the Nova Scotia and British Columbia Acts, the language of s. 17(2) of the Ontario legislation is forward‑looking. However, the Ontario Act also included the following direction, at s. 43: This Part applies to wills made before, on or after the 31st day of March, 1978 where the testator has not died before that date. [29] In Page Estate, as in the present case, the testator's will had been made, and the divorce concluded, before the provisions came into force; but they were in force by the time the testator died. Blair, J.A., for the court, at 6, characterized s. 17(2) as “a classic example of retrospective legislation which alters the legal effect of previous Act, the making of will, after it has occurred.” He added at 9: Read literally, s. 17(2) refers to specific time in the past after testator has made will when the marriage is terminated. At that time, the Act declares that all testamentary dispositions to spouse are revoked and that the will should be interpreted as if the spouse had predeceased the testator. It is, in my opinion, grammatically correct for the statute to employ the present tense in these circumstances to describe the legal effect of past events, namely, the termination of the marriage and the revocation of testamentary dispositions to spouse. [30] This is different interpretation of the present tense language of such provisions than that found in Matejka and Re Thibault Estate. Blair, J.A. went on to consider s. 43 at 10: The effect of s. 43, which applies to wills made before, on or after March 31, 1978, is to attach new and prejudicial consequences from the standpoint of spouse to will made at time in the past before marriage is terminated. literal construction of the Act makes the conclusion indisputable that, in this case, the testator's will, made before divorce, must be construed as if the appellant spouse had predeceased him. [31] Blair, J.A. departed from the reasoning of Matejka Estate at 13: am of the respectful opinion that, for the reasons given above, the reference in s. 17(2) of the Act to the termination of the marriage in the present tense is not inconsistent with its retrospective operation. Nor is the result different because the Act does not state that it applies retrospectively to divorce decrees obtained before the Act came into force, in the same way it applies to wills made before that date. Such statutory instruction is not necessary because the Act is legislation with respect to wills and not with respect to divorce. It purports only to govern the interpretation of wills after marriage is terminated and does not purport to affect the status of divorce decrees. [32] The result was that ss. 17(2) and 43, read together, demonstrated the legislature's intention that s. 17(2) should operate retrospectively. The court also found support for retrospective reading in the legislative history of the provisions, particularly report of the Ontario law Reform Commission, as referred to by Blair, J.A. at ¶17: The report discussed various methods of accomplishing the required change in the law and recommended that, where testator is divorced after making will leaving property to spouse, the will should be read as if the former spouse had died before the testator, unless the will expressly provides otherwise. The report added caution, at p. 10, pertinent to this case, against postponing effective reform: Since it may well be presumed, in the absence of clear evidence to the contrary, that legislation is intended for prospective operation only, the amending statute should contain an express provision clarifying the legislative intention on this point. To make the legislation prospective only would be, in effect, to postpone reform for generation or more, and there are no justifiable grounds for so doing. [Emphasis by Blair, J.A.] And further at 18: The italicized passage appears to provide the conceptual basis of s. 43 of the Act which, in my view, makes the application of s. 17(2) retrospective and not merely prospective.... [33] There appears to be some uncertainty in Page Estate as to whether the language of s. 17(2) alone was sufficient to support retrospective reading, or whether (as the last passage suggests) s. 43 of the Ontario legislation gave it that effect. [34] In Re Thibault Estate, supra, Duncan, J. considered an application by the testator's former wife to determine whether section 19A operated retroactively or retrospectively. The husband's will made in 1999 named the wife executrix and sole beneficiary of his estate. It was never varied or revoked. The parties divorced in 2003 and the husband died in 2008. As such, the Will was made and the parties divorced before section 19A came into force, but the husband died shortly after it came into force, as in the present case. Duncan, J. held that section 19A should be read prospectively. He noted that the Wills Act did not indicate that the section operated retroactively. After considering various extrinsic sources including the report of the Law Reform Commission and references in Hansard Duncan, J. said at 17: do not find sense of urgency in the comments of either of these bodies, nor identification of societal problem so pressing that the amendment needs to be enforced retrospectively. In some past instances unintended benefits passed to former spouses as result of the failure of party to amend their will after divorce, or to otherwise address the consequences of the divorce on his/her estate. The "mischief" sought to be remedied by the amendment is to ensure that if it is the intention of divorcing couple to maintain estate benefits for the other, then it needs to be committed to writing. This is reversal of the common law, which required the testator to take steps to exclude the former spouse from the benefits of their will, if they chose to do so. [35] In Re Thibault Estate, at 18-20, Duncan J. reviewed Matejka Estate, agreeing with the underlying principle that “the presumption against retroactivity should apply where there is prejudicial consequence imposed and where there has been no clear legislative intent to do so.” Duncan, J. distinguished Page Estate on the basis that (as has been noted) there is no equivalent provision in the Nova Scotia Wills Act to s. 43 of the Ontario Succession Law Reform Act. As result, Duncan J. concluded at 24: Section 19A of the Wills Act must be read prospectively. Such conclusion is consistent with the general presumption that legislation should not be read retrospectively except where by clear language or necessary implication it should so operate. The language of the Act is clear and unambiguous, and there is no external evidence to suggest that the legislature intended contrary conclusion. [36] agree with Duncan, J.’s conclusion in Re Thibault Estate that s. 19A of the Wills Act is forward looking in its effect and that it cannot be read retroactively or retrospectively. This must be so regardless of the fact that Nancy Hayward would not be entirely prejudiced by such reading because she appears to have received fair and appropriate division of all property upon divorce; which was approximately one-half of her and her husband’s property. [37] shall now go on to consider the effect of the various provisions in the separation agreement and whether equitable estoppel applies to the present case. The Separation Agreement [38] The testator and Nancy Hayward signed separation agreement dated June 28, 2004. Their intention was “to resolve matters of support and financial obligations and division of their property.” They agreed that themselves, “their heirs, executors, administrators and assigns” were bound by the agreement. They further agreed “to execute and deliver ... any further documents, or to furnish any further information, or to perform any other act that the other party reasonably requires to give effect to the terms” of the agreement. Nancy Hayward conveyed her interest in the matrimonial home to the testator, and agreed that “she claims no further interest therein, present or future.” She conveyed or relinquished her interest in any other real property. The parties’ vehicles, household furnishings, personal effects, bank accounts and pensions were divided “free and clear” from claims by one another. The agreement included section in which the parties released rights in one another's estates: 17.01 The Husband and Wife each hereby release all rights which he or she might have under the laws of any jurisdiction to any share in the estate of the other or to the administration of the estate of the other, except as otherwise provided in this Agreement. [39] The parties also released any rights and claims for maintenance or property division, including claims under the Intestate Succession Act and the Testator's Family Maintenance Act. Finally, the agreement provided: This Agreement is full and final settlement of all matters outstanding between the parties and can be varied only by an agreement in writing between the parties or by Court of competent jurisdiction. [40] In Morrell Estate v. Robinson, 2008 NSSC 295 (CanLII), 2008 CarswellNS 530 (S.C.), the testator made Will in 2002, after his marriage but before separation and divorce. The separation agreement provided (at section 20) that the parties “forever renounce and waive any claim in the estate of the other and any right to share in the estate of the other, whether such claim or right arises under statute or otherwise, including the right to administer the estate of the other in the event of the death of that party.” The testator's will, however, left the residue of his estate to the wife. The issue was whether the wife had waived and released her right to inherit under the testator's will by executing the separation agreement. The testator's mother, who was the executor under the Will, submitted that the separation agreement was “intended to be ‘a full and final settlement' between the parties and to effect division of all their assets ‘to their mutual satisfaction’.” She argued that as result, s. 20 of the agreement “effectively waives and releases [the wife's] right to inherit under the will” and that to hold otherwise “would have the effect of defeating the intent that the separation agreement be full and final settlement.” [41] The Morrell Estate case was decided by Pickup, J. and he held that, while the wife “may have waived any claim against the estate of her late husband and the right to share in it, it is not clear from the wording of s. 20 of the separation agreement that she waived her right to claim under the will if her husband chose not to alter his will so as to eliminate her as beneficiary. There is no reference to will in the separation agreement.” As such, s. 20 of the separation agreement did not affect the wife's right to be the sole beneficiary under the will. Pickup, J. concluded as follows at 22-24 of Morrell Estate: Counsel for Ms. Robinson [the testator's mother] did not advance clear legal rationale for finding that the words in this particular agreement should be given the effect he claimed. He agreed that the will was valid. In the absence of any challenge to the will, there would need to be compelling reasons to override the testator's intentions. The language of the separation agreement, which did not purport to revoke the party's wills, and did not use the word “will” in the section dealing with estate claims, does not permit this conclusion. It would have been possible for the separation agreement to include clear waiver of the right of the parties to inherit under each other's wills, if this was their intention. am not satisfied that any intention can be found in the language of the separation agreement. As the majority said in [Pearson v. Pearson (1980), 1980 CanLII 3110 (MB CA), Man. R. (2d) 404 (Man. C.A.)], "[h]ad the deceased made new will after the settlement with his wife, conferring benefits upon his wife, no one would question that she would be entitled to receive the benefits conferred by that new will. The failure to revoke the previous will amounts to the same thing. It is constant affirmation of his choice to confer benefit ...." The above cases which were submitted by Ms. Robinson's counsel make it clear that testator's intentions, as expressed in valid will, should not be lightly interfered with. spouse's right to claim against the estate or to share in the estate appears to be distinct from the testator's right to confer benefit voluntarily. The separation agreement did not revoke the will, nor does it appear to have affected either party's ability to dispose of their estate as they saw fit. Therefore, the gift to Ms. Ostrom will stand. [Emphasis added] [42] The testator's death in Morrell Estate predated the effective date of the s. 19A amendments to the Wills Act that create presumptive revocation of will when marriage ends. Therefore S. 19 was not an issue in that case. [43] have concluded, as discussed previously, that the current s. 19A does not have effect on the present Will of George Hayward. As in Morrell Estate, the wife in this case waived any right to share in the estate, or to administration of the estate. Unlike Morrell Estate, there is no separate reference to “claim”; but this does not provide valid reason to distinguish Morrell Estate, which was ultimately premised on the failure to revoke the will. While the separation agreement in each case includes a waiver of any right to share in the estate or to administer the estate, it does not revoke the will and it cannot be taken to remove the testator\'s right to dispose of his estate as he saw fit. [44] Morrell Estate was appealed and the Court of Appeal’s decision was released in December of 2009, almost six months after the present case was argued, and is now cited as Robinson v. Ostrom, 2009 NSCA 127 (CanLII). therefore invited additional written submissions from counsel in the present case. [45] The Court of Appeal, in Robinson v. Ostrom, appears to disagree with the trial judge’s inference that it may be possible to renounce future testamentary gift with clear wording in contract or separation agreement, absent valid revocation of the will. This is so regardless of the consideration exchanged for the promise of future renunciation. Oland, J.A. commented on this principle in Robinson v. Ostrom at 26: However, until the death of the testator, person has nothing more than an expectancy and one cannot disclaim or renounce an interest in something to which he or she has no legal interest. In response to the court’s questions and the jurisprudence, the appellant readily and correctly withdrew her argument that, when she signed the separation agreement, Ms. Ostrom had immediately renounced any interest in the testamentary gift. [Emphasis added] [46] Oland, J.A. also cited with approval the following passage from Re Smith, [2001] All E.R. 552 (Ch.) in 28 of her decision: [10] Now contrast case such as the present. At the date of the disclaimer the intended donee has no interest whatsoever. He or she has mere expectancy. Any existing wills might or might not be revoked or varied; any existing intestacy might or might not persist until the death of the deceased. There are no proprietary rights, or other rights to control the destination of the estate in any way. What, then, is there to be disclaimed, or (as matter of analysis) avoided? In my view the answer is nothing. disclaimer bites on something that can be disclaimed; on transaction which can in some way be said to be an attempt to make gift. The testamentary intentions of living person do not fall within that category. Until the death there is simply nothing that can be disclaimed and any attempt to disclaim is invalid and ineffective. [Emphasis added] [47] Oland, J.A. commented further on this principle at 30, 31 and 37 of Robinson: [30] In the case under appeal then, when she signed the separation agreement, Ms. Ostrom could not and did not immediately renounce any interest in the estate of the late Mr. Morrell pursuant to his will. At that time, there was nothing more than an expectancy. In the words of Re Smith, supra, there was nothing on which renunciation could “bite”. [31] Now that Mr. Morrell has died, Ms. Ostrom could renounce or refuse her interest as residuary beneficiary under his will. However, she does not wish to do so. On the contrary she seeks to take the benefits for herself pursuant to that will. [37] As shown earlier in this decision, Biderman, supra and Wolfson Estate, supra stand for the principle that voluntary disclaimer of future interest has no legal effect. In the result, the appellant has not provided any Canadian and English authority in which renunciation or disclaimer executed before the death of the testator, whether without consideration or for consideration, has been found to be legally effective. [Emphasis added] [48] Oland, J.A. dealt further with arguments regarding disclaimers in advance of death by dealing with the issues of consideration and privity of contract in the context of S. 28 of the Matrimonial Property Act, R.S.N.S. 1989, c. 275. In view of the following comments of Oland, J.A. in Robinson, supra, it is doubtful that Michael Hayward would have any standing to contest the Will by virtue of the separation and divorce agreements made between George and Nancy Hayward. Note the following 43 and 44 in the Robinson judgment: [43] Finally, while acknowledging that voluntary disclaimers in advance of death are void, the appellant argues that contractual renunciation supported by consideration should be upheld: However, the appellant has failed to produce any legal authority that contractual promise to renounce, given for consideration before the death of former spouse, binds person to renounce testamentary gift after his death. [44] The remedy the appellant seeks is specific performance of the alleged renunciation in clause 20 of the separation agreement. That agreement is, of course, contract. The parties to the contract were Ezra Morrell and Ingrid Ostrom, and its clause states that its terms are binding on their heirs, administrators, executors, successors and assigns. The appellant was not party to the separation agreement, nor is she one of the persons named under clause 2. Even if it had been determined that Ingrid Ostrom was contractually bound to refuse the testamentary gift, there does not appear to be any privity of contract between the appellant and Ingrid Ostrom which would allow the appellant to enforce clause 20 of the separation agreement. It is the executrix who is permitted, but not mandated, to enforce separation agreement (Matrimonial Property Act, R.S.N.S. 1989, c. 275, s. 28). [49] In the present case, the named executrix of the estate is the former wife of the deceased testator and the one claiming the benefit under the Will. It is therefore unlikely that she will take any legal proceedings against her stated intent and interest. [50] must therefore rule that the alleged waivers or renunciation contained in the Haywards’ separation and divorce documents do not contractually bind Nancy Hayward in the present case. will, nevertheless, go on to consider whether there are any equitable principles which would estop Nancy Hayward from claiming the entire benefit under George Hayward’s Will. Equitable Estoppel [51] The principles of promissory estoppel form of equitable estoppel were set out in John Burrows Ltd. v. Subsurface Surveys Ltd., 1968 CanLII 81 (SCC), [1968] S.C.R. 607. Ritchie, J. said, for the Court at pp. 614-615: Since the decision of the present Lord Denning in the case of Central London Property Trust Ltd. v. High Trees House Ltd. [[1947] K.B. 130], there has been great deal of discussion, both academic and judicial, on the question of whether that decision extended the doctrine of estoppel beyond the limits which had been theretofore fixed, but in this Court in the case of Conwest Exploration Co. Ltd. et al. v. Letain [1963 CanLII 35 (SCC), [1964] S.C.R. 20 at 28] Mr. Justice Judson, speaking for the majority of the Court, expressed the view that Lord Denning's statement had not done anything more than restate the principle expressed by Lord Cairns in Hughes v. Metropolitan Railway Co. [(1877) App. Cas. 439] in the following terms: It is the first principle upon which all courts of equity proceed, that if parties, who have entered into definite and distinct terms, involving certain legal results certain penalties or legal forfeiture afterwards by their own act or with their own consent, enter upon course of negotiation which has the effect of leading one of the parties to suppose that the strict rights arising under the contract will not be enforced, or will be kept in suspense, or held in abeyance, the person who otherwise might have enforced those rights will not be allowed to enforce them where it would be inequitable, having regard to the dealings which have thus taken place between the parties. In the case of Combe v. Combe [[1951] All E.R. 767] Lord Denning recognized the fact that some people had treated his decision in the High Trees case as having extended the principle stated by Lord Cairns and he was careful to restate the matter in the following terms: The principle, as understand it, is that where one party has, by his words or conduct, made to the other promise or assurance which was intended to affect the legal relations between them and to be acted on accordingly, then, once the other party has taken him at his word and acted on it, the one who gave the promise or assurance cannot afterwards be allowed to revert to the previous legal relations as if no such promise or assurance had been made by him, but he must accept their legal relations subject to the qualification which he himself has so introduced, even though it is not supported in point of law by any consideration, but only by his word. It seems clear to me that this type of equitable defence cannot be invoked unless there is some evidence that one of the parties entered into course of negotiation which had the effect of leading the other to suppose that the strict rights under the contract would not be enforced, and think that this implies that there must be evidence from which it can be inferred that the first party intended that the legal relations created by the contract would be altered as result of the negotiations. It is not enough to show that one party has taken advantage of indulgences granted to him by the other for if this were so in relation to commercial transactions, such as promissory notes, it would mean that the holders of such notes would be required to insist on the very letter being enforced in all cases for fear that any indulgences granted and acted upon could be translated into waiver of their rights to enforce the contract according to its terms. As Viscount Simonds said in Tool Metal Manufacturing Co. Ltd. v. Tungsten Electric Co. Ltd. [[1955] All E.R. 657]: the gist of the equity lies in the fact that one party has by his conduct led the other to alter his position. lay stress on this, because would not have it supposed, particularly in commercial transactions, that mere acts of indulgence are apt to create rights [52] In Maracle v. Travellers Indemnity Co. of Canada, 1991 CanLII 58 (SCC), [1991] S.C.R. 50, 1991 CarswellOnt 450, Sopinka, J. said for the Court at 13: The principles of promissory estoppel are well settled. The party relying on the doctrine must establish that the other party has, by words or conduct, made promise or assurance which was intended to affect their legal relationship and to be acted on. Furthermore, the representee must establish that, in reliance on the representation, he acted on it or in some way changed his position. In John Burrows Ltd. v. Subsurface Surveys Ltd., 1968 CanLII 81 (SCC), [1968] S.C.R. 607, 68 D.L.R. (2d) 354, Ritchie J. stated [at p. 615, S.C.R]: It seems clear to me that this type of equitable defence cannot be invoked unless there is some evidence that one of the parties entered into course of negotiation which had the effect of leading the other to suppose that the strict rights under the contract would not be enforced, and think that this implies that there must be evidence from which it can be inferred that the first party intended that the legal relations created by the contract would be altered as result of the negotiations. This passage was cited with approval by McIntyre J. in Engineered Homes Ltd. v. Mason, 1983 CanLII 142 (SCC), [1983] S.C.R. 641 ... at p. 647. McIntyre J. stated that the promise must be unambiguous but could be inferred from circumstances. [53] According to the Nova Scotia Court of Appeal in White v. Halifax (Regional Municipality) Pension Committee, 2007 NSCA 22 (CanLII), 2007 CarswellNS 68, Maracle stands for the proposition that "[t]o found promissory estoppel, there must be an unambiguous promise or assurance given by one party to another ." [54] In Saskatchewan River Bungalows Ltd. v. Maritime Life Assurance Co., 1994 CanLII 100 (SCC), [1994] S.C.R. 490, 1994 CarswellAlta 769, Major, J., for the Court at 18, linked estoppel and the doctrine of waiver, stating that “[r]ecent cases have indicated that waiver and promissory estoppel are closely related. The noted author Waddams suggests that the principle underlying both doctrines is that party should not be allowed to go back on choice when it would be unfair to the other party to do so. .” [55] There appears to be no equitable estoppel caselaw which is near enough to the present circumstances to provide much guidance. The question of estoppel has been raised in the specific case of applications under testators’ family maintenance legislation where there has been separation agreement. In Ward v. Ward, 2006 BCSC 448 (CanLII), 2006 CarswellBC 667 (B.C.S.C.), for instance, the testator and the plaintiff (the wife) signed marriage agreement before they were married, by which the wife agreed not to make claim under the Wills Variation Act. The parties also waived any right to share in one another's estates in the event of intestacy. The wife was not provided for in the will, and, after the testator's death, commenced an action for maintenance under the Wills Variation Act. The defendants who were the testator's sons from previous marriage argued that the wife was estopped from claiming under the Act by virtue of the marriage agreement. The chambers judge at 31-34, held that she was not so estopped, and that trial was necessary to determine whether the circumstances indicated moral obligation on the part of the testator to provide for the wife. There was no technical discussion of estoppel. The separation agreement in Ward included an explicit waiver of the statutory claim. By contrast, in the present case, there was no waiver of right to receive under the Will, nor was there any revocation of the Will. In order for the wife in the present case to be estopped from acting as administrator or accepting devise or bequest under the Will, there would need to be evidence that she “entered into course of negotiation” that led the testator “to suppose that the strict rights under the contract would not be enforced,” as well as evidence from which it can be inferred that the wife “intended that the legal relations created by the contract would be altered as result of the negotiations.” (See the Burrows case at p. 615). As Sopinka, J. put it in Maracle at 13: [t]he party relying on the doctrine must establish that the other party has, by words or conduct, made promise or assurance which was intended to affect their legal relationship and to be acted on. Furthermore, the representee must establish that, in reliance on the representation, he acted on it or in some way changed his position. [56] It is therefore difficult to fit the present circumstances within the technical boundaries of estoppel. This may be an issue which is best argued in Testator’s Family Maintenance Act proceeding. At best, the separation agreement could bar Nancy Hayward from advancing claim against the estate. On the other hand, the Will, on its face, makes her the administrator and beneficiary. The separation agreement, meanwhile, does not refer to Will and find that it cannot be read as promise or assurance that she would forgo any right to receive under the Will or to administer the estate should the testator make such an indication in the Will. There is an unambiguous promise in the separation agreement not to advance claim; but that does not seem to extend to receiving under the Will. Attempting to apply the principles of estoppel to the separation agreement brings us to the same result as Robinson v. Ostrom, supra. Post Trial Briefs [57] As stated previously, invited counsel to respond to our Court of Appeal’s decision in Robinson, supra, before finalized this judgement. received the last written submission January 28, 2010. Counsel for Nancy Hayward was of the view that the Robinson decision did not alter his client’s position; however, counsel for Michael Hayward advanced several new arguments which had not been raised at the hearing and which, did not appear to arise directly from the Robinson decision. Nevertheless, those new arguments were responded to by counsel for Nancy Hayward. shall deal with those arguments now. (i) the Robinson decision and S. 28 of the Matrimonial Property Act [58] In his first Supplementary argument, counsel for Michael Hayward quotes from 43 and 44 of the Robinson decision and he invokes s. 28 of the Matrimonial Property Act which states: “A marriage contract or separation agreement, or provision thereof, that has its effect on the death of one of the parties thereto may be enforced by or against the estate of the deceased.” [59] In my opinion this issue was decided in Robinson when Oland J. A. rejected the applicability of s. 28 in circumstances similar to the present case. The paragraph 21 cited in 43 of Robinson is quote from counsel’s brief and they are not the comments of Justice Oland. Michael Hayward would distinguish the Robinson case because he is presently the administrator of George Hayward’s estate with the Will annexed; and that therefore he should have standing to enforce the Separation Agreement pursuant to s. 28 of the Matrimonial Property Act. However, this reasoning in circular and not persuasive because one of the two issues on this application is the rightful executor or administrator of George Hayward’s estate. Michael Hayward has also sought to distinguish the Robinson case on the basis that the release clause contained in the Hayward Separation Agreement is forward looking as opposed to speaking in the present tense as the Robinson case and other precedents seen to indicate; however, do not see that as such significant difference that it would lead to different conclusion. In my opinion the reasoning enunciated in Robinson would still lead to the same result in the present case. (ii) to my said wife [60] The argument advanced on behalf of Michael Hayward in the above noted regard is based on the interpretation of Wills and efforts by the courts to ascertain the intentions of the testator so that his property is disposed of in the way he wished. [61] Michael Hayward submits that the use of the words “to my said wife” in the Will is significant. He refers to Marks v. Marks (1908), 1908 CanLII 22 (SCC), 40 S.C.R. 210, where will used the phrase “to my wife,” without name. Two different women claimed to be the “wife” named in the will. The testator had apparently abandoned the first wife (the appellant) in 1878. He married the respondent, bigamist union, in 1902 and made his will and died in 1904. The surrounding circumstances led the majority, per Idlington J., to the conclusion that the testator had not considered the appellant, the first wife, to be his wife when he made the will. [62] Michael Hayward also offers Marion v. Marion, 2009 CanLII 9443 (Ont. S.C.J.) as recent authority on the interpretation of wills. In Marion, Warkentin J. took note of the dissent of Lord Denning in Re Rowland (deceased); Smith v. Russell and Others [1962] All E.R. 837 (C.A.), where Lord Denning said the task in interpreting the language of will is to “place yourself as far as possible in [the testator’s] position, taking note of the facts and circumstances known to him at the time, and then say what he meant by his words. Warkentin J. observed that this was similar to the approach in Marks and in Re Burke (1959), 1959 CanLII 113 (ON CA), 20 D.L.R. (2d) 396, 1959 CarswellOnt 98 (Ont. C.A.). In the latter case, Laidlaw J.A. said, for the majority: The Court is now called upon to construe particular document and, at the outset, emphasize what has been said before so frequently. The construction by the Court of other documents and decisions in other cases respecting the intention of other testators affords no assistance whatsoever to the Court in forming an opinion as to the intention of the testator in the particular case now under consideration. Other cases are helpful only in so far as they set forth or explain any applicable rule of construction or principle of law. Each Judge must endeavour to place himself in the position of the testator at the time when the will was made. He should concentrate his thoughts on the circumstances which then existed and which might reasonably be expected to influence the testator in the disposition of his property. He must give due weight to those circumstances in so far as they bear on the intention of the testator. He should then study the whole contents of the will and, after full consideration of all the provisions and language used therein, try to find what intention was in the mind of the testator. When an opinion has been formed as to that intention, the Court should strive to give effect to it and should do so unless there is some rule or principle of law that prohibits it from doing so. Warkentin J. Added, in Marion: The term “surrounding circumstances” has been interpreted to mean the indirect extrinsic evidence consisting of the character and occupation of the testator, the amount, extent and condition of his property and the number, identity and general relationship of immediate family and relatives to the testator. It can be presumed that the testator was at least familiar with the nature and extent of his assets and his liabilities at the date that he made his Will. While the Court is expected to examine indirect extrinsic evidence, the Court should not consider extrinsic evidence of direct intent when there is reasonable interpretation of the words that were actually used in the will. Resorting to the extrinsic evidence of direct intent would provide an inconsistent result with the reasonable interpretation of the words in the Will itself. Extrinsic evidence of direct intent includes instructions the testator gave his solicitor and other evidence of third parties attesting to the testator’s intentions. There are certain specific exceptions to the rule where extrinsic evidence of direct intent may be considered, but those exceptions are not applicable in this case. [63] The distinction between Marks and the present situation is that the Hayward will named Nancy Hayward. It did not use the word “wife” without further specifics, as occurred in Marks. Michael Hayward submits that the phrase “my wife” does not mean “ex-wife” or “former wife”, which is the status of Nancy Hayward after the divorce. On the basis of the rules of construction derived from Marks, Burke and Marion, Michael Hayward says it is necessary to ask whether the testator’s use of the words “my said wife” was intended to “include” Nancy Hayward if she was his “ex-wife” or “former wife.” He argues that this was not his intention. Nancy Hayward answers as follows in her supplementary brief: Mr. Hayward did not remarry after his divorce from Nancy Hayward so he clearly did not have “wife” at the time of his death. Furthermore, the will clearly refers to Nancy Vera Hayward using her full name. The Will could not be any clearer and as such there is no need to refer to any rules of interpretation, or Section 8A of the Wills Act. [64] find that there is more to be said for Nancy Hayward’s reasoning than for that of Michael Hayward. (iii) Amendment of the Will Section of the Wills Act provides: Writing not in compliance with formal requirements 8A Where court of competent jurisdiction is satisfied that writing embodies (a) the testamentary intentions of the deceased; or (b) the intention of the deceased to revoke, alter or revive will of the deceased or the testamentary intentions of the deceased embodied in document other than will, the court may, notwithstanding that the writing was not executed in compliance with the formal requirements imposed by this Act, order that the writing is valid and fully effective as if it had been executed in compliance with the formal requirements imposed by this Act. [65] The separation agreement is “a writing” that was not executed in compliance with the formal requirements of the Wills Act. Michael Hayward says the separation agreement expressed an intention by his father to alter his “testamentary intentions,” in that it “expressed testamentary intentions of George Hayward that the agreement was final settlement between the Haywards.” This would be strained application of s. 8A, given that the separation agreement made no reference to Mr. Hayward’s Will. therefore find that s. 8A could not operate to revoke Mr. Hayward’s Will. (iv) the “ethical” argument [66] Michael Hayward argues that there is an “ethical” basis for interpreting the words “my said wife” to exclude Nancy Hayward. He says;“Nancy Hayward petitioned for divorce from George Hayward. The divorce terminated their marriage, and her status as his wife.” He relies on the “preclusion doctrine.” This “doctrine” appears to be somewhat of variation on the principles of equitable estoppel. In Downton v. Royal Trust Co. et al., 1972 CanLII 148 (SCC), [1973] S.C.R. 437, the testator had obtained divorce from the appellant (his first wife) in Nevada. The parties had been separated, and separation agreement was in place. The appellant lived in Newfoundland, but submitted to the jurisdiction of the Nevada court. The separation agreement was incorporated into the divorce judgment. As soon as the Nevada divorce was finalized, the testator remarried and returned to Newfoundland with his second wife. After his death, the appellant brought an application under the Newfoundland Family Relief Act. The court held that the “preclusion doctrine” would prevent: spouse who, having obtained decree of divorce or nullity from foreign court incompetent to give it, seeks thereafter to assert that incompetence in order to gain pecuniary advantage against his or her spouse or the estate of the spouse. The doctrine has an ethical basis: refusal to permit person to insist, to his or her pecuniary advantage, on relationship which that person has previously deliberately sought to terminate. The ethical basis is lost, however, where there has been both invocation and submission to the foreign jurisdiction by the respective spouses; and if there is to be modification or rejection of the preclusion doctrine in respect of one or both of the spouses, other considerations must be brought into account; there may be, for example, an alleviating explanation for the submission to the jurisdiction of an incompetent foreign court. So too, where third parties are involved in case where spouse who has obtained an invalid foreign divorce or decree of nullity seeks to rely on its invalidity. [Emphasis added in original judgement] [67] In Downton, the court concluded that, in the circumstances, the preclusion doctrine did not bar the appellant’s claim: In the present case, am satisfied that the lawful wife submitted to the foreign court as she did to protect her existing benefits which were given as result of her separation from her husband in Newfoundland. Her submission was, accordingly, special one and could have no effect against her in Newfoundland in enforcing the separation terms, since she would not have to rely there upon the foreign decree in order to enforce them. This is not case where the appellant’s maintenance benefits rested on the foreign divorce decree alone and where she had taken those benefits until the deceased’s death, and then sought to assert that she was the lawful wife in order to gain additional benefits. [68] Michael Hayward submits that Nancy Hayward “voluntarily agreed to terminate her relationship with George Hayward by her Petition for Divorce” and so “should be stopped from claiming gift under George Hayward’s Will as ‘my said wife.’ Nancy Hayward says Downton has no application because the present claim does not arise under legislation, but was “a benefit freely conferred on her by Mr. Hayward, for which he was free to change at any time between the date of the divorce and the date of his death.” It seems to me that Nancy Hayward is essentially correct. The preclusion doctrine as described in Downton does not appear to prevent an ex-wife from receiving testamentary gift that is voluntarily given simply because the parties divorced. (v) testamentary intention [69] Michael Hayward makes the concluding remark that “it is not the testamentary intention of George Hayward to benefit an ex-wife under his Will, but his intention to benefit his son, Michael Hayward.” The problem with this bare assertion is that there is no evidence to support it. Under the Will, Michael Hayward is the residual beneficiary. For better or worse, the Will is the only available evidence of testamentary intention. The Separation Agreement has already been found to be insufficient evidence of testamentary intention and ineffective to revoke George Hayward’s Will. [70] find that none of the new arguments raised on behalf of Michael Hayward are sufficient to overcome the principles enunciated by out Court of Appeal in Robinson. [71] What is troubling about the present case is that the former wife, Nancy Hayward, received approximately one half of her deceased husband’s net worth upon the divorce, and she now seeks the other half to the exclusion of their son, Michael Hayward. This, on its face, appears to be the very situation which s. 19A of the Wills Act was intended to remedy. Nevertheless, having said that, as alluded to before, it would appear that Michael Hayward’s remedy, if any, lies by way of an application under the Testators Family Maintenance Act, if he chooses that course of action. [72] In the result, the application to revoke the grant of administration issued to Michael Hayward is granted and the Will of George Hayward is declared to be in full force and effect. [73] Each party shall have their costs, on solicitor/client basis, paid out of the Estate of the Late George Hayward. Order [74] I will grant an order accordingly, prepared by counsel for Nancy Hayward, and consented as to form by counsel for both parties. Boudreau, J.

The testator failed to change his will (which appointed his ex-wife as the sole executrix and beneficiary of his estate) following his divorce. He died shortly after amendments were made to the Wills Act providing that a divorce judgement nullified any bequests contained in a prior will of divorced parties. The ex-wife (who had received one-half of the testator's property in the divorce) applied to have herself appointed as sole executrix and beneficiary. Application granted; although the parties' separation agreement included a waiver of any right to share in or administer the other's estate, it did not serve to revoke the will; nor did equitable estoppel apply in the circumstances. The court adopted the reasoning in Re Thibault Estate (2009) and held that s. 19A of the Wills Act could not be read either retroactively or retrospectively.

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(Orally) Q.B. A.D. 1992 No. 34 J.C.P.A. IN THE QUEEN'S BENCH JUDICIAL CENTRE OF PRINCE ALBERT BETWEEN: DELI HOLDINGS LTD., and CENTRAL BROADCASTING COMPANY LIMITED DEFENDANT J.R. Cherkewich for the plaintiff and J.P. Morrall L. J. Zatlyn, Q.C. for the defendant and H. Laing JUDGMENT SIROIS J. October 9, 1996 On the night of April 2, 1991, 12 year old girl and two juvenile boys had been roller skating at the "Wheel-A- While Family Roller Centre" (hereinafter "Roller Rink"). Shortly after the Roller Rink closed down around p.m., [C.C.] (the 12 year old girl) was sitting on curb on 17th Street close to Carpet World and across the street from the Roller Rink yard, awaiting the arrival of her mother to pick her up. Then the two juvenile offenders, [G.R.] [C.S.], jumped her she said, dragged and sexually assaulted her in that vicinity very close by. The photographs in Exhibit P-1, while very clear, do not show clearly where the victim was accosted on the curb. The practice at the defendant's radio stations (unlike that of the Daily Herald, who attend at the police station for daily briefing on the events of the previous 24 hours), is to telephone the police station early in the morning so as to report the news commencing with the six o'clock bulletin. The news director for the defendant Broadcasting Company, Lois Holcomb, has been with the station since 1990. She was responsible for all the news information aired from the station in 1991. There were eight or nine employees in her department which dealt with advertising. There is some link between news and advertising although not strong link she said. On the morning of April 4, 1991, whoever said the news that day obtained the information from the police department on the previous night's activities. The procedure used is to gather information down with pen on paper. The news story is then typed in script in presentable form to be aired. The facts have to be correct on the scripting. The original note is then destroyed. The script is kept for one or two months and destroyed usually, unless the matter in question is diarized for an ulterior date in Court. Once the matter has come to an end, no record of it is kept. In this instance, the tapes were kept for eight weeks. tape recording of all that is said in radio station in 24 hours is logger taped on big reel. Lois Holcomb recalls telephone call from Ludwig Deli on the morning of April 4th but could not recollect specifically what was said except that he was not happy that the name of his business had been connected with the sexual assault the night before. The employee who gathered the information from the police station is no longer with the radio station. However, the procedure is standard; the information is typed in the script and aired so the public knows what is happening and to keep the topic interesting. The station has the option of airing the civic street address as landmark. The police do give out the business name in reference to location at times. In this instance, Lois Holcomb said the name of the business. "Wheel-A-While" was used because that is the information that was received. This was their normal practice. Lois Holcomb verified this herself with the police after Ludwig Deli called the station late in the morning. fail to see any duty of care or breach of the same. The defendant never broadcast any other location but the one received from the police. The plaintiff Deli Holdings Ltd. is closely held family corporation. The husband and wife Ludwig and Ina Deli are the only shareholders. Two married sons are salaried employees. The company's name arises from three sources: the basic one is the Meat Market (Ludwig and his sons are meat cutters by trade), the Roller Rink, and the third source is outside contracting with SIAST. Income from the three sources is pooled and once the operating expenses are deducted, what is left is declared as bonuses and for dividends, whatever is decided with the assistance of the chartered accountant, Dennis Reishold Almer, who has done the plaintiff's accounting since 1979. The meat market and the Roller Rink occupy the same site; you enter the meat market on 18th Street on the main floor, the Roller Rink is beneath it. An eight foot chain fence surrounds the large yard leading to the Roller Rink entrance. Two German shepherds are let loose in the yard after closing. You enter and exit from the Roller Rink through the yard, the gate abutting on 17th Street West. Immediately across the street is Benjamin Todman's Carpet World. The script and logger reel having long been destroyed and it is impossible to recreate exactly what was aired by the defendant station on the morning of April 4th, but the evidence was that 12 year old girl had been sexually assaulted by two juvenile boys between the Roller Rink and Carpet World, ". behind the Roller Rink in back alley between the Roller Rink and Carpet World. Lois Holcomb recalled that the information received at the station from the police was that shortly after the Roller Rink had closed, some young people had come out of the Roller Rink and had been involved in sexual assault. Actually the police gave the name "Wheel-A-While" instead of Roller Rink. Ina Deli was in bed at home on the morning of April 4th when she received telephone call around 7:30 a.m. asking her if she had heard the news from CKBI. When she answered that she had not, she listened to the o'clock bulletin and heard that sexual assault had occurred and the Roller Rink was mentioned. Ina immediately telephoned her husband Ludwig who was busy teaching meat-cutting at the prison farm across the river. She told him to come home. Ina received another berating telephone call from an irate customer dealing with the sexual assault. Ina was very upset about this and when her husband came home, he ordered her to answer no further telephone calls. Ina was the DJ at the Rink and that constituted her main role in the family operations. She and her husband were both shocked, angry and unhappy about the incident being connected to their business. They refused to accept what had happened. She testified that business at the Rink was quiet after that. She added gratuitously, that lot of children no longer came to the Roller Rink because their parents had heard the radio broadcast, yet she could not name one parent who had stopped their children from attending the Roller Rink. Neither could her husband. In summary, there were about seven people in total who expressed concern over the newscast, either to Ludwig or to Ina. This was most unfavourable reaction by Ludwig and Ina. They imagined their world was coming apart. They blame the loss of earnings at the RollerRink on the publicity generated by the defendant. Yet the evidence is that the Indian and Metis Youth Group who came to the rink as body, did not blame the incident for cutting back on their attendance. The reason could just as well have been from reduction in funding as anything else. The defendant Ludwig agreed with this. The sexual assault victim [C.C.] said she was not deterred by the incident but that she went back to the Roller Rink again after. She did not blame the plaintiffs for what happened. The fact the attendance was down for few days after cannot be attributed to the incident. There may have been other factors at work, such as holidays, unfavourable economic conditions, levelling off of interest, and good outside weather to dissuade skaters. Besides, the tapering off season of May and June was approaching other interests abound. Figures do not lie. The plaintiffs made $12,500.00 between April and August 1991 compared to $7,000.00 in 1990 for the same months. Business in 1991 had increased not decreased in those five months. Ludwig Theodore Deli, the son, testified that the newscast he heard said that 12 year old girl was sexually assaulted by two juveniles between the Roller Rink and Carpet World. The Delis interpreted the news as stating that the sexual assault had occurred at the Roller Rink. They were absolutely wrong in this interpretation. All they wanted to hear was "Roller Rink" and they were wrong in their analysis. Benjamin Tadman, owner of Carpet World, was contacted by Ludwig about the radio newscast and told to telephone the station. (Ludwig is mistaken when he says he spoke to no one prior to calling the defendant.) After he heard the news that sexual assault had taken place in the vicinity of the Carpet World, Tadman spoke to an employee at the defendant station. He told the employee that he was concerned that his business place had been linked to some criminal activity and that would not do his commerce any good. The employee's answer was that it was necessary to graphically describe the area where the crime occurred to protect other people. Tadman asked that the station not do it again; the answer was that this was the way they would do it. Benjamin Tadman did nothing more. But not so Ludwig Deli. He telephoned the defendant station around 11:30 a.m. and asked Lois Holcomb to leave his business name out of it, that he did not pay for that advertisement. He was told that this constituted news and that it is their duty to report it. further newscast that Ludwig heard as he recalled was that 12 year old girl had been dragged in back alley between the Roller Rink and Carpet World and sexually molested. Ludwig's unhappiness with this newscast was that in reality, there was no such thing as behind the Roller Rink and that there is no back alley between the Roller Rink and Carpet World, he said. The evidence is that 12 year old girl was accosted while sitting on the curb on 17th Street West which runs between the Roller Rink yard and Tadman's Carpet World. What was described as the back alley was in reality, 17th Street West. It can be described as behind the Roller Rink because you leave through the Roller Rink property into that street. The 12 year old girl may have been dragged by the two juveniles from the curb where she sat on 17th Street West beside Tadman's, to point in the immediate vicinity where she was molested. Ludwig, on inquiring, was told by the police that sexual assault had occurred. Ludwig had no more contact with the defendant station. Instead, he sought his accountant Almer and his lawyer for advice on April 4th the same day. He wrote long letter to the CRTC on April 11th complaining about the defendant's newscast saying that it was unethical, unprofessional and very damaging to their business and their health. (vide: Exhibit P-1). The CRTC, the regulatory body for radio and television in this country wrote to the defendant on April 12th in connection with the plaintiff's concerns and the CRTC requested the defendant to retain copy of the logger tape covering the newscasts in question in accordance with s. 8(5)(b) of the Radio Regulations, 1986. The defendant did as it was requested to do. The defendant wrote to the plaintiff on May 1th regretting any embarrassment which the reporting of the incident had caused to him and members of his family. The general manager, Jim Scarrow, advised that in reporting such occurrences it had always been their policy to relate the facts precisely as provided to the station by the Prince Albert City Police Department, and that this policy was followed in this case. The descriptions and facts contained in the news item were those supplied to the station by the police. The station had to rely rigidly on information as supplied to the station by the police he said, which was always very reliable (vide: Exhibit D-15). There is no reason to doubt his evidence. On May 28th, the plaintiff's solicitor wrote to the CRTC expressing dissatisfaction with the defendant's position. It again referred to further mention of the incident "near the Roller Rink" in radio broadcast by the defendant on May 24th and requested that the tape of the broadcast be preserved. The solicitor was also requesting some financial compensation for the plaintiff for apparent losses for the month of May (vide: Exhibit P-15). The defendant's general manager, Jim Scarrow, wrote to the plaintiff's solicitor on July 17th, apologizing for any personal discomfort to Mr. Deli as result of the coverage of the news story but that occasional news coverage was necessary until the criminal process was terminated (vide: Exhibit D- 18). Nothing further was heard from the plaintiff or his solicitor by the defendant. On July 11th, the legal counsel for the CRTC wrote the defendant with respect to the complaint about the May 24th newscast at 6:30 a.m. and requested copy of the defendant's response (vide: Exhibit D-18 supra). taped copy of the broadcast in question was also requested pursuant to s. 8(6) of the Radio Regulations, 1986. On August 21st, the secretary general of CRTC, A.J. Darling, wrote to the plaintiff's solicitor referring to previous correspondence in connection with the matter and said that it was unable to conclude that the broadcast of the report in question constituted breach of the requirements of either the Broadcasting Act or the Radio Regulations, 1986. It added: "While it is indeed unfortunate that Mr. Deli's business has apparently suffered in the wake of the assault, it would appear to be factually correct that an assault is alleged to have occurred near his roller rink. Accordingly, the Commission considers that CKBI was within its rights to report the assault in the manner that you have described." It added that the Commission was without statutory jurisdiction to grant financial compensation (vide: Exhibit D-18). Furthermore, the Commission said that the tape of the May 24th broadcast was never requested from the licensee and had unfortunately been destroyed. The Commission advised the plaintiff's solicitor of its policy statement and guidelines concerning complaints and requests for tapes or transcripts of radio broadcast programs. The letter ended by statement that in view of the fact that no breach of the Act or the Regulations had occurred, the Commission did not intend to pursue the matter further. On November 1, 1991, the CRTC requested CKBI to forward to the Commission taped copies of the logger tapes of the news items aired on April and 5, 1991. The defendant replied to the CRTC on December 9, 1991, that pursuant to CRTC Regulations 8(5)(b) of 1986, the logger tapes of April and 5, 1991, had been returned to service and were not longer available (vide: part of Exhibit P-15). The next the defendant heard about the matter was when the plaintiff issued his statement of claim on January 14, 1992. There was no advance warning of this. The "paper war" that ensued, finally came to trial over four years later. The chartered accountant, Dennis Reinhold Almer, testified on behalf of the plaintiff. Another chartered accountant, David Wayne Ballantyne, with the additional expertise as business evaluator, testified on behalf of the defendant. The contest between them was far from conclusive. The many charts filed as exhibits served more to confuse the issue than to clarify facts in my estimation. These are the reasons why. Reinhold Almer testified that the losses suffered by the plaintiff between April 4, 1991 to December 31, 1992 and from January 1, 1993 to February 28, 1994, totalled $98,140.80. This figure is very misleading. He based his calculation on the attendance fee remaining at $4.50. The evidence is that the figure was far from constant, that it varied greatly from $4.50 to $2.50 at different times; stay-overs were charged as low as $1.50. This would decrease the estimated loss figure, if any. He also estimated gross profit on confectionary items at .20�. He admitted that there was really no way to ascertain that; that he had done no calculation to arrive at this figure; that he was merely told this by Ludwig Deli. Dennis Almer did not check the entries in the Blue Book (vide: Exhibit D-6) made by the son, Ludwig Theodore (Ted) Deli, with the tapes record of the sales. Entire reliance seems to have been placed on the Blue Book. The figures that appeared there did not always agree with what the tapes revealed. He testified that the Roller Rink had shown yearly drop in revenue from the time it had opened its doors in mid-October 1987. Between 1988 and 1990 there was decrease of 46% in revenue or under $10,000.00. Dennis Almer admitted under cross-examination that his projections were not done according to general accounting principles. He said he was asked to prepare "loss report" and that in doing so, while he would draw on some of the Institute guidelines, he did not have to be as specific in this instance because he had no pointed directives to follow. This seriously put his objectivity at test. When comparing the revenue between 1990 and 1991 he admitted he would be hard pressed to say that there were losses in 1991. April 1991 made more money than in April 1990. There was declining trend of 20%. In June 1990 there was no money made whereas in June 1991, $2,978.00 was realized. In August 1990 the rink was closed whereas in August 1991, the sum of $1,604.00 was made. The accountant said he did not go back to say why they made more money in 1991 than in 1990. At the end of August 1991, they had not lost any money compared to 1990. The accountant said that he had not checked the months separately; that he had looked at it in general way. The only explanation he could give for the increase in income in 1991 was that large groups had come in but he could not substantiate this. When shown the tapes compared to the figures in the Blue Book (vide: Exhibit D-6) he admitted that the attendance and figures were not the same. The figures shown in the Blue Book included groups but were not shown on tape. The plaintiffs could give no particulars about the groups. But even allowing for that, discrepancy existed. Between April and August 1990, the revenue amounted to $7,972.00. For the same months in 1991, the revenue figures were $13,792.00. Hence, there was no loss in 1991 there. David Wayne Ballantyne confirmed the variables in the roller skating industry. There are highs and lows like economic cycles in other fields of endeavour. Commencing in October 1987, the Roller Rink thereafter showed decreasing attendance. Between January 1990 and January 1991, there was an average drop in attendance of 28%. Between March 31, 1988 and March 31, 1991, there was 42% decline in skaters. In Ballantyne's opinion, it was no longer profitable to operate the Roller Rink as at March 31, 1991. While the plaintiff may not have contemplated selling this business then, it was not doing well. They even closed on Sundays. In March 1992, it was evident that the premises could be put to more profitable use in some other way. Ludwig Deli says he began in the Roller Rink business in 1978 in Prince Albert. He continued operating as such until the early 1980's when another Roller Rink opened up. His business dropped and he leased the premises to Buy- Rite for five years. He had no figures to show the results of the operations from 1978 to closing in 1982. The plaintiff operated Roller Rink in Red Deer, Alberta, for two years apparently while the Roller Rink in Prince Albert was rented out. Ludwig Deli said that the operation in Red Deer did very well but they ceased that operation when the owner wanted long term lease at an increased rental that the plaintiff was not prepared to pay. The pull-out from Red Deer occurred about 1982 or 1983. The plaintiff testified that prior to April 4, 1991, there was substantial decline in attendance at the Roller Rink; this was normal every spring he said. Since the previous October, there had been decline of about 30% the plaintiff said. He added that in the Roller Skating business, the first year of operation is high, then it slows down gradually in the second and third year. The fourth year levels out and then it starts to pick up again with new age group. This was his experience in this field he said. Whereas in 1988 when the plaintiff opened up, business had peaked, it had dropped at the start of 1991 but he was less concerned then because he did not owe anything. The downward trend experienced early in 1991 continued when the Rink re- opened in the fall and kept decreasing into 1992. The people in the same business in Regina confirmed that this was their experience as well. In 1987, extensive renovations were made to the premises after Buy-Rite left and the rink resumed operations until 1992. Then the premises were rented out again when it did not pay any more. In 1992 and 1993, Ina operated Roller Rink in Saskatoon. That property was sold to third party which was the end of that operation. The sale of merchandising realised $12,000.00 deposited in the general account. The Roller Rink property in Prince Albert was rented out again commencing at the end of February 1994. The Roller Rink re-opened again in September of this year. At no time between April 4, 1991 and January 13, 1992, when the action was commenced, did the plaintiff or his solicitor make any demand on the defendant directly to resolve the grievance. It seems that the die was cast from the time of the sexual assault. There is no doubt that the Deli family are hard- working, honourable citizens. Three families live off the three branches of the plaintiff company. It is beyond question that they ran good, clean operation at the Roller Rink. No drunks or undesirables were allowed on the premises, if and when spotted. That the plaintiff corporation runs financially successful operation, there is not doubt. The contracting arm has done extremely well since 1992 and hence the entire corporation, since understand that the income from each of the three sources is pooled as well as the expenses to arrive at the bottom line. When the newscast came on the air in the early morning of April 4th, it made Ludwig Deli very angry and upset and he got carried away; Ina Deli became distraught, they immediately misinterpreted the sexual assault as having occurred at the Roller Rink whereas that was not said at any time. They foresaw financial disaster staring them in the face, an obvious overreaction. What was done to meet the apparent crisis by the family? After consulting with the chartered accountant and their solicitor, policy of confrontation, condemnation and retribution was opted for. There was ready access to the script an the logger tape at the defendant station at that time; nothing was done to get that information from them by the plaintiff. To counter the public opinion that may have arisen from the incident, (although from the evidence have been unable to detect such public outcry) notice in the Prince Albert Daily Herald authored by Ludwig Deli or anyone of his family, praising his Roller Rink operation and how safety was its prime concern would have gone long way, feel, to counter any fear that the incident may have been born in the hearts of the patrons. Simply because an incident takes place outside of your premises, be it murder, sexual assault or whatever it may be, if you are innocent of the same, surely casts no aspersions personally. To react angrily as the plaintiffs did was very unfortunate, unwise and costly decision. Ludwig Deli testified that at closing time, skaters milled outside the gate of the Roller Rink yard, onto 17th Street and across from Tadman's Carpet World. He said once the skaters were out of his yard and he closed his gate, that he had no further responsibility for them. That is absolute correct as far as his legal obligations are concerned, but the milling crowd is still adjoining his property, 17th Street and Tadman's Carpet World. That is where it is and that is where the sexual assault took place as reported by the defendant from the information received from the Prince Albert police force. Jim Scarrow, the vice-president and general manager of the defendant corporation, has been with the station ever since he was in high school, 40 years ago. There are two radio stations one AM and the other FM. Scarrow personally, and the station, have won many accolades and honourable mentions over that span in time. He told us that this was the very first time his station was involved in litigation. Scarrow has very much hand-on approach to his operation. He answers his own calls and is very accessible to all. He works every day cellular telephone accompanies him whenever he is away from the station. Scarrow was familiar with CRTC Regulations and hefollowed these assiduously. Woe to the station that does not cooperate with the CRTC! The tapes of this broadcast in April were kept for eight weeks as requested and then returned to service when no request was made for them. When the telephone call from Ludwig Deli was received late in the morning of April 4th, his request was reviewed by the station. The defendant was concerned. But as the name received from the police was part of the event, it would stay. The defendant was merely doing its job of reporting news; there was no way they knew or ought to have known that the news that were aired would cause harm to the plaintiff or to Tadman. The information they had from the police was proven correct and it should and would be aired. They have reams of information received from the police where business names were used. The defendant was only concerned with the general vicinity as told by the police. It appears that the tape of the May 24th broadcast was never requested from the defendant by the plaintiff and it was destroyed, regretfully, due to an administrative error. The plaintiff's solicitor was advised of this on August 21st by the CRTC (vide: Exhibit D-18). Nothing that the defendant published was false,malicious, dishonest, negligent or recklessly publishedwithout careful justification, improper motive or excuse. Distinguished are Frank Flaman Wholesale Ltd. v. Firman et al. (1982), 1982 CanLII 2487 (SK QB), 20 C.C.L.T. 246 at 257-58, (1982) 1982 CanLII 2487 (SK QB), 17 Sask. R. 305 (Q.B.); Man. Free Press Co. v. Nagy (1907), 1907 CanLII 46 (SCC), 39 S.C.R. 340 at 348-9; Herrington v. British Railway Board, [1971] All E.R. 897 at 906 and Cullen v. Rice et al (1981), 15 C.C.L.T. 180 at 188. It did what it was its duty to do and was exoneratedentirely by its controlling body, the CRTC for doing so. Thedefendant published the news that it receives from the police,always a proven reliable source. Nothing points to thedefendant as being the cause for the loss of profits by theplaintiff in its Roller Rink operation. The business was on down side at the time. The sexual assault occurring where it did was not the fault of either the plaintiff or the defendant. The plaintiff may have been victim of circumstances and no more. The sexual assault if it had bearing on the immediate attendance figures is minimal. The plaintiff did nothing constructive to minimize their losses. He did no promotion whatsoever to increase attendance. I fail to see where the plaintiff has a cause ofaction against the defendant and the action stands dismissedwith costs.

A radio station reported that a 12 year old girl was dragged and sexually assaulted behind a roller rink or between the rink and a store. The owner of the rink claimed financial compensation for a subsequent decline in his business which he alleged was a direct result of the broadcast. The script and reel had been destroyed and it was impossible to recreate exactly what was aired. HELD: The action was dismissed with costs. 1)Nothing that the defendant published was false, malicious, dishonest, negligent or recklessly published without careful justification, improper motive or excuse. 2)The station followed the CRTC Regulations and was exonerated entirely by its controlling body. The defendant published the news it received from the police, a proven reliable source. 3)Nothing pointed to the defendant as being the cause for the loss of profits by the plaintiff's roller rink operation. The business was on a down side at the time. The assault occurring where it did was not the fault of either party. If it had a bearing on the immediate attendance figure it was minimal and the plaintiff did no promotion whatsoever to increase attendance.

1996canlii6754.txt

S.C.C. No. 02343 IN THE SUPREME COURT OF NOVA SCOTIA APPEAL DIVISION Macdonald, Hallett and Matthews, JJ.A. and HER MAJESTY THE QUEEN Respondent Revised Decision: The text of the original decision has been revised to remove personal identifying information of the parties on July 10, 2008. The Appellant in person Kenneth W. F. Fiske for the Respondent Appeal Heard: March 21, 1991 Judgment Delivered: June 10, 1991 THE COURT: Appeal from conviction dismissed, application for leave to appeal against sentence granted, appeal dismissed, and firearms prohibition order made by Mr. Justice Tidman to remain in full force and effect, per reasons for judgment of Macdonald, J.A.; Hallett and Matthews, 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. MACDONALD, J.A.: The appellant, P.W.B., was convicted after trial before Mr. Justice Tidman, sitting without a jury, on a bill of indictment which alleges that he:"... at or near [...] in the County of Halifax, Nova Scotia, on or about the 13th day of December 1987, did unlawfully use a weapon, to wit: a knife in committing a sexual assault upon the person of [the complainant], contrary to Section 246.2 of the Criminal Code." For such offence, the appellant was sentenced to eight years imprisonment. He now applies for leave to appeal and, if leave is granted, appeals against both conviction and sentence. The material facts are as follows. The complainant is the divorced mother of two teenage children with whom she resided at all material times in an apartment in the [name of location changed] area. One of her favourite pastimes is playing darts. On the afternoon of Saturday, December 12, 1987, the complainant and girlfriend, S.O., went to the [name of place changed], which is located on [name of street changed], to play darts. The complainant's former boyfriend remained in her apartment to babysit her children. The complainant remained in the [name of place changed] playing darts until approximately 7:00 o'clock in the evening. During that time she testified that she drank approximately eight glasses of draft beer. She left the club with the intention of returning home. She accepted drive from friends who were going to the [name of place changed], located on [name of street changed]. That particular branch of the [name of place changed] was about one‑half mile from the complainant's residence. The complainant changed her mind about going home and decided to go to the [name of place changed] to have beer. She remained there until closing time. During the evening dance was held in the [name of place changed] Hall. During the course of the evening the complainant met the appellant with whom she was not previously acquainted. They talked and danced. The complainant testified that when the dance was over P.W.B. offered to drive her home but she said she would take cab. She said that she twice called for cab but was told on both occasions it would be at least one‑half hour before one could be sent for her. She testified that girlfriend who appeared to know the accused suggested that she would be all right with him. She therefore accepted his offer of drive home. They proceeded to the [name of place changed] parking lot and entered the appellant's vehicle. The complainant at the time had with her pint bottle of beer that she had taken from the [name of place changed]. The complainant gave the appellant directions to her home but testified that P.W.B. drove past her home and proceeded to the rear of the [name of place changed], which is located in rather isolated area off [name of street changed]. The complainant testified that after the accused parked the car he picked up knife from the front seat area of the car floor to the left of the driver's seat. The complainant then said that the accused placed the unsheathed knife about quarter of an inch from her face and said, "You don't want me to have to use this." To this she replied, "No, you don't have to use it." She testified that at this time she was terrified. She said that because she feared that he would harm her she consented to have intercourse with P.W.B... Both undressed. The intercourse occurred on the front seat of the car after which, on the appellant's instructions, she performed fellatio on him. After that sexual intercourse again took place. The sexual activities concluded at approximately 4:00 o'clock on the morning of Sunday, December 18. The complainant then dressed and left the vehicle to urinate. She said she was afraid to run for fear that the appellant would either run after her and catch her or follow her with the car. The complainant, therefore, got back into the vehicle after which the appellant, naked except for pair of running shoes, got out of the car also to urinate. The motor of the vehicle was running at this time. After P.W.B. left the car, the complainant locked the doors and proceeded to drive away. P.W.B.. jumped on the hood of the vehicle. The complainant then drove at slow rate of speed down [name of street changed], sounding the car horn all the while. Because of the hour traffic on the street was all but non‑existent. At the intersection of [name of street changed] and [name of street changed] she brought the vehicle to stop. The sounding of the car horn and the sight of naked man on the hood of the vehicle had attracted the attention of police officers who were at stakeout in relation to an unrelated matter. The appellant was immediately taken into custody by the police and the complainant was taken to local hospital for medical examination. The examination was conducted by Dr. Plaxton, who found that the labia was inflamed and tender to the touch, consistent with prolonged sexual intercourse. The doctor also examined the complainant's vagina and found it was dry and consistent with woman who had not been recently sexually aroused. The police searched the appellant's vehicle and, amongst other items, seized hunting knife, which was located beneath the brake pedal, knife sheath, bra, the appellant's clothing and an empty beer bottle. Constables Trider and Higgins of the Halifax Police Department testified that they saw the knife below the brake pedal on the floor shortly after the vehicle was stopped at the intersection of [name of street changed] and [name of street changed]. Constable Trider described the complainant as being hysterical at the time. He said she was sobbing, crying and her eyes were bloodshot. He stated she appeared to have been crying for some time. Constable Higgins testified that he saw both the knife and the sheath. He said the latter was on the carpeted section of the front floor of the driver's side of the car. The appellant testified at his trial. He said that on December 12, 1987, he had two draft beers with his lunch and about three pints of beer during the afternoon. He said he went to the [name of place changed] around 10:00 p.m., where he had two pints of beer. He testified that he met the complainant and had few dances with her. When the dance finished around 1:00 a.m. he said she accepted his offer of drive home. He went on to state that she directed him to the alcove behind the school. There they drank the open bottle of beer that she had taken from the [name of place changed]. He then said that consensual intercourse took place and that they performed oral sex upon each other. He testified that when he got out of the car to urinate, the complainant locked the car doors and drove away but that he managed to jump on the hood of the vehicle. P.W.B. said that the hunting knife and the sheath were his, but he denied handling the knife in the manner described by the complainant and denied threatening her in any way. In short, the appellant's defence was that although he had intercourse with the complainant, such was with her consent. The sole ground of appeal set forth in the appellant\'s inmate notice of appeal is:"My counsel at trial refused to call a witness that was present in the courthouse to prove my allegations against the complainant. My basic case was based on the fact of why the complainant in the case would say she was victim of sexual assault. By not bringing this very important witness forward was not able to show the Judge the reasons behind the allegations. instructed my lawyer on four (4) separate meetings to file an appeal. He told me at the time he would do so. was under the impression that this was done until receiving letter in July that he had not done so. There is an investigation by the Barristers' Society into the lawyer's conduct at this present date." Since the appellant represented himself on the hearing of this appeal, the Court felt obligated to ascertain from him some details with respect to this ground of appeal. P.W.B. advised the Court that the witness he wished called to testify was R.B., the sometime boyfriend of the complainant. The evidence the appellant hoped to elicit from R.B. was that the latter had physically assaulted the complainant on more than one occasion. This evidence he contended was relevant as going to the complainant's credibility. The complainant, however, admitted on cross‑examination that R.B. had hit her and that, as result, the police were called, charges were laid, but later withdrawn by her. P.W.B. was represented on his trial by Mr. Mark Knox. The appellant candidly admitted that R.B. had refused to give a statement to Mr. Knox: P.W.B. also said that he did not know for certain what evidence R.B. would give and was not at all sure that the latter would say that he had assaulted the complainant on more than one occasion. R.B. was in the courthouse during the trial under a defence subpoena. The appellant has failed to show any reason why this Court should now admit the evidence of R.B. He was present during the trial and there is nothing, either by affidavit evidence or otherwise, to show that he would give relevant evidence bearing on a decisive or potentially decisive issue on the trial. The burden on the appellant is to demonstrate that R.B.\'s evidence would be reasonably capable of belief and, in addition, that his evidence, if believed, could reasonably be expected to affect the result of the trial when considered together with all the other evidence. This P.W.B. has failed to do. See Palmer and Palmer v. The Queen. 1979 CanLII (SCC), [1980] S.C.R. 759, 50 C.C.C. (2d) 193 at p. 205. In this ground of appeal, the appellant criticizes the conduct of Mr. Knox. Since, in my opinion, such criticism is totally unfounded consider it necessary to make the following observations. It is an accepted constitutional principle in the United States that the right of an accused to "have the assistance of counsel for his defence" guaranteed by the Sixth Amendment, is to have the effective assistance of counsel. Where, however, the defendant alleges that the incompetence of counsel deprived him of the effective assistance of counsel, the defendant must show, in addition to the lack of competence on the part of defence counsel, that there is reasonable probability that, but for counsel's unprofessional errors, the result of the trial would have been different. Since there is no suggestion that that is the case here, do not consider that this appeal calls for determination whether ss. 7, 10(b) and 11(b) of the Charter of Rights and Freedoms guarantees to an accused right to effective assistance of counsel. For the purposes of this appeal, am however prepared to assume that an accused has constitutional right to the effective assistance of counsel. In Strickland v. Washington, 104 S.Ct. 2052 (1984) Justice O'Connor, speaking for the Court, said in part (p. 2068): "... The defendant must show that there is reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. reasonable probability is probability sufficient to undermine confidence in the outcome." In R. v. Garofoli (1988), 1988 CanLII 3270 (ON CA), 41 C.C.C. (3d) 97 (Ont.C.A.), Martin J.A., after stating the American position to which have referred and after referring to Strickland v. Washington, supra, said (p. 152): The principle set forth in Strickland v. Washington, supra, can usefully be applied in this jurisdiction. am far from satisfied that it has been shown that Scibetta's counsel at the trial lacked professional competence. Furthermore, it has not been shown that the alleged errors of defence counsel prejudiced the appellant's right to fair trial. should add that, apart altogether from constitutional considerations, if, in any case, the court considered that there was real possibility that miscarriage of justice had occurred. due to the flagrant incompetency of counsel we would be entitled to intervene under s. 613(l)(a)(ii) of the Code: see R. v. Swain, [1988] Crim. L.R. 109n." That, of course, is not the case here. Defence counsel assumes great deal of responsibility in the conduct of criminal case. He is called upon to make tactical decisions which he and his client must live with. It is not the function of this Court to second‑guess trial tactics employed by counsel. In the present case, would but say that in my opinion Mr. Knox's decision not to call R.B. as witness cannot be criticized. R.B. would not give Mr. Knox a statement ‑ he appears to have been hostile ‑ Mr. Knox, like P.W.B. had therefore no idea what R.B. would say on the witness stand. Under those circumstances it is my opinion that Mr. Knox's decision not to call R.B. as witness cannot and should not be criticized. Indeed, under the circumstances, it appears to have been the correct decision. It follows that however this ground of appeal is viewed, my opinion is that there is absolutely no merit in it. Although the appellant recites but one ground in his notice of appeal against conviction, he did raise numerous additional matters on the hearing of the appeal of factual nature. have considered them all in light of the record and have concluded that there is no merit in any of them. do, however, consider that some comment should be made as to the circumstances under which P.W.B. lost his right to jury trial. Upon being arraigned on the charge set forth in the information, the appellant elected to be tried by court composed of judge and jury. Following preliminary hearing on March 10, 1988, he was committed to stand trial. He was subsequently tried by judge and jury in the latter part of 1988. The jury were unable to reach verdict and were discharged. new bill of indictment was prepared on December 13, 1988. pretrial conference was held on April 11, 1989 at which P.W.B. was personally present. On that date his new trial date was set for May 16, 1989 with jury. He failed to appear on that date and bench warrant for his arrest was issued. He was apprehended. On June 9, 1989, the Crown prosecutor applied, on notice, to Chief Justice Glube for an order that P.W.B. was no longer entitled to jury trial. P.W.B.. was present together with his counsel on the hearing of such application. The following notation appears on the court record relating to that application: "Court opened. Court to counsel (Mr. McCarroll) (Mr. Knox) Accused agrees to forfeit right to Jury Trial. To return on 13th June 1989 to set down trial date. Mr. Knox to Court not ready to proceed on bail application today. No known date for hearing adjourned without day. Counsel will endeavour to get early date if Judge becomes available. Court closed." Section 598(1)(a) of the Code reads as follows: 598.[526.1] (1) Notwithstanding anything in this Act, where person to whom subsection 597(1) applies has elected or is deemed to have elected to be tried by court composed of judge and jury and, at the time he failed to appear or to remain in attendance for his trial, he had not re‑elected to be tried by court composed of judge without jury or provincial court judge without jury, he shall not be tried by court composed of judge and jury unless (a) he establishes to the satisfaction of judge of the court in which he is indicted that there was legitimate excuse for his failure to appear or remain in attendance for his trial; ... In R. v. Lee, 1989 CanLII 21 (SCC), 1989] 73 C.R. (3d) 257, 52 C.C.C. (3d) 289, the Supreme Court of Canada held that although s. 598 of the Code restricts the right to trial by jury and is, therefore, contrary to s. 11(f) of the Charter of Rights and Freedoms, it constitutes reasonable limit under s. of the Charter in that protection of the administration of justice is valid legislative purpose of sufficient importance to override the right to jury trial. P.W.B. now states that both Mr. Knox and the Crown prosecutor, Mr. McCarroll, advised him that he had absolutely lost his right to jury trial by failing to appear for his trial in May. The appellant submitted before us that he was not told by his counsel of the provisions of Code s. 598(1)(a), namely that he could avoid losing trial by jury if he had legitimate excuse for failing to appear for his trial in May. Again, since the appellant was not represented by counsel on this appeal he was asked by the Court what his excuse was. He said it was because he did not have lawyer. Instead of coming to court on May 16, 1989, and raising lack of counsel as possible ground for an adjournment, he elected to stay away. I would say in passing that it appears extremely doubtful to me that the reason given by P.W.B. for his non‑attendance at his trial in May could amount to a legitimate excuse within the meaning of s. 598 of the Code; More importantly, however, the appellant only raised this issue during the course of his oral submissions. He gave no notice to the Crown or to Mr. Knox as to the allegations he intended to make as to what he was told by Mr. McCarroll and Mr. Knox. In addition, he filed no material in support of this submission such as his affidavit or the affidavit of others. This to me is simply another uncalled for, unsupported and unjustified criticism of counsel by P.W.B.. The court record speaks for itself. The appellant agreed before Chief Justice Glube to forfeit his right to a jury trial. That, as far as am concerned, ends the matter. Mr. Justice Tidman, after reviewing the evidence in some detail, concluded his decision by saying: accept the evidence of the complainant that the accused led her to believe, and she did believe, that if she refused to engage him in sexual conduct he would harm her with hunting knife which he held to her face when threatening her. accept also the evidence of the complainant that she consented to and did have sexual intercourse with and performed fellatio upon the accused at the time and place alleged. find, however, that the consent of the complainant to the sexual acts was not freely given but given because of the threat of bodily harm to her from the accused and, therefore, was not valid consent. Upon all of the evidence considered as whole am satisfied beyond reasonable doubt that the accused committed the offence of sexual assault with weapon upon the complainant and find the accused guilty as charged." In accordance with the direction given in Yebes v. The Queen, 1987 CanLII 17 (SCC), [1987] S.C.R. 168, 36 C.C.C. (3d) 417, have carefully reviewed, considered, examined and, to some extent, reweighed the evidence. After so doing am of the opinion that it was open to the trial judge on the evidence before him to come to the conclusions he did. He accepted the evidence of the complainant and rejected that of the appellant. Then on an overview of all the evidence, he was satisfied that the guilt of the accused had been established beyond reasonable doubt. His approach and conclusion to my mind are unchallengeable. turn now to consideration of the appellant's application for leave to appeal against the sentence of eight years imprisonment. The appellant is now 37 years of age. He had been married but is now divorced and at the time of this offence had relationship with Miss W. He has Grade 12 education. He graduated from the [name of school changed] in 1973 after four year course as journeyman electrician. He worked for the N.... from 1971 to 1977 as an apprentice. For one year period, 1979‑80, he was employed as truck driver for H..... From 1982 until 1986 he resided in [...], Saskatchewan, where he was the owner/operator of satellite dish company. From November 1988 until May of 1989 he was employed with U.... in [...] as warehouse manager. The appellant does have prior criminal record, the details of which are as follows: 1) 1970 theft over fifty dollars [...], Nova Scotia; 2) 1982 driving with blood alcohol level in excess of .08 [...], Saskatchewan; 3) 1983 failing to remain at the scene of an accident [...], Saskatchewan. In imposing sentence Mr. Justice Tidman said: The courts in this province have been increasing the length of sentences for crimes of violence, particularly of violence against women. support this trend because it reflects society's growing abhorrence of this longstanding social problem. In keeping with that trend, sentence you to term of imprisonment of eight (8) years. In so doing, have also taken into consideration that you have been in custody for approximately ten (10) months, as your counsel points out, may, under the provisions of s. 221(b) of the Criminal Code." The predominant consideration in sentencing for sexual assault must, of course, be deterrence, the object being to deter the accused and others from emulating such conduct. I have considered the circumstances of the offence, the previous record of the accused and the remarks of the learned trial judge. Although the sentence can be considered as being at the high end of the range of sentencing for sexual assault, it is not manifestly excessive. It cannot be said that the eight years imprisonment was not a fit sentence in this case. In result, I would dismiss the appeal from conviction. I would grant the application for leave to appeal against sentence, but dismiss the appeal. The firearms prohibition order made by Mr. Justice Tidman under s. 100(1) of the Code will, of course, remain in full force and effect. J.A. Concurred in: Hallett, J.A. CANADA PROVINCE OF NOVA SCOTIA 1990 C.R. 10540 IN THE SUPREME COURT OF NOVA SCOTIA APPEAL DIVISION on appeal from the SUPREME COURT OF NOVA SCOTIA TRIAL DIVISION HER MAJESTY THE QUEEN P.W.B.. HEARD BEFORE: The Honourable Mr. Justice G. A. Tidman PLACE HEARD: Halifax, Nova Scotia DATES HEARD: January 26, 29, 30 and 31st, 1990 COUNSEL: Robert McCarroll, Esq., for the Prosecution Mark Knox, Esq., for the Defence S.C.C. No. 02343 IN THE SUPREME COURT OF NOVA SCOTIA APPEAL DIVISION and HER MAJESTY THE QUEEN Respondent REASONS FOR JUDGMENT BY: MACDONALD, J.A.

The appellant appealed his conviction for sexual assault using a weapon and his sentence of eight years. The appellant contended that his counsel had failed to call the complainant's boyfriend as a witness even though he was in the courthouse under a defence subpoena. The appellant also raised on appeal the fact that he had lost his right to a jury trial. He had failed to appear at the jury trial scheduled and a bench warrant had been issued. The Crown had then applied for an order that the appellant was no longer entitled to a jury trial and the record showed that his counsel had agreed to forfeit the right to a jury trial. The appellant contended that his counsel and the Crown both advised him he had lost his right by failing to appear and that he was not told that he could avoid losing his right if he had a legitimate excuse for failing to appear. He put forth the excuse of having had no counsel at the time of the trial. Dismissing the appeal, (1) that there was nothing to show that the witness would have given relevant evidence bearing on a decisive issue in the trial and the appellant failed to meet the burden of showing that the evidence, if believed, could reasonably have been expected to affect the result of the trial when considered with all the other evidence; counsel's decision not to call the witness where the witness was hostile and counsel did not know what he would say was not inappropriate, and, the court noted, in the circumstances, seemed to have been the right decision; (2) the excuse of failing to appear because he did not have counsel was not a legitimate excuse within the meaning of s. 598(1)(a) of the Criminal Code; moreover, the appellant only raised this issue in his oral submissions and gave no notice to the Crown respecting this issue nor did he provide any supporting evidence by way of affidavit; it was seen by the Court as another unsupported and unjustified criticism of counsel and the Court concluded that the record showed that the appellant had agreed to forfeit his right to a jury trial; and (3) that an eight year sentence, although at the high end of the scale for sexual assault, was not manifestly excessive, having regard to deterrence, the circumstances of the offence, and the appellant's record which included three minor offences.

3_1991canlii4569.txt

J. QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2006 SKQB 527 Date: 2006 12 12 Docket: U.F.C. No. 1140 of 1993 Judicial Centre: Saskatoon, Family Law Division IN THE MATTER OF THE INTER-JURISDICTIONAL SUPPORT ORDERS ACT, S.S. 2002, c. I-10.03 BETWEEN: BRADLEY GARY McLAUGHLAN and CHANTEL ROSANNE BRAUN Counsel: No one appearing for the applicant No one appearing for the respondent FIAT WILSON J. December 12, 2006 1) The applicant, Bradley McLaughlan, applies pursuant to the Inter-jurisdictional Support Orders Act, S.S. 2002, c. I-10.03 for a variation of support for the parties’ one child, Desiree May Braun-McLaughlan, born February 14, 1992. Mr. McLaughlan seeks both a variation in regard to his ongoing child support payments as well as rescission of arrears which have accumulated under the original child support order. 2) Mr. McLaughlan resides in British Columbia and Ms. Braun, along with the child, Desiree, resides in Saskatoon, Saskatchewan. Mr. McLaughlan has properly proceeded under The Inter-jurisdictional Support Orders Act in light of his residence and the fact that the original order was made pursuant to provincial as opposed to federal legislation. 3) By order dated July 17, 1995, granted in the Provincial Court of Alberta, Mr. McLaughlan was ordered to pay the sum of $500 per month as and for the support of the child, Desiree, which payments were to commence on the first day of September, 1995 and continue on the first day of each and every month thereafter until further order. This order was made prior to the introduction of the Federal Child Support Guidelines [Divorce Act Regulations, SOR/97-175] and, thus, Mr. McLaughlan has established the necessary change in circumstance, namely, the introduction of the Guidelines, in order to proceed with his variation regarding his ongoing maintenance payments. 4) Mr. McLaughlan has provided income tax summaries reflecting his income for the years from 1995 through to 2004. In addition, he swore financial statement, on February 15, 2006, wherein he sets out his current earnings. According to the evidence filed by Mr. McLaughlan, Mr. McLaughlan is earning the gross annual sum of $45,784. Based on these earnings, Mr. McLaughlan has an obligation, according to the British Columbia Tables, to pay the sum of $425 for the one child. Ms. Braun was served with this motion in October, 2006. It is, in my view, fair to adjust Mr. McLaughlan’s ongoing child support payments as at November 1, 2006. make the following order: The applicant, Bradley McLaughlan, shall pay to the respondent, Chantel Braun, as and for support of the child, namely, Desiree May Braun-McLaughlan, born February 14, 1992, the sum of $425 per month as child support, commencing on November 1, 2006 and continuing on the first day of each and every month thereafter. Mr. McLaughlan’s income, for the purposes of determining the appropriate quantum of child support, is determined to be the sum of $45,784. 5) Turning to the issue of arrears, Mr. McLaughlan provides evidence that he is currently in arrears under the July 17, 1995 order in the sum of $56,365.60. Mr. McLaughlan provides little explanation for his failure to pay the child support he was ordered to pay. In his materials he advises “we had a very bad breakup and being stubborn, I never looked back on that part of my life. That is why I never paid”. 6) As set out by M-E. Wright J. in Wurmlinger v. Cyca, 2003 SKQB 152 (CanLII), (2003), 231 Sask. R. 282 (Q.B.), at para. 2, number of factors are to be considered when determining whether arrears should be rescinded. The factors set out by Wright J. are as follows: 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 payments of arrears would cause hardship to the payor; and 7. The payor’s ability to pay the arrears at the time they were incurred. 7) Mr. McLaughlan has failed to provide the Court with an explanation as to his significant delay in seeking relief from child support arrears. Further, upon reviewing the income tax summaries filed by Mr. McLaughlan, it appears that he did have the ability to pay the ordered child support in some of the years since the order was granted. Mr. McLaughlan’s evidence as to his income from 1995 to 2004 is as follows: Year Gross income 1996 8,463 1997 $16,415 1998 $19,257 1999 $32,951 2000 (Business income reported as being gross commissions of $95,863 with total income of $12,871 no full income tax return filed to assess) 2001 (Business income reported at $85,050 with income after expenses (-$34,830) no full income tax return filed to assess) 2002 2,099 2003 $31,892 2004 $45,784 Mr. McLaughlan’s reason for failure to pay his support is as set out above. He was stubborn. Mr. McLaughlan provides no evidence as to why he earned little income from 1995 to 1998 and in 2002, and does not, in any way, suggest that he was ill, injured or unable to work for any reasonable reason. 8) Mr. McLaughlan appears to be suggesting that his payment of ongoing support, and any payment he must make towards arrears, leaves him in financial difficulties, given he has remarried and has two more children. However, in order to allow Mr. McLaughlan rescission, would have to determine that he has, firstly, present inability to pay arrears and, secondly, that he will not in the future be able to pay the arrears. (Vide: Wurmlinger v. Cyca, supra; Diebel v. Diebel (1997), 1997 CanLII 11005 (SK QB), 155 Sask. R. 96 (Q.B.)). 9) Given that Mr. McLaughlan is currently earning the sum of $45,784 per year, he can afford to pay reasonable payment towards the outstanding arrears. 10) For all the reasons set out above, I am dismissing Mr. McLaughlan’s application for rescission of arrears. J. D. L. Wilson

FIAT: The applicant applies for a variation of support for the parties' one child, born in February 1992. The applicant seeks both a variation and rescission of arrears which have accumulated under the original support order. HELD: 1) The applicant has established the necessary change in circumstance, namely the introduction of the Guidelines. Based on the applicant's income, his child support payment is reduced from $500 per month to $425 per month. 2) The applicant is in arrears in the amount of $56,365.60. He has provided little explanation for his failure to pay the child support he was ordered to pay other than he was stubborn. It is apparent that he had the ability to pay. The application for rescission for arrears is dismissed.

7_2006skqb527.txt

Dated: 19990512 Docket: 7533 THE COURT OF APPEAL FOR SASKATCHEWAN Coram: Vancise, Wakeling Jackson JJ.A. HER MAJESTY THE QUEEN COUNSEL: Mr. R. Piche for the appellant, Mr. W.D. Sinclair for the Crown DISPOSITION: On Appeal From: QBC 1183/97 J.C. Melfort Appeal Heard: January 13, 1999 Appeal Allowed: May 12, 1999. Reasons By: The Honourable Mr. Justice Wakeling In Concurrence: The Honourable Mr. Justice Vancise and The Honourable Madam Justice Jackson WAKELING J.A. [1] The appellant [H.LM.] (appellant) was found guilty of having sexually assaulted N.M. on October 4, 1988 causing bodily harm to her contrary to s. 272(c) of the Criminal Code. He has appealed the conviction on the ground that the trial judge erroneously interpreted s. 276 of the Code to prevent proper cross-examination of the complainant in relation to a previous allegation she had made relating to this sexual assault. [2] The offence is alleged to have taken place at the home of the appellant’s brother. The appellant had been asked by his brother and sister-in-law to babysit their daughter N.M.who was then nine years old. The allegation was that the appellant had entered her parent’s bedroom where she was sleeping and sexually assaulted her. [3] The evidence at trial included the testimony of [J.M. 1], the mother of the complainant, who indicated her daughter had advised her of the assault the following morning but her only response was to refrain from having the appellant babysit N.M. on any further occasion. [4] At trial, N.M. described the assault which she said took place in the darkened bedroom of her parents where she was sleeping while they were away. She indicated the assault included actual penetration. The next day she advised the parents of what had occurred but they were sufficiently sceptical of the truth of the allegation that they took no action and indeed her father believed she was lying. She went on to indicate the nature of her troubled childhood which involved excessive drinking, drugs, periods where she was in foster home or other care centres and included an indication that perhaps some of the problems she experienced in her youth were the result of either this assault by the appellant or the failure of the parents to believe that the assault had occurred. [5] It was only years later when she was talking with guidance counsellor at school she attended that she again mentioned the assault. Sometime after that this charge arose as result of her belief she could only rid herself of the concern she continued to feel by confronting the appellant, so she took her complaint to the police. [6] The appellant testified in his own defence and admitted being the baby sitter on the night in question as he had on many other occasions. He said he watched television then went to bed after first checking that N.M. was asleep. He denied that sexual assault of any kind had occurred. He also indicated the foster child [K.M.] was in the home on the night in question. [7] The only other evidence was provided by [J.M. 2], sister of the appellant, who gave character evidence including the fact that she regularly engaged the appellant as babysitter at her home without any reason for concern and that she has continued to do so despite this charge as she has complete confidence in him. [8] The appellant, who has no previous record, was convicted of the charge and sentenced to three years imprisonment. The conviction has been appealed on the primary ground that the trial judge failed to permit cross-examination of N.M., as to another complaint she had made regarding this sexual assault. [9] This above summary of the evidence brought out at trial is to provide the background to permit an understanding of the significance of the evidentiary question which arose during the cross-examination of N.M. The following portion of the transcript indicates the nature of the objection raised and the manner in which it was dealt with. Q. Now, you’ve made allegations previously that MS. CARDINAL: Objection. My Lord, think my friend is going to be bringing in, again, perhaps previous sexual assault. MR. BENDIG: don’t know whether there was. It was My Lord, want to question this Witness on something that’s within her Statement provided to us. It’s part of disclosure of of another –- of another individual she complains about and want to examine that area. MS. CARDINAL: Complains about what would be my question. THE COURT: don’t think you can do that without leave. And to get leave, you would have you would have had to bring in an earlier Application. MR. BENDIG: Well, My Lord, would then seek leave at this point. would ask for some discretion exercised here. [H.L.M.] is before this Court without having representation prior to this Trial. There was no Preliminary Hearing conducted. None of the these issues were examined previously. THE COURT: But, the Criminal Code is quite clear on this. You –you would you have to make an Application in writing and think it has to be made upon seven days notice; I’m not certain about that and you’ve had ample time to do that. MR. BENDIG: That that’s fair comment, My Lord. In response though, would would submit that the Crown is not taken –taken by surprise. We have directed this issue. The the name has come up, although the issue of of questioning along these lines has not been brought up. It is in disclosure. It’s part of the Statement. There have been discussions previously and would seek your leave, My Lord THE COURT: Well, think don’t think it’s with don’t think have the discretion. MS. CARDINAL: Two seventy-six point one. MR. BENDIG: So, My Lord, I’m I’m not asking to go into the merits of of any other previous sexual conduct. I’m asking to question her on complaint and what happened to that complaint. THE COURT: Would you excuse us for few moments, please? MR. BENDIG: Thank you, My Lord THE COURT: Just tell me exactly what this is about. MR. BENDIG: She has made she she lay in her Statement, she also makes allegations against the other individual in the house being [K.M.], the foster child. These allegations were charged upon and then withdrawn. What want to the there is possibility here –identity has not been specifically established. would like to perhaps examine that this room is dark and perhaps it was different individual. MS. CARDINAL: Well, My Lord, s. 276 is clear and 276.1 is even clearer, that any kind of sexual conduct between the Accused and the Complainant or the the complainant and any other person has to is not admissible, first of all, to show that she has consented or is less worthy of belief. And, before we can even embark on that kind of an inquiry, the –Defence has to being an Application before the before the Judge, give the Crown seven days written notice and outline all the particulars and the evidence they intend to call on that Application. And, the Complainant is not compellable on that Application. So, my friend hasn’t complied with the strict requirements of s. 276.1.1. There’s been no Written Notice, no dis–no notice to the Crown and to –for my friend to say well, should have some leeway, he didn’t have Prelim.– THE COURT: Well MS. CARDINAL: all that kind of thing, that –quite frankly, the THE COURT: It– MS. CARDINAL: That’s not relevant, My Lord MR. BENDIG: Just just one thing– THE COURT: But MR. BENDIG: more, My Lord THE COURT: But, what the question goes to– MR. BENDIG: It– THE COURT: is is not it, guess– MR. BENDIG: If the charge was withdrawn and perhaps it–it wasn’t even sexual activity is, guess THE COURT: What did– MR. BENDIG: ... the gist of it THE COURT: What did she say in the Statement? MR. BENDIG: Oh, the charge was stayed. MS. CARDINAL: And, explained to my friend why, already. And, as had told him; and, perhaps can tell the Court, don’t know, don’t want to get into too much of it THE COURT: MR. BENDIG: It happened shortly after. It was from my it wasn’t the same guy. I’m sor it goes on for quite detailed and on on what happened with [K.M.] as well. THE COURT: Well, don’t think you’re permitted to do that. don’t think can grant you leave at this stage. You could ask her if if if if you want to approach it different way, without reference to the Statement, you you could question her about the darkness of the room and if it was possible that it was someone other than the Accused, that it’s possible she made mistake here. MR. BENDIG: Okay. THE COURT: If you want to approach it from that–from that perspective. MR BENDIG: Well, would be able to ask her any questions about the –the stayed proceedings, in in that like, perhaps, did you lie about that and or anything of that nature? THE COURT: don’t think it’s in dispute that there were that there were proc proceedings involving somebody else and that they were stayed. MS. CARDINAL: But but, I’m no making that just want to be clear on this. This is, again, something that falls under the rule of s. 276 and note that other cases have been held that it was improper to cross-examine the Complainant concerning an allegation she made about another man and that the Judge didn’t err in refusing the Defence permission to call this man who had denied the allegation and testify he had been charged with sexually assaulting the victim and had been acquitted. THE COURT: Just MS. CARDINAL: That evidence isn’t THE COURT: did MS. CARDINAL: before the Court. It’s not admissible. THE COURT: think– MS. CARDINAL: think as well THE COURT: that’s right. MS. CARDINAL: Yeah THE COURT: If you had brought an application under 276.1, well the position may be different. But, you but, you haven’t done that and and, absent that, don’t have the discretion to allow you to do what you want to do. MR. BENDIG: Okay. That’s fair. We’ll go on then. [10] The relevant portions of ss. 276 and 276.1are as follows: 276(1) In proceedings in respect of an offence under s. 151, 152, 153, 155 or 159, subsections 160(2) or (3) or s.170, 171, 172, 173, 271, 272 or 273, evidence that the complainant has engaged in sexual activity, whether with the accused or with any other person, is not admissible to support an inference that, by reason of the sexual nature of that activity, the complainant (a) is more likely to have consented to the sexual activity that forms the subject-matter of the charge; or (b) is less worthy of belief. (2) In proceedings in respect of an offence referred to in subsection (1), no evidence shall be adduced by or on behalf of the accused that the complainant has engaged in sexual activity other than the sexual activity that forms the subject-matter of the charge, whether with the accused or with any other person, unless the judge...determines, in accordance with the procedures set out in sections 276.1 and 276.2, that the evidence (a) is of specific instances of sexual activity; (b) is relevant to an issue at trial; and (c) has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice. 276.1 (1) Application may be made to the judge, provincial court judge or justice by or on behalf of the accused for hearing under section 276.2 to determine whether evidence is admissible under subsection 276(2). (2) An application referred to in subsection (1) must be made in writing and set out (a) detailed particulars of the evidence that the accused seeks to adduce, and (b) the relevance of that evidence to an issue at trial, and copy of the application must be given to the prosecutor and to the clerk of the court. (3) The judge, provincial court judge or justice shall consider the application with the jury and the public excluded. (4) Where the judge, provincial court judge or justice is satisfied (a) that the application was made in accordance with subsection (2), (b) that copy of the application was given to the prosecutor and to the clerk of the court at least seven days previously, or such shorter interval as the judge, provincial court judge or justice may allow where the interests of justice so require, and (c) that the evidence sought to be adduced is capable of being admissible under subsection 276(2), the judge, provincial court judge or justice shall grant the application and hold hearing under section 276.2 to determine whether the evidence is admissible under subsection 276(2). [11] It is apparent from the transcript that no effort was made to present brief by either counsel on the application of s. 276 to this case. The trial judge was left to determine from his prior experience or his reading of the section at the time the objection was raised the extent of its application to the facts at hand. [12] Section 276 is generally considered to have been passed to prevent the continuance of the prevailing practice of defence counsel of engaging in far reaching exploration into the nature of the previous sexual activities of the complainant with view to persuading the trier of fact to conclude the complainant was more likely to have consented to this sexual activity or was less worthy of belief. This section met this objectionable practice by requiring cross-examination be restricted to that permitted by the trial judge after due notice of an intention to apply for such permission had been given. similar rationale for the introduction of this section has also been provided by Russell J.A. in R. v. Brothers, 1995 ABCA 185 (CanLII), [1995] 40 C.R. 250 (Alta. C.A.) at p. 258: The section is intended to eradicate negative stereotyping associated with the myth that person who has been sexually active is less virtuous, and more likely to consent to other sexual activity, or be less credible. Though the amendments circumscribe the prohibition, the general intent of the section is unchanged. Evidence of previous sexual activity is irrelevant to either credibility or consent. [13] It seems the question that should have been put to the trial judge on this occasion was whether this section was applicable to a situation involving non-consensual sex. The complainant was not being questioned about her consensual sexual activities, but rather about a previous complaint of a sexual assault. It is understood the intent was to indicate the complaintant had implicated someone else as the assailant and after investigation the complaint had not been acted upon. That evidence could have placed in doubt the reliability of the complainant’s identification of the person who assaulted her since the room was dark when the assault was alleged to have occurred. [14] The protection s. 276 provides complainant is the recognition that the sexual activity person engages in is irrelevant and nobody else’s business. On the other hand, the ability of an accused to make full answer and defence is protected by his right to have voir dire to provide an opportunity to show the relevance of such testimony and the consequent need for its disclosure. The issue which arises here and should have been put to the trial judge is whether this protection to the complainant is intended to extend to incidents of non-consensual sex. The need to extend this protection to non-consensual sex is not apparent. That information does not involve the right to keep confidential chosen lifestyle as it only requires complainant to be open about those occasions when sexual assault has been alleged on another occasion. The existence of such previous assault may or may not be relevant information, but it should not be excluded for the reason it discloses lifestyle that the complainant has chosen to adopt for that is clearly not what such disclosure reveals. [15] The Crown contends that the intent of the section is to protect the privacy of any sexual activity of complainant and that right should just as appropriately extend to instances where that person is the victim of an assault. There is, however, clear distinction between the need to provide protection from the public exposure of lifestyle complainant has chosen to engage in, and the need to protect that person from providing information regarding an incident which does not involve any voluntary action. That kind of information should not be restricted unless the section specifically so provides and it does not appear to do so. The relevance such information may have is illustrated by this case in which it bears either upon the identity of the alleged assailant or the propensity of complainant to make such allegations or perhaps the credibility of the complainant and the resultant reliability of the evidence. For this reason do not believe this section should be interpreted as having application beyond the incidence of consensual sex. In this respect, am supported by the judgment of Roscoe J.A. of the Nova Scotia Court of Appeal in R. v. B.(O) 1995 CanLII 7507 (NS CA), [1995] 45 C.R. 68 at p. 94: In my opinion, s. 276 is not applicable to non‑consensual sexual activity. agree with the decision in R. v. Vanderest (1994), 1994 CanLII 2542 (BC SC), 91 C.C.C. (3d) 5, 24 W.C.B. (2d) 17 (B.C.S.C.), on this question where Lysyk J. said at pp. 7‑8: The terminology of s. 276(1) closely tracks passage in the reasons of McLachlin J., delivering the reasons of the majority, in R. v. Seaboyer (1991), 1991 CanLII 76 (SCC), 66 C.C.C. (3d) 321 at p. 409, 83 D.L.R. (4th) 193, [1991] S.C.R. 577, where she summarizes the applicable principles and formulates the first of those principles in the following terms: 1. On trial for sexual offence, evidence that the complainant has engaged in consensual sexual conduct on other occasions (including past sexual conduct with the accused) is not admissible solely to support the inference that the complainant is by reason of such conduct: (a) more likely to have consented to the sexual conduct at issue in the trial; (b) less worthy of belief as witness. It is the case that McLachlin J. refers expressly to evidence of consensual sexual conduct whereas s. 276(1)be explained, however, on the basis of economy of expression in the statutory language inasmuch as the reference to the complainant having “engaged in” certain activity clearly excludes non‑consensual activity. If, for example, bank teller complies with demand from an armed bandit to hand over cash, one would not, in ordinary use of the English language, say that the teller has engaged in bank robbery. Accordingly, on natural reading of s. 276(1) of the Code as well as on authority, conclude that the primary position taken by defence counsel is correct, that is to say, s. 276(1) and related provisions are not triggered by evidence of non‑consensual sexual activity. The conclusion reached in Vanderest was approved in R. v. Eyre, [1995] B.C.J. No. 1377 (QL) [summarized 27 W.C.B. (2d) 499 (S.C.)], leave to appeal refused by British Columbia Court of Appeal, [1995] B.C.J. No. 1936 (QL) [summarized 28 W.C.B. (2d) 321]; and in R. v. Sakakeesic, [1994] O.J. 2021 (QL) [summarized 24 W.C.B. (2d) 588 (Prov. Div.)]. [16] Even if had not concluded that s. 276 did not apply to non-consensual sex, would have concluded that the question put to N.M. did not give rise to the application of s. 276. It was factually relevant question that has as its focus the existence of previous complaint. The relevance of such a question pertaining to the existence of another complaint made by N.M. in respect of the same assault is obvious. It does not raise the issue of N.M. having “engaged in sexual activity”. This being so, N.M. should have simply been directed to respond to the question, not so as to permit an assessment of N.M.’s previous sexual conduct, but to clarify what previous complaint she may have made about this alleged assault. That question had a direct bearing on her credibility. [17] In my view, the failure of the trial judge to allow this cross-examination has prevented the appellant from having a fair trial as he has been denied the opportunity to make full answer and defence. This is not case which calls for an analysis of extensive evidence, rather it is dependant entirely upon finding of credibility and reliance upon the testimony of one person recalling an incident which occurred nearly ten years earlier. One cannot accurately assess what the result would have been had the cross-examination been allowed, however, it is enough to warrant new trial if the failure to present this evidence may reasonably have had an influence on the trial judge’s conclusion. [18] Several other issues were raised by the appellant, but in view of the conclusion have reached that the failure to permit cross-examination of N.M. regarding another complaint she made about sexual assault prevented the appellant from making full answer and defence, do not feel it is necessary to deal with these another issues. [19] In the result, the appeal is allowed and a new trial ordered. Dated at the City of Regina in the Province of Saskatchewan this 12th day of May 1999. WAKELING J.A. concur VANCISE J.A. concur JACKSON J.A.

The appellant appeals his conviction of sexual assault causing bodily harm on the ground the trial judge erred in preventing cross-examination of the complainant. The trial judge prevented the cross-examination of the complainant in relation to a previous allegation she had made relating to this sexual assault. The offence is alleged to have taken place at home of the appellant's brother. The appellant was asked by his brother and sister-in-law to babysit their daughter. The allegation was that the appellant had entered her parent's bedroom where she was sleeping and sexually assaulted her. The appellant, who has no previous record, was convicted of the charge and sentenced to three years imprisonment. The appellant during cross-examination of the complainant attempted to question her regarding a previous allegation regarding the same sexual assault against another person. The trial judge did not permit this line of questioning as he held it pertained to her past sexual history. HELD: Appeal allowed. The failure of the trial judge to allow this cross-examination has prevented the appellant from having a fair trial as he has been denied the opportunity to make full answer and defence. It seems the question that should have been put to the trial judge on this occasion was whether this section was applicable to a situation involving non-consensual sex. The complainant was not being questioned about her consensual sexual activities but rather a previous complainant of a sexual assault. It is understood the intent was to indicate the complainant had implicated someone else as the assailant and after investigation the complaint had not been acted upon. That evidence could have placed in doubt the reliability of the complainant's identification of the person who assaulted her since the room was dark when the assault was alleged to have occurred. The relevance of such a question pertaining to the existence of another complaint made by the complainant in respect of the same assault is obvious. That question has a direct bearing on her credibility.

3_1999canlii12362.txt

IN THE SUPREME COURT OF NOVA SCOTIA Citation: R. v. Taylor, 2006 NSSC 280 Date: 20060925 Docket: SH 257619 Registry: Halifax Between: Terry E. Taylor v. Her Majesty the Queen Respondent Judge: The Honourable Justice Arthur J. LeBlanc Heard: March 27th April 11th, 2006, in Halifax, Nova Scotia Counsel: Duncan Beveridge, Q.C., for the Applicant Christa MacKinnon, for the Respondent By the Court: Introduction [1] This is an application for an Order in the nature of certiorari (pursuant to Rule 58 and s. 482(3)(c) of the Criminal Code) relating to the issuance of a search warrant on May 3, 2005. The warrant was based on an Information to Obtain sworn by Paul Patterson, Canada Revenue Agency (CRA) officer. The warrant authorized the search and seizure of the applicant’s accounting records for the period January 1, 2001 to December 31, 2003. The warrant alleged that the applicant, an accountant who runs his business out of his home, filed fraudulent T4 and created false T4 income in order to obtain tax refund, and misreported HST sales. An earlier Information, sworn on April 21, 2005 had been basis for prior warrant issued that day. The warrants were identical except for clarification in the May warrant specifying what records were to be the object of the search. The May warrant was executed by Mr. Patterson and other CRA officers on May 5. [2] The applicant seeks ancillary relief of declaration that his rights under ss. and of the Charter of Rights and Freedoms were infringed. The specific grounds are as follows: 1. THAT the information Sworn to Obtain the search warrant contains incomplete and misleading information and, in any event, the learned Justice of the Peace erred in concluding that the necessary grounds existed for the issuance of the search warrant; 2. THAT the learned Justice of the Peace ought to have recused himself from considering the application to issue a search warrant, having previously acted in a solicitor/client relationship with the spouse of the Applicant, creating a reasonable apprehension of bias and depriving the Applicant of natural justice. [3] After the search the applicant demanded the return of the seized documents. He says that some of the documents, but not all, were eventually returned. Standard of Review [4] The warrant was issued by Justice of the Peace pursuant to section 487 of the Criminal Code. Subsection 487(1) sets out the requirements for an information to obtain search warrant: 487. (1) justice who is satisfied by information on oath in Form that there are reasonable grounds to believe that there is in building, receptacle or place (a) anything on or in respect of which any offence against this Act or any other Act of Parliament has been or is suspected to have been committed, (b) anything that there are reasonable grounds to believe will afford evidence with respect to the commission of an offence, or will reveal the whereabouts of person who is believed to have committed an offence, against this Act or any other Act of Parliament, (c) anything that there are reasonable grounds to believe is intended to be used for the purpose of committing any offence against the person for which person may be arrested without warrant, or (c.1) any offence‑related property, may at any time issue warrant authorizing peace officer or public officer who has been appointed or designated to administer or enforce federal or provincial law and whose duties include the enforcement of this Act or any other Act of Parliament and who is named in the warrant (d) to search the building, receptacle or place for any such thing and to seize it, and (e) subject to any other Act of Parliament, to, as soon as practicable, bring the thing seized before, or make report in respect thereof to, the justice or some other justice for the same territorial division in accordance with section 489.1. [5] The entry and search of private premises by public officers without legal warrant is severe infringement of civil rights: The Queen v. Paint (1917), 51 N.S.R. (2d) 114 (S.C.) at pp. 117-118. In order to comply with section of the Charter of Rights and Freedoms search must be authorized based on reasonable and probable grounds to believe that an offence has been committed and that there is evidence to be found on the premises: Hunter et al. v. Southam Inc. 1984 CanLII 33 (SCC), [1984] S.C.R. 145. [6] Hill J. discussed “reasonable and probable grounds” in R. v. Sanchez and Sanchez (1994), 1994 CanLII 5271 (ON SC), 93 C.C.C. (3d) 357 (Ont. Ct. Gen. Div.) at p. 367: Section 487(1) of the Code requires reasonable grounds as the standard of persuasion to support issuance of search warrant. Judicially interpreted, the standard is one of credibly based probability.... Mere suspicion, conjecture, hypothesis or "fishing expeditions" fall short of the minimally acceptable standard from both common law and constitutional perspective. On the other hand, in addressing the requisite degree of certitude, it must be recognized that reasonable grounds is not to be equated with proof beyond reasonable doubt or prima facie case.... The appropriate standard of reasonable or credibly based probability envisions practical, non‑technical and common sense probability as to the existence of the facts and inferences asserted. Not only must the affiant subjectively or personally believe in the accuracy and credibility of the grounds of belief, but lawful issuance of warrant also requires that the peace officer establish that, objectively, reasonable grounds in fact exist. In other words, would reasonable person, standing in the shoes of the police officer, have believed that the facts probably existed as asserted and have drawn the inferences therefrom submitted by the affiant.... [Emphasis in original. Citations omitted.] [7] In Re Carroll and Barker and The Queen (1989), 1989 CanLII 206 (NS CA), 88 N.S.R. (2d) 165 (S.C.A.D.) MacDonald J.A. said, at para. 7: From its earliest beginnings, English law has recognized the sanctity of person's home and, therefore, the issuance of warrant to search private dwelling is not perfunctory matter. Warrants must not be issued to enable the police to go on "fishing expedition" but rather can only be issued after the justice of the peace is satisfied that the information offered in support of the request for search warrant meets the requirements of s. 487(1) of the Code. [8] MacDonald J.A. went on to describe the scope of review at para 9: justice of the peace in deciding to grant search warrant is performing judicial function. The scope of review of his decision is limited to an inquiry whether or not there was some evidence upon which he, acting judicially, could be satisfied that reasonable grounds existed for believing any of the things set out in s. 487(1)(a) to (c) of the Criminal Code. The reviewing court cannot substitute its opinion as to the sufficiency of the evidence. The test is, therefore, not whether the justice of the peace should have been satisfied on the evidence presented to him, but rather could he have been satisfied on such evidence that there were reasonable and probable grounds for believing that the articles sought would be of assistance in establishing the commission of an offence and would be found in the premises sought to be searched.... [Citation omitted.] [9] In R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] S.C.R. 1421, Sopinka J., writing for the majority, said, at para. 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. [10] Garofoli involved wiretap authorizations, but the principles are relevant in the context of search warrants: R. v. Morris (1998), 1998 CanLII 1344 (NS CA), 173 N.S.R. (2d) (C.A.) at para. 37. [11] An informant seeking search warrant is obliged to make full and frank disclosure to the presiding judicial officer. Errors in the information presented to the Justice of the peace must be removed from the Information Sworn to Obtain the warrant: R. v. Hosie (1996), 1996 CanLII 450 (ON CA), 107 C.C.C. (3d) 385 (Ont. C.A.). However, such errors, even if they are fraudulent, do not automatically vitiate the issuance of the warrant. The question is whether there is “sufficient independently verifiable information ... upon which an authorization could reasonably be based”: R. v. Bisson, 1994 CanLII 46 (SCC), [1994] S.C.R. 1097 at para. 2. The process requires candour on the part of the informant, as Cromwell J.A. noted in Morris at para. 34: The nature of the process demands candour on the part of the police. They are seeking to justify significant intrusion into an individual's privacy. This is especially so when it is proposed to search dwelling house which has long been recognized as the individual's most private place. The requirement of candour is not difficult to understand; there is nothing technical about it. The person providing the information to the justice must simply ask him or herself the following questions: "Have got this right? Have correctly set out what I've done, what I've seen, what I've been told, in manner that does not give false impression?": see R. v. Dellapenna (1995), 1995 CanLII 428 (BC CA), 62 B.C.A.C. 32 (B.C.C.A.) per Southin J.A. at para 37. [12] Under the heading “Things to be Searched For” in the Information, the informant, Mr. Patterson, stated that he had reasonable and probable grounds to believe that certain things namely “the business records for the accounting periods of Terry E. Taylor for the period from January 1, 2001, to December 31, 2003" would be found at Mr. Taylor’s place of business, located in his and Ms. Taylor’s residence, and in any storage facilities occupied by Mr. Taylor at that location. [13] The “things to be searched for” included banking records (including statements, cancelled cheques, deposit slips, debit and credit card memoranda, cheque stubs; cheque registers credit card statements and bank drafts); correspondence, documents, memoranda, agreements and contracts; and working copies of T1 and HST returns, including financial statements, correspondence, documents memoranda and notes relating to the taxation years 2001, 2002 and 2003, belonging to or pertaining to Mr. Taylor, or Mr. Taylor and Ms. Taylor jointly. The Information also sought Mr. Taylor’s accounting records, including sales invoices, purchase orders, lease documents, expense vouchers and supporting documents, invoices for capital dispositions and invoices for capital expenditures for the same period. Finally, the informant intended to search for computer storage media containing records pertaining to the same matters, as well as the hardware and software required to access the records. [14] The Information to Obtain alleged that the applicant had made false or deceptive statements in tax return with respect to refund, an offence pursuant to s. 239(1.1)(a) of the Income Tax Act, and claimed refund exceeding that to which he was entitled, an offence pursuant to s. 239(1.1)(e). large part of the April 21 Information which was adopted by the May Information described the inquires made by the informant, Mr. Patterson, with respect to an allegedly false T4 slip filed by Mr. Taylor. The informant then stated that these inquiries had raised question about Mr. Taylor’s HST returns: 20 In the course of his inquiry, the Informant confirmed that the professional accounting services that Terry E. Taylor provides are considered as fully taxable supplies with regards to HST sales in accordance to the Excise Tax Act. The Informant confirmed with the audit division of CCRA that reported annual T1 income should be consistent with reported HST annual taxable sales. 21 In the course of his inquiry, the Informant conducted comparison of Terry E. Taylor’s reported annual HST taxable sales amounts and his reported annual T1 Returns of Income and as result revealed significant discrepancies.... [15] The alleged discrepancies were set out in table purporting to show discrepancies between “Total HST Sales” and “Reported Net Income” for the years 2001-2003. It showed discrepancy of $209,583.49 over the three years. The informant continued: 22. During the course of his inquiry, the Informant noted that Terry E. Taylor reported his total gross income for the calendar year 2001 as $4,478.00, which is the same amount he reported for HST sales for the last quarter, October 1st to December 31st 2001. As the table shows in paragraph 21, Terry E. Taylor did not include the remaining $53,204.00 as T1 business income. [16] Mr. Patterson stated that this inquiry provided the reasonable and probable grounds necessary to justify search warrant: 23. As result of the Informant's inquiry in paragraph's [sic] 20, 21, and 22, the Informant has reasonable and probable grounds to believe and does verily believe that he needs to seize and secure the items listed in paragraph 1, (a) to (g), inclusive, of the Things to be Searched For, in order to address the discrepancies listed therein. [17] Paragraph 26 summarized the basis for seeking the warrant: 26. As result of the Informant’s inquiry in paragraphs one (1) to twenty-four (25) [sic] above, the Informant has reasonable and probable grounds to believe and does verily believe that Terry E. Taylor has reported fraudulent T4 employment income 2001, 2002 and 2003 and has also improperly reported his T1 Returns of Income for 2001, 2002 and 2003, and/or his HST sales, for the purpose of claiming tax refunds from CCRA. [18] The applicant, Mr. Taylor, claims that paragraphs 20–23 of the April 21 Information were misleading. With respect to the 2001 shortfall (paragraph 22) he says his HST returns were amended in 2002 and that he received Notice of Reassessment. He says Mr. Patterson had no explanation for not knowing this, even though he had in his file materials confirming statement of audit adjustments (for the period July 1-September 30, 2001) in February 2002. Further, the applicant says, the entries on the table for 2002 and 2003 suggest that he over-reported his income, which could have been explained by “genuine inquiry” to CRA auditor. [19] In cross-examination Mr. Patterson agreed that there were errors in paragraphs 20, 21 and 22 of the April 21 Information. When asked whether paragraphs 20-23 were the “crux” of the Information, he said, “I would say so.” He agreed that he would not have sought the warrant without those paragraphs. On redirect, however, he was directed to paragraph 26, which he said “wraps up” Information. Counsel then asked whether, if the defective paragraphs were removed, “would you still have gone to get ... search warrant.” Mr. Patterson answered “[i]f those were excluded, yes, based on that paragraph, probably would feel more comfortable.” [20] The applicant argues that the impugned paragraphs must be struck from the Information, and alleges that but for the allegations in paragraphs 20-23 the respondent would not have sought the warrant. The respondent does not claim that paragraphs 20-23 can be preserved, but argues that there is no evidence that Mr. Patterson intended to deceive the Justice of the Peace. The Agency claims that the “things to be searched for” had relevance beyond the discrepancies, and argues that if paragraphs 20-23 are removed the Court must still consider what remains in order to determine whether the Justice of the Peace could have found reasonable and probable grounds upon which to issue the search warrant. The respondent suggests that even without paragraphs 20-23, there were reasonable and probable grounds to issue the warrant. [21] In dealing with the issue of whether Mr. Patterson would have sought warrant in the absence of the defective paragraphs, it is important to be mindful that he had in his file information that would have addressed his concern about HST reporting. [22] In his answers on redirect, Mr. Patterson did not say that he would have sought the warrant in the absence of the defective paragraphs, but only that he would have been “more comfortable” without them. As I understand his comment, he meant that he would be more comfortable omitting information that he now knows to be erroneous. In light of his clear statement on cross-examination, I am satisfied that Mr. Patterson’s own evidence supports the inference that he would not have pursued a warrant without paragraphs 20-23 in the Information. [23] As to the allegations arising from the allegedly fraudulent handwritten T4 employment form submitted by Mr. Taylor, Mr. Patterson stated that he was advised Mr. Taylor did not appear as an employee on the T4 summary prepared by the trustee in bankruptcy on behalf of AMTL for 2003. He was advised that John William Perry, the president of AMTL, and Sean MacNeil, the trustee’s representative, stated that Mr. Taylor was not an employee of the company. Furthermore, Mr. Patterson also contacted the Nova Scotia Assessment Office to determine if Mr. Taylor was assessed for business occupancy purposes at 110 Thornhill Drive, Halifax and was advised there was no such assessment. Mr. Taylor had filed T4 employment slip reporting income of just over $108,000. On cross-examination, Mr. Patterson acknowledged that Mr. Perry would have been exposing himself and the company to liability if the company had failed to remit taxes and necessary deductions on Mr. Taylor’s income. He also agreed on cross-examination that he was familiar with the practice of “income averaging, which might cause an employee to report income higher than that which was actually received in particular year. [24] The material that remains in the Information essentially relates to the T4 slip and payroll anomalies. am satisfied from his evidence that Mr. Patterson would not have proceeded on the strength of an allegedly fictitious T4 employment statement alone, without first pursuing other avenues short of the extreme measure of searching private home. The Agency did not approach the applicant for clarification, for instance by commencing an audit or seeking an explanation from him directly. note that the search of Mr. Taylor’s home produced letter signed by Mr. Perry stating that Mr. Taylor was an employee. While this letter was, of course, not available to Mr. Patterson before the search, Mr. Taylor could have produced it in response to an inquiry without the need for search. [25] The errors in paragraphs 20-23 of the Information are undisputed, and serious. The errors occurred despite the presence of contrary information in the informant’s file. The informant regarded these paragraphs as the “crux” of the Information and stated that he would not have proceeded without them. accept this. Once the allegation of misleading and inaccurate HST reporting is removed, the substance of the Information rests upon the handwritten T4 submitted by Mr. Taylor that did not appear to be reconciled with the company payroll. Without denying the potential seriousness of these allegations, I cannot conclude that they rise above the level of “suspicion” to make out reasonable and probable grounds for a warrant to search the applicant’s (and his wife’s) home. Bias and Apprehension of Bias [26] Mr. Taylor testified that Mr. Angus MacIntyre, the Justice of Peace who issued the Search Warrant, had provided independent legal advice to his wife, Lisa Taylor, in respect of mortgage transaction around 1998. He had contacted Mr. McIntyre to represent his wife. Initially, both he and Ms. Taylor went to Mr. McIntyre’s office. Mr. MacIntyre provided advice and presumably his fees were paid by Mrs. Taylor or by the lending institution. Any documents completed by Mr. McIntyre would likely have been forwarded to the lending institution. [27] Several years later, Mr. Taylor estimates around 2000, Mr. and Ms. Taylor were having marital difficulties and Ms. Taylor retained Mr. McIntyre. Mr. McIntyre did not prepare separation agreement or write to Mr. Taylor. It appears that office consultations occurred. There were no court proceedings under the Divorce Act or the Matrimonial Property Act. It appears that these marital difficulties were resolved and Mr. McIntyre did not have continued involvement. [28] Mr. MacIntyre also represented Ms. Taylor with respect to claim against her by Canada Trust. Apparently she had signed either the mortgage or guarantee on the covenants. [29] On behalf of the agency, it is pointed out that Mr. MacIntyre did not act on Ms. Taylor's behalf in respect of any tax investigation. Furthermore, his representation occurred five to seven years before the issuance of the warrant. Mr. McIntyre did not appear in court on behalf of Ms. Taylor, and did not correspond with Mr. Taylor on her behalf. [30] Mr. Taylor said he was unaware that Mr. MacIntyre had been consulted by his wife in relation to any of the income tax investigations carried on by the CRA. At no time did Mr. MacIntyre make any claim against him, directly or indirectly. He added that Mr. MacIntyre had never represented him and he had not appeared in court in any proceeding where Mr. MacIntyre represented the opposite party. [31] The issue is whether there is bias or reasonable apprehension of bias. The applicant maintains that the contacts between Ms. Taylor and Mr. McIntyre give rise to reasonable apprehension of bias. The agency suggests that the contacts here were too indirect or inconsequential to raise the issue of bias, citing the following passage in R. D. Kligman, Bias (Toronto: Butterworths, 1998) at p. 14: For the issue of bias to arise, the relationship must not be too indirect or inconsequential. Thus, the mere fact that someone involved in the decision-making process has previously acted for party in professional capacity does not necessarily give rise to reasonable apprehension of bias… Of course, the result can be different where the relationship is recent or is one that can be said to have touched on matters in issue. Thus, in Turpin v. Wilson,[(1995), 1995 CanLII 7429 (ON SC), 130 D.L.R. (4th) 158 (Ont. Gen. Div.)] it was held to be inappropriate for an arbitrator of matrimonial property dispute who was lawyer, to act where he had represented the husband in previous matrimonial proceedings. [32] And at p. 12: In R.v. Godin, [(1996), 1996 CanLII 3608 (PE SCAD), 141 Nfld. P.E.I.R. 88 (P.E.I.S.C.A.D.)] it was held that the fact that trial judge once acted as counsel for the accused in another matter did not necessarily give rise to reasonable apprehension of bias or constitute an infringement of the right guaranteed by section 11(d) Canadian Charter of Rights and Freedoms.... [33] The Agency refers to Chisolm v. MacDonald (1985), 68 N.S.R. (2d) 337 (S.C.T.D.), where an accused charged under the Criminal Code sought an Order for Prohibition to remove provincial court judge from presiding at his trial because the judge, when he was lawyer, pursued civil action against the accused. Further, the judge had publicly proclaimed an attitude towards sentencing for offences of the kind with which the accused was charged. The issue was whether there was reasonable apprehension of bias. The civil action had been settled short of trial. There was no evidence of what stage proceedings had reached at the time of settlement or of any further contact between the judge and the accused. At para 10 Grant J. said: As understand the state of the law, it must be shown that there is real likelihood of bias, or that it is perceived that there is real likelihood of bias: see De Smith, Judicial Review of Administrative Action, p. 250: “In developing the modern law relating to disqualification of judicial officers for interest and bias, the superior courts have striven to apply the principle that it ‘is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done,’...” and at p. 399: “The usual remedy for breach of the rules of natural justice is certiorari to quash; but in proper case prohibition may issue to prevent tribunal that is disqualified for interest or likelihood of bias from proceeding further with matter over which it has assumed jurisdiction.” [34] Grant J. concluded that the facts did not support reasonable apprehension of bias. [35] In R. v.Dunn (1996), 1996 CanLII 3702 (PE SCTD), 138 Nfld. P.E.I.R. 46 (P.E.I.S.C.T.D.), affirmed (1996), 1996 CanLII 3607 (PE SCAD), 140 Nfld. P.E.I.R. 269 (P.E.I.S.C.A.D.), application for leave to appeal dismissed, [1996] S.C.C.A. No. 359, the application sought the disqualification of provincial court judge from hearing his trial on the basis of an apprehension of bias. The applicant claimed the judge had represented him in criminal matters when she was legal aid lawyer, and that he had dismissed her as her counsel in the last matter on which she had been retained. The charges before the Court were not related to those in respect of she had acted as lawyer. DesRroches J. stated that provincial court judges were trained to disregard facts not in evidence and were bound by an oath to truly and faithfully execute his or her duties as judge. At para. 10, the Court noted: It has been judicially held that prior judicial contact with an accused will not, per se, satisfy the test. In R. v. Bolt (R.I.) (1995), 1995 ABCA 22 (CanLII), 162 A.R. 204 Russell J.A., speaking for the Court, says this: “… It is inevitable that there will be occasions when an experienced trial judge will have had some prior judicial contact with an accused. We are confident that trial judges are capable of disabusing their minds of that fact in considering the guilt or innocence of the accused in relation to the specific charge before them. Unless real bias can be shown, such prior contact is not factor in determining an appearance of bias.” [36] DesRoches J. referred to Chisolm and stated that where the judge had acted in civil case against the accused that was unrelated to the matter before the court it was necessary to establish real likelihood of bias. He also referred to the Supreme Court of Canada decision in R. v. Genereux 1992 CanLII 117 (SCC), [1992] S.C.R. 259 which provided guideline for assessing impartiality under s. 11(d) of the Charter Rights and Freedoms. In that decision, Lamer C.J.C. stated: To assess the impartiality of tribunal, the appropriate frame of reference is the ‘state of mind’ of the decision maker. The circumstances of an individual case must be examined to determine whether there is reasonable apprehension that the decision-maker, perhaps by having personal interest in the case, will be subjectively biased in the particular situation. [37] The applicant also refers to relies the comments of Vancise J.A., for the majority of the Saskatchewan Court of Appeal, in R.v. Baylis (1988), 1988 CanLII 5166 (SK CA), 66 Sask. R. 268 (C.A.). In Baylis the accused, charged with various drug offences, argued that the search violated s. of the Charter because the Justice of the Peace who issued the warrant was not neutral and impartial. The Justice of the Peace was an airport commissionaire who reported to the RCMP at the airport. Vancise J.A. said: [37] justice issuing search warrant is acting judicially. Dickson J., in Attorney-General of Nova Scotia et al. v. MacIntyre (1982), 1982 CanLII 14 (SCC), 65 CCC (2d) 129 at 141, 132 D.L.R. (3d) 385 stated: “The issuance of search warrant is judicial act on the part of the justice, usually performed ex parte and in camera, by the very nature of the proceedings.” justice required to decide whether there is sufficient evidence to justify issuing the search warrant must be unbiased, neutral, detached, as between the State and the citizen, and there must be no real or apprehended perception of partiality. [38] The concept of impartiality and neutrality embraces the concept of bias or reasonable apprehension of bias. The principle that person exercising judicial function must be free of bias was expressed by Viscount Cave in Frome United Breweries Co. Ltd. et al. v. Bath Justices, [1926] A.C. 586, at 590: “My Lords, if there is one principle which forms an integral part of the English law, it is that every member of body engaged in judicial proceeding must be able to act judicially; and it has been held over and over again that, if member of such body is subject to bias (whether financial or other) in favour of or against either party to the dispute or is in such position that bias must be assumed, he ought not to take part in the decision or even to sit upon the tribunal. This rule has been asserted, not only in the case of courts of justice and other judicial tribunals, but in the case of authorities which, though in no sense to be called courts, have to act as judges of the rights of others.” [39] The test to be applied to determine whether bias or reasonable apprehension of bias exists is that set forth by Laskin C.J.C., speaking for the majority, in Committee for Justice Liberty et al. v. National Energy Board et al., 1976 CanLII (SCC), [1978] S.C.R. 369; ... 68 D.L.R. (3d) 716 at 733: “This Court in fixing on the test of reasonable apprehension of bias ... was merely restating what Rand, J., said in Szilard v. Szasz, 1954 CanLII (SCC), [1955] D.L.R. 370 at p. 373, [1955] S.C.R. at pp. 6-7, in speaking of the ‘probability or reasoned suspicion of biased appraisal and judgment, unintended though it be’. This test is grounded in firm concern that there be no lack of public confidence in the impartiality of adjudicative agencies, and think that emphasis is lent to this concern in the present case by the fact that the National Energy Board is enjoined to have regard for the public interest.” [40] The trial judge concluded that there was no evidence of bias. In so finding he relied on the fact that Pearce had not been subject to any disciplinary action, and that there had been no inquiry with respect to the quality of her work. With respect, that determination misses the mark. The question to be decided is whether any reasonable person would have reasoned suspicion that the person authorizing the search could not assess the evidence presented to him or her in an impartial, neutral, and detached manner. [41] The purpose of requiring prior authorization of warrant to search and seize by neutral and detached person is to ensure that the individual's right to privacy and to be secure against search and seizure will only be breached if the State demonstrates that the appropriate standard has been met judicially in neutral, detached and impartial manner. The neutral and impartial assessment of the evidence of probable cause, which has long been guaranteed by the Fourth Amendment in the United States, is concept similar to the requirement that there is reasonable cause for believing that things exist in the place to be searched prior to the issuance of search warrant.... [38] Vancise J. A. held that the Justice’s close contact with the RCMP created reasonable apprehension of bias such that reasonable person would believe that there was “real danger of bias” on account of the Justice’s “perceived susceptibility ... to intimidation or coercion by the R.C.M.P.” There was no evidence that this had actually occurred, August 22, 2006 but, Vancise J.A. said, this was not the issue. The issue, rather, was “that of impartiality, of neutrality, and detachment in the performance of judicial duties, and the requirement that there be no reasonable suspicion of partiality, bias or lack of neutrality.” In the circumstances there was reasonable apprehension of bias, and, as such, the search was made under an inappropriately obtained warrant, rendering it illegal and unreasonable under s. of the Charter. The evidence was excluded pursuant to s. 24(2). The infringement was not technical or inadvertent one, nor was it an isolated incident or case of urgency. The fact that the search was made in good faith was irrelevant. Vancise J.A. summarized: [90] To summarize, the factors which support the exclusion of the evidence are that it was obtained in an illegal and unreasonable search of dwelling‑house; the warrant was obtained as result of deliberate course of conduct followed by the R.C.M.P.; good faith can be ruled out; the violation was deliberate and blatant, and not trivial. The factors which support the admission of the evidence include the fact that the evidence was real, it existed notwithstanding the violation of the Charter; it was crucial for the successful prosecution and conviction of the accused; the offence is drug offence; the evidence could have been obtained in any event by the proper obtainment of search warrant. [91] This, in my opinion, is one of those circumstances where the administration of justice could, and indeed will, be brought into disrepute if the evidence is admitted. If the police can violate fundamental rights and freedoms guaranteed by the Charter in order to obtain evidence, the Charter will become meaningless document. Confidence in the administration of justice and respect for the judicial system will be diminished and seriously impaired. The rights and human dignity of the individuals must be respected and protected. In my opinion, the administration of justice will be brought into disrepute if the right to be secure against unlawful search and seizure is seen by the average citizen as being diminished when the police can commit warrantless searches and seizures and only have the evidence excluded when they do something unreasonable in the course of the search. The system of justice will be better served by the exclusion of the evidence. The insistence that there be valid warrant will not hamper or inhibit the police in their investigative function, if they carry out their functions in lawful manner. [39] In the case at bar the search warrant authorized search of the premises of Mr. Taylor and also those of Lisa Taylor. The applicant maintains that Mr. MacIntyre was not completely impartial, neutral and detached as to whether search warrant ought to issue for the home of him and his wife. [40] It is impossible to determine what information Ms. Taylor imparted to Mr. McIntyre when she retained him to act on her behalf with respect to marital difficulties. It is possible that she could have related to him her knowledge of the business and financial affairs of the applicant. Though it was outside the period for which the search warrant was issued, it is possible that Ms. Taylor discussed her husband’s business affairs or his approach in dealing with matters within the purview of the Agency. There is, however, no evidence to suggest the nature of the discussions between Mrs. Taylor and Mr. McIntyre, except that it involved the provision of independent legal advice in respect of mortgage security, and advice and general representation regarding a family dispute or marital difficulties. [41] In the circumstances, would an objective person have reasonable apprehension that the justice of the peace would be biased against Mr. Taylor? The justice of the peace is required to swear an oath whereby he will act impartially in carrying out the duties of his office: see s.6(1) of the Justices of Peace Act. The last time Mr. McIntyre represented Ms. Taylor was approximately five years prior to the issuance of the warrant. This militates against an apprehension of bias by a reasonable person. [42] I am satisfied that a reasonable person, given all of the facts, would not conclude that there was a reasonable apprehension of bias. To paraphrase DeRoches J. in Dunn, am satisfied that Mr. McIntyre would have been capable of disabusing his mind of the previous professional contact with Mrs. Taylor at the time of considering the Application for search warrant. Conclusion [43] For the reasons above, I allow the application to quash the search warrant. [44] If the parties are unable to agree on costs, will ask them to submit their representations within three weeks of the date of the filing of this decision.

The accused applied to quash a search warrant, which authorized the search and seizure of his accounting records for a two-year period. The warrant alleged that the accused, an accountant who ran his business out of his home, filed a fraudulent T4 and created false T4 income in order to obtain a tax refund and misreported HST sales. Although the correct information was contained in the informant's file, there were two errors made in the Information to Obtain the warrant; the Crown argued that the errors were inadvertent and not intended to deceive the Justice and that the things to be searched for had relevance beyond the discrepancies. The applicant also argued that the issuing Justice should have recused himself due to being in a conflict of interest situation from having provided independent legal advice to the applicant's wife in respect of a mortgage transaction approximately seven years ago and later being consulted by the wife when the parties were experiencing marital difficulties. Application to quash the warrant allowed on the basis that there were not reasonable and probable grounds for its issuance; there was no reasonable apprehension of bias on behalf of the Justice. The court drew the inference that the informant would not have pursued the warrant without the undisputed and seriously erroneous information and noted that these errors occurred despite the presence of contrary information in the informant's file. There was no evidence as to what information the wife had imparted to the Justice in their previous encounters; the oath sworn by the Justice and the fact that the last time the Justice represented the wife was approximately five years prior to the issuance of the warrant militated against a reasonable person having an apprehension of bias.

d_2006nssc280.txt

QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2012 SKQB 252 Date: 2012 06 22 Docket: QB 80 of 2012 Judicial Centre: Moose Jaw BETWEEN: ROB GREY and STEPHANIE GREY and KEN STOROZUK and THE DIRECTOR OF RESIDENTIAL TENANCIES Counsel: Norma E. Brunanski for the Appellants Ken Storozuk representing himself JUDGMENT SCHWANN J. June 22, 2012 [1] The tenants, Rob Grey and Stephanie Grey, appeal the decision of a hearing officer under s. 72 of The Residential Tenancies Act, 2006, S.S. 2006, c. R-22.0001 (the Act). They contend the hearing officer, who rendered her decision on May 31, 2012, committed several errors of law and seek to have the matter remitted back for re-hearing. [2] The record on this appeal is comprised of the notice of appeal, the decision of the hearing officer and the hearing officer's file which includes documents filed by the parties along with file endorsements and notes. [3] The basic facts are these. The parties executed one year written residential lease on August 23, 2011. Rent was fixed at $1,100 per month payable on the first of each month. [4] By letter of April 1, 2012 the landlord gave the tenants 30 day notice of eviction for non payment of rent. The tenants were permitted to remain in the premises until the end of May provided they paid the balance owing on the March rent ($100) along with the full monthly rent for May. This notice was followed by subsequent letter of April 16th wherein the landlord demanded an immediate (24 hour) eviction from the premises. No grounds were specified in this letter nor did the tenants vacate the premises. [5] Its not completely clear from the file what, if anything the tenants paid in response to the April letters. Nevertheless, the landlord proceeded with an application for possession claiming rent arrears of $1,200 (May rent plus $100 for April). The tenants were given notice of hearing and the hearing proceeded before hearing officer on May 31, 2012. Both parties attended. [6] Based on the evidence before her, the hearing officer was satisfied the landlord's claim for non-payment of rent had been established and that an order for possession was warranted. The decision provided: "Nevertheless, the Landlord is willing to accommodate the Tenant and it is just and equitable to defer the Order for Possession, but only on the basis that the Tenant honour her commitment to pay the arrears and future rent. In lieu of an immediate Order for Possession, conclude that it is just and equitable to provide that an Order for Possession will issue immediately upon the Tenant failing to make the payments specified herein." [7] The so-called accommodation referred to above was payment of $800 by May 31, 2012 with further payment of $1,500 on or before June 15, 2012. In default of payment an order of possession was to issue. According to the landlord, neither amount was paid. The within appeal was filed before the order for possession issued and it has stayed execution of the order pending appeal. [8] While the tenants do not dispute that rent is owing, they contend an infestation of bed bugs in the residential premises has made it uninhabitable and forced them to incur personal expense to address this problem. Those facts, they submit, should have been considered by the hearing officer in the exercise of her ‘just and equitable’ discretion. Further, as the tenants had filed separate claim under the Act few days prior to the date of the hearing, the two claims should have been heard together they submit. [9] The third ground of appeal failure to properly serve was abandoned on appeal. [10] In Menke Holdings Ltd. Ritchie, 2000 SKQB 168 (CanLII), 197 Sask.R. 81 Batyton, J. made the following observations concerning the role and jurisdiction of this court on appeal: [15] conclude by commenting briefly on the role and jurisdiction of this Court in appeals from the decisions of the Rentalsman. The Act itself is clear that only errors of law or jurisdiction are appealable. As well, the case law limits the court to supervisory role. Reich v. Lohse (1994), 1994 CanLII 4691 (SK CA), 117 D.L.R. (4th) (Sask. C.A.). Section 47(2)(c) of the Act provides the Rentalsman with the discretion to make decisions that he "considers just and equitable in the circumstances". Considerable deference will be extended to the Rentalsman by the court provided this discretion is exercised properly and judicially. McKay v. R.E.V. Ventures, [1997] S.J. No. 94 (Sask. Q.B.); Schoonover v. Caswell (1997), 1997 CanLII 11400 (SK QB), 154 Sask. R. 186 (Sask. Q.B.), Schoonover v. Caswell, 1997 CanLII 11401 (SK QB), [1997] W.W.R. 558 (Sask. Q.B.), Jimmy v. Namerind Housing Corp., 1999 SKQB 12 (CanLII), [1999] S.J. No. 534 (Sask. Q.B.). Menke elaborated upon the “just and equitable” discretion conferred upon hearing officers in adopting this court’s decision in Schoonover v. Caswell (1997), 1997 CanLII 11401 (SK QB), 157 Sask.R. 241 (QB). 16 Klebuc J. in Schoonover v. Caswell, supra, observed that the "just and equitable" provisions enable the Rentalsman to subject the exercise of legal rights to equitable considerations which may make it unjust or inequitable to insist on legal rights or exercise them in particular way. The court must bear this factor in mind when reviewing the legality of decisions and conclusions reached by the Rentalsman. [11] The tenants sought to file affidavit evidence in support of their appeal. As s. 72 appeal is an appeal on the record, affidavit evidence, as general rule, is inadmissible.(Williams v. Elite Property Management Ltd. 2012 SKQB 215 (CanLII), [2012] S.J. No. 345 (QL) at para 16) [12] have reviewed the affidavit of Robert Grey. At least half of it is recitation of facts with the balance consisting of Mr. Grey’s interpretation of how the hearing proceeded and difficulties he encountered advancing argument before the hearing officer. As previously stated, an appeal under s. 72 to this court is an appeal on the record alone based on an alleged error of law or jurisdiction; it is not fresh hearing. For this reason, the portions of his affidavit which are factual in nature and go to his substantive argument (i.e. the existence of and efforts made to combat bed bugs) are not admissible and will be disregarded. The portions, however, which relate to legal error will be taken into consideration. [13] The principal argument advanced by the tenants, put simply, is that in both deciding the merits of the landlord's application and in fashioning an appropriate remedy the hearing officer failed to take into account the alleged bed bug infestation, associated problems and expenses incurred. Subsections 70(6) and (11) are relied upon as sources of equitable discretionary authority available to the hearing officer which should have been considered and appropriately applied. [14] Section 70(6) clothes hearing officer with discretionary authority. The language of the provision is broad and unconstrained which suggests an intention to confer on hearing officers expansive discretionary authority exercisable "having regard to the objects and purposes of the Act and the facts presented in evidence." (Kensington Developments Inc. Huntley 2011 SKQB 386 (CanLII), [2011] S.J. No. 635 (QL); see also Williams) [15] Subsection 70(11) confers similarly worded discretionary authority exercisable where landlord seeks possession of rental unit. It provides: 70 (11) In any application by landlord for possession of rental unit, the tenant may also request an order of relief pursuant to this section and hearing officer may grant that relief if it appears to the hearing officer that: (c) the landlord has contravened provision of the tenancy agreement or has contravened any standard condition; [16] The tenants submit of s.70(11)(c) applies to their situation. They argue the landlord failed to ensure the residential premises were habitable and in so doing contravened the tenancy agreement. Section 70(11) contemplates relief for tenant if warranted on the facts. As observed in Williams at para 27: 27 ... Where notice to end the tenancy has been given as result of the tenant's non‑payment of rent, relief may be given to the tenant if the hearing officer is satisfied that it is just and equitable for such relief to be given. Subsection 70(12)(a) provides that such relief can include relief regarding payment of rent. [17] While there is little doubt the hearing officer has authority to invoke equitable principles and considerations, it does not necessarily follow that they must accede to tenant's position. Clearly, their authority is discretionary, not directory. Nevertheless, "armed with such jurisdiction, it is incumbent upon hearing officers both to consider whether to use it and, if so, to use it in judicial fashion". (Williams, para 28) [18] There is nothing in the decision appealed from to suggest the hearing officer either considered the evidence or argument put forth by the tenants. The decision is wholly silent on such matters. hearing officer, exercising judicial function, has duty to give meaningful reasons for the decision rendered. Gunn J. in Machiskinic v. Chen 2011 SKQB 39 (CanLII), 368 Sask.R. 169 said as follows at para 45: 45 So far as the duty to give reasons extends to setting forth the facts, the tribunal was not required, just as judges are not required, to refer to all of the evidence bearing upon fact in controversy: Woolaston v. Minister of Manpower and Immigration, 1972 CanLII (SCC), [1973] S.C.R. 102, supra. The mere failure to mention particular portion of the evidence, then, does not in itself amount to disregard or oversight. That said, it is commonplace among judicial and quasi‑judicial decision‑makers, whether explicitly or implicitly required to give reasons setting forth the facts and explaining the basis for their decisions, to refer to those portions of the evidence having significant probative value in relation to fact in controversy, particularly those portions with opposing force or weight, for it is here where the case on the facts rises or falls on balance. [Emphasis Added] [19] It is not apparent from the decision appealed from whether the hearing officer considered the tenant's evidence, made findings of fact in that regard or for that matter considered whether equitable jurisdiction should be invoked in the circumstances before her. As such I find the reasons inadequate to allow for meaningful review of the decision and for this reason the matter must be remitted back to the hearing officer for re‑hearing. [20] Having concluded the appeal should succeed for the reasons given, find it unnecessary to determine if the hearing officer erred in not considering the tenant's and the landlord's applications at the same time. The Act addresses powers, procedure, evidentiary issues, and to some extent scheduling, in sections 73-78. Notably, there is nothing in these provisions either prohibiting or requiring the director to schedule multiple applications relating to the same dispute to the same hearing date. To that extent, scheduling appears to be purely administrative function. In any event, the simple fact tenant’s application is not formally before hearing officer at the same time as landlord’s application does not bar hearing officer from either considering the facts put forth by the tenant (provided they relate to the landlord’s dispute) nor to give effect to the tenant’s facts and arguments in rendering decision and formulating an appropriate order. (see s. 70(11)) [21] The appeal is allowed. The decision of the hearing officer is set aside and the matter remitted back to the hearing officer for a re-hearing. J. L.M. SCHWANN

The tenants appealed a decision of a hearing officer under s. 72 of The Residential Tenancies Act. The hearing officer determined that the landlord's claim for non-payment of rent had been established and that an order for possession as warranted. The hearing officer directed that the order of possession would be deferred if the tenant paid the rent that was owing and future rent. The tenants argued that the hearing officer erred in not considering that the premises were infested with bed bugs and the tenants had been forced to incur personal expense to remedy the problem. They sought to adduce new evidence by affidavit on this point at the appeal. HELD: The Court declined to admit the affidavit evidence about bed bugs. However, the matter was remitted to the hearing officer for rehearing because the reasons provided by the hearing officer were deficient. The Court held that it was impossible to tell whether the hearing officer considered the tenants' evidence at the hearing, made findings of fact in that regard or whether equitable jurisdiction should be invoked in this situation. The reasons are inadequate to allow a meaningful review of the decision.

b_2012skqb252.txt

CANADA S.H. No. 63393 PROVINCE OF NOVA SCOTIA IN THE SUPREME COURT OF NOVA SCOTIA TRIAL DIVISION BETWEEN: EDDY GROUP LIMITED, KOHLER INTERNATIONAL LIMITED, S. SORENSEN ELECTRIC COMPANY LIMITED, JOHN CHAPMAN, KENMAN ENTERPRISES LIMITED, E.L. CASEY CONSTRUCTION LIMITED, JAMES HENDERSON, MILLERS' EXCAVATION SERVICES LIMITED, A.J. WALKER SON LIMITED, BELA IRSA and RALPH WELTON and KENNETH BROOKES DECISION HEARD: at Halifax, Nova Scotia, before the Honourable MR. JUSTICE ALLAN P. BOUDREAU, Trial Division on September 19, 20, October 17, 13 and 19, 1990. Final Post trial briefs received November 15, 1990. DECISION: April 10, 1991 COUNSEL: Joel Fichard, Esq., for the plaintiffs Lyle Sutherland, Esq., for the plaintiffs Harry Wrathall, Q.C., for the defendant Stephen Kingston, Esq., for the defendant 1988 S.H. No. 63393 IN THE SUPREME COURT OF NOVA SCOTIA TRIAL DIVISION BETWEEN: EDDY GROUP LIMITED, KOHLER INTERNATIONAL LIMITED, S. SORENSEN ELECTRIC COMPANY LIMITED, JOHN CHAPMAN, KENMAN ENTERPRISES LIMITED, E.L. CASEY CONSTRUCTION LIMITED, JAMES HENDERSON, MILLERS' EXCAVATION SERVICES LIMITED, A.J. WALKER SON LIMITED, BELA IRSA and RALPH WELTON and KENNETH BROOKES DEFENDANT BOUDREAU, J.: Overview of Facts Late in 1985, the defendant, Kenneth Brookes (Mr. Brookes), barrister and solicitor practising in Truro, Nova Scotia, was approached and retained by Mr. Percy Hamilton (Mr. Hamilton) and Mr. Zaki Rafih (Mr. Rafih), two local businessmen who were planning the development of an apartment project in the Truro area known as "Village Park Apartments" (the project). Mr. Brookes was retained to incorporate company, "Z Developments Limited" (Z P) and to act as general legal counsel to and to the project. One of Mr. Brookes' duties as legal counsel to the project was to obtain and disburse funds from mortgage draws or advances from various sources. While performing those duties during late 1936 and early 1987, Mr. Brookes received number of irrevocable letters of direction, which he acknowledged, requiring him to pay the proceeds from mortgage draws or advances in particular manner. In early April of 1987, Mr. Brookes had outstanding acknowledged irrevocable letters of direction for payment of the accounts owing to two mortgage brokers, namely, Colchester Mortgage Company Limited (Colchester) and Dufferin Mortgage Corporation Limited (Dufferin) and the account of the architects, Goguen and Associates Limited (Goguen), as well as an irrevocable and acknowledged letter of direction dated March 9, 1987 and an apparently unacknowledged letter of direction dated March 16, 1987, both the latter providing for the payment of mortgage proceeds upon the signature of certain individuals only. Plaintiffs' Claims The plaintiffs, who were suppliers and creditors to the project, have now sued Mr. Brookes claiming that, in early April of 1987, he disbursed funds contrary to the irrevocable letter of direction dated March 9, 1987. The plaintiffs have also claimed Mr. Brookes was negligent in his written acknowledgement of this latter irrevocable letter of direction and that he broke the undertaking contained in that acknowledgement. The plaintiffs have alleged negligent misrepresentation and in the alternative, breach of undertaking or breach of trust on the part of Mr. Brookes. The basis of the plaintiffs' claim is that they relied on Mr. Brookes' March 11, 1987 written acknowledgement of the irrevocable direction of March 9, 1987 in order to advance further materials and supplies to the project. The plaintiffs further claim Mr. Brookes' failure to comply with this direction in disbursing the April, 1987 mortgage advances resulted in the collapse of the project and caused the losses claimed by the plaintiffs. Issues The plaintiffs have raised number of issues in their claims against Mr. Brookes and these can be summarized as follows: a. Did Mr. Brookes negligently misrepresent his intentions to the plaintiffs in his March 11, 1987 written acknowledgement of the irrevocable direction dated March 9, 1987; b. Did the plaintiffs reasonably rely on Mr. Brookes' March 11, 1987 written acknowledgement, to their detriment; c. Did Mr. Brookes breach his undertaking to the plaintiffs as contained in his written acknowledgment dated March 11, 1987, and, if so, what are the damages flowing as result of the breach; d. If Mr. Brookes is guilty of negligent misrepresentation, as alleged, did such negligent misrepresentation cause the losses claimed by the plaintiffs. There are certain statements or allegations contained in the pleadings and made during the proceedings which could be construed as raising an accusation of deliberate wrongdoing on the part of Mr. Brookes. wish to make it clear at the outset did not find any evidence of deliberate wrongdoing on the part of Mr. Brookes. On the contrary, found Mr. Brookes' conduct throughout his retainer as solicitor for the project to have been one of conscientious solicitor, always attempting to be in strict compliance with the terms of his retainer and endeavouring to avoid any apparent conflicts of interest and to follow the instructions of his clients, subject to any limitations which had been placed upon him through various irrevocable letters of direction. There is no question his job was not an easy one considering the project was financially tight from its very inception. While the plaintiffs' claims have been separately argued with regard to negligent misrepresentation and breach of undertaking, in my respectful opinion, the subsequent issues of knowledge, reliance and causation render it appropriate to consider the various issues raised in the plaintiffs' claim together. Breach of Trust The plaintiffs have also raised an allegation of breach of trust on the part of Mr. Brookes; however, there is no evidence Mr. Brookes was ever in a fiduciary relationship with the plaintiffs, nor was he ever retained by the plaintiffs or purport in any way to act for them or on their behalf. In my respectful opinion the plaintiffs have not established the basis for a claim under breach of trust and cannot succeed on this ground. Any claim under this ground is therefore dismissed. ADDITIONAL FINDINGS OF FACT Letters of Direction During November and December of 1986, provided Mr. Brookes with three irrevocable letters of direction requiring Mr. Brookes to pay the mortgage brokerage and architectural fees of Dufferin and Colchester and Goguen respectively, from the next forthcoming mortgage advance from the mortgagees of the project. These irrevocable letters of direction were acknowledged by Mr. Brookes. The existence of these acknowledged irrevocable letters of direction has never been in dispute: As mentioned previously, the project was financially tight from the very beginning and cash flow was continuously problem. Even before the end of 1986, Dufferin, Colchester and Goguen had, at the request of P, postponed payment of their accounts pursuant to the aforementioned irrevocable letters of direction in order to permit sufficient cash flow to the project to keep the creditors and suppliers temporarily satisfied. During this time, the initial second mortgagee to the project had become dissatisfied with the handling of the project funds by one of the principals of and was withdrawing its support. Moreover the substantial amounts owing to the creditor‑suppliers became of such concern that the suppliers were beginning to doubt the viability of The project and the ultimate payment of their accounts. As result of these developments, Mr. Brookes recommended that retain separate legal counsel to deal with the second mortgagee problem and the creditor‑suppliers to the project and did so, retaining Mr. John MacDougall, Q.C. of the law firm, Burchell, MacDougall and Gruchy. January 8, 1987 Meeting meeting of the creditors to the project and the principals of took place on January 8, 1987. The meeting was chaired by John MacDougall with Gerald Moir, another lawyer in Mr. MacDougall's firm, taking the minutes. Present at the meeting, in addition to Mr. MacDougall and Mr. Moir, were Mr. Goguen, the project architect, Jim Prodger, the project accountant, Mr. Brookes, as well as the following representatives on behalf of certain of the creditors who are also plaintiffs in this action: 1. Mr. Peter Verheuvel, on behalf of Eddy Group Limited 2. Kirk and Sandy Miller, on behalf of Miller's Excavation and Services Limited 3. Donald Legge, on behalf of A. J. Walker and Son, Limited There were also representatives of other creditors present who are not parties to these proceedings and their presence is therefore of no significance to the issues at hand. Mr. Verheuvel and Mr. Legge have maintained that Mr. Brookes was not present at the January 8th meeting but his presence at the meeting is confirmed by Mr. Moir, who took the minutes of the meeting and Mr. Moir has definite recollection of statements made by Mr. Brookes and find Mr. Brookes was in fact present at that meeting. Mr. Moir has testified that, at the beginning of the meeting, Mr. Brookes raised concern regarding prior letters of direction which he had in his files which would impact on any decision reached at that meeting regarding the disbursement of the proceeds from mortgage advances. Mr. Moir clearly recalls the statements being made and that the comments were mainly addressed to Mr. MacDougall who was chairing the meeting and find as fact that the comments were made by Mr. Brookes at the beginning of the meeting. Obviously Mr. Verheuvel and Mr. Legge deny any such statements were made because they did not even recall Mr. Brookes' presence at the meeting. Mr. Moir does not recall that the specific details of these letters of direction were discussed. It appears from the minutes of the January 8th meeting that those present were advised of possible fluctuation in the proceeds of mortgage advances and that the amounts anticipated to be paid to creditors may have to be adjusted as can be seen from para. of the minutes which reads as follows: "1. Due to possible fluctuation in interest deductions, MacAdam's fees and such, the payments may have to be adjusted prorata upwards or downwards." The minutes further indicated an awareness that amounts paid would fluctuate from those listed at the January 8th meeting and para. of those minutes is as follows: "4. When payment is made statement will be circulated among the creditors showing who got what." The creditors obviously had confidence in the ultimate success and viability of the project and para. of the January 8th minutes states as follows: "6. The success of the project depends upon the continued support of suppliers." Obviously not all suppliers had refrained from filing Mechanics' Liens up to this point and New Market Buildings Supplies Limited (New Market) had filed Mechanics' Lien and were represented at the meeting; however, agreement was apparently reached for payment of the New Market lien in due course and the lien did not otherwise disrupt the project. March 1987 Meeting The project continued relatively uninterrupted until early March of 1987 with mortgage draws being received and disbursed by Mr. Brookes, normally in accordance with lists provided by Mr. Prodger, the project accountant, with statements being prepared by Mr. Brookes showing the disbursements made to numerous creditors of the project. Nevertheless, financing continued to be tight and there never appeared to be sufficient monies to go around and on each of these several advances during the period December, 1986 to March, 1987, Mr. Brookes was requested to obtain postponements of the irrevocable letters of direction from Dufferin, Colchester and Goguen in order that these funds may be diverted to other creditors and on each of these occasions Mr. Brookes obtained agreement for the postponements and these were confirmed in writing. By early March of 1987, there was again growing concern on the part of the creditors regarding the viability of the project and the ultimate payment of their accounts. As result of this concern, meeting of the major creditors of was held on March 9, 1987. This meeting was again chaired by Mr. MacDougall and Mr. Brookes was not present nor was he informed of the meeting. Creditors' Committee consisting of Peter Verheuvel, Don Legge and Earl Casey was formed at that meeting. The following are the minutes resulting from the March 9, 1987 meeting: meeting of major creditors of Developments Limited was held on Monday, March 9, 1987. Present: Developments Limited Zack Rafih and Percy Hamilton Goguen Associates Limited Ed Goguen Harris Prodger Business Consultants Jim Prodger and Susan Harris Colchester Mortgage Corporation Alton MacLean Eddy Group Peter Verheuvel and Jim Leefe Casey Concrete Earl Casey Miller's Excavation Services Limited Sandy Miller and Kirk Miller A. J. Walker Sons Don Legge Kenman Enterprises Limited Larry Kennedy The following was decided: 1. Peter Verheuvel, Don Legge, and Earl Casey will meet with Logan Lewis and draft projected expenses to complete the project and analyse the viability of the project. 2. Peter Verheuvel, Don Legge, and Earl Casey will respond to inquires from creditors concerning the project finances. 3. Developments Limited gave direction that all future mortgage draws on the project are to be released only on written direction from three people comprising of one of the three creditors referred to above, one of the two principals of Developments Limited, and one of the two principals of Harris and Prodger Business Consultants. John G. MacDougall" The direction mentioned in para.3 of the above minutes was as follows: IRREVOCABLE DIRECTION TO: Ken Brookes and Burchell, MacDougall and Gruchy You are irrevocably directed to hold all proceeds from mortgage advances on the Village Park Apartments (Z DEVELOPMENTS LTD.) project on Pictou Road, Bible Hill until written direction has been received by you signed by three of the following people: 1. Percy Hamilton or Zaki Rofih (sic) 2. Jim Prodger or Susan Harris 3. Don Legge, Peter Verhuebal(sic) or Earl Casey DATED at Truro, Colchester County, Nova Scotia this 9th day of March, A.D., 1987 DEVELOPMENTS LTD." The above noted irrevocable letter of direction of was sent to Mr. Brookes and he wrote identical letters dated March 11, 1987 to Eddy Group Limited, Casey Concrete, A. J. Walker and Son Limited, Harris and Prodger Business Consultants and Developments Limited acknowledging receipt of the irrevocable direction in the above noted form, copy of which was attached to the letter, whereby he agreed to abide by this direction with respect to all the proceeds from mortgage advances. Copies of these letters were sent to John MacDougall. These letters did not make any mention of the prior irrevocable letters of direction in Mr. Brookes' file with regard to Dufferin, Colchester and Goguen nor did they in any way qualify the meaning of 'all the proceeds'. It is these two omissions which the plaintiffs claim form the bases for Mr. Brookes' negligent misrepresentation. Letter of March 12,1987 to the Creditors Subsequent to the meeting of March 9th and Mr. Brookes's letters of March 11th, letter was prepared by the Creditors' Committee and circulated to the existing creditors attaching copy of the minutes of the March 9th meeting and this letter, dated March 12, 1987, was as follows: March 12, 1987 Re: Developments Village Apartments Dear Creditor; The committee formed out of the creditors meeting of March 9, 1987, find copy of minutes enclosed, have evaluated the project, in as much prepared cost to complete the project with cooperation of Logan Lewis, and we are convinced that the total project is viable. However, it is to be understood that the first building had an overrun and the project at this time has cash flow problem. To keep the project within its budget and to ascertain that everyone gets paid, we have decided to keep the draws from the mortgage companies confined to four or five draws and subsequently monies to pay to the creditors will be available over the next four months. The first draw is contemplated for the end of March and its proceeds will be used to pay off all accounts 60 days and over in full as per prepared list of Harris Prodger, the 30 to 60 day amounts will be paid at 40 per cent. All others will be dealt with from the April draws and we will advise accordingly. Yours truly, Peter Verheuvel Donnie Legge Jim Prodger Earl Casey Zaki Rafih [Emphasis Added]" The letter was signed by all of the persons indicated thereon. It should be noted that the major creditors present at the March 9th meeting were convinced of the viability of the total project as can be seen from the last line of the first paragraph of the March 12, 1987 letter to the creditors. It should also be noted that all of the witnesses who testified on this point were of the impression and understanding that, around the time of the March 9th meeting and the subsequent letters of the next few days, the mortgage advances expected for the end of March would be substantial, approximately $300,000.00. This was confirmed by Mr. Verheuvel, Mr. Goguen and Mr. Brookes. March 13, 1987 Meeting Another meeting took place in the offices of Colchester on March 13, 1987. Present at that meeting were: Mr. Rafih, Mr. Prodger, Mr. Legge, Mr. Goguen, Mr. MacLean of Colchester and Mr. Brookes. The topics of discussion at this meeting were the manner of disbursing mortgage advance of $78,400.00 from Prince Realty Mortgage, the second mortgagee to the project, and the payment of the New Market Lien. As result of this meeting, letter of direction, dated March 13, 1987 was addressed to Mr. Brookes which letter of direction is reproduced following: March 13, 1987 Kenneth J. A. Brookes Barrister Solicitor 538 Prince Street P. O. Box 1846 Truro, Nova Scotia B2N 5Z5 Re: &P Developments,Limited Prince Realty Mortgage Dear Mr. Brookes: With reference to the above mentioned please take this letter as your irrevocable authority to disburse from the $78,400.00 draw held by you in trust as follows: 1) To Britannia Mortgage Corporation Limited $37,500.00 2) To David Curtis in trust for postponement of New Market Building Supply Limited Lien 5,000.00 3) To Developments Limited 35,900.00 Total $78,400.00 Further, take this letter as your irrevocalby (sic) authority to pay the balance of the New Market Building Supplies Lien less holdback to David Curtis, Q.C. In Trust, from the next Draw on the Canada Trustco Mortgages with respect to Lots B‑3, B‑5, and Lot B‑6 on the Pictou Road Project which we anticipate being received by you on your (sic) before the end of March, 1987. DATED AT Truro, this 13th day of March, 1987. Yours very truly, DEVELOPMENTS LIMITED ZAKI RAFIH JIM PRODGER DONNY LEGGE According to Mr. Brookes and Mr. MacLean there was discussion at the March 13th meeting regarding postponements of the irrevocable letters of direction of Dufferin, Colchester and Goguen, and that this was done in the presence of Mr. Legge. Mr. Legge has denied there was any such discussion in his presence; however, the March 13, 1987 handwritten notes of the meeting prepared by Mr. Brookes and Mr. MacLean's subsequent letter of the same date to Mr. Brookes confirmed this was in fact topic of discussion. Both Mr. Brookes and MacLean remember an altercation between Mr. Legge and Mr. MacLean where Mr. MacLean jokingly indicated that he may not postpone his letter of direction with respect to the forthcoming draw whereupon Mr. Legge is reputed to have said words to the effect that Mr. MacLean better postpone or Mr. Legge would beat him up. This was apparently done in joking fashion and this incident was testified to by both Mr. Brookes and Mr. MacLean. find as fact the irrevocable letters of direction of Dufferin, Colchester and Goguen were discussed at this March 13th meeting and that Mr. Legge was fully aware of the same and that Mr. Legge was further aware these letters of direction remained in full force and effect. Moreover, the letter of direction of March 13th reproduced above and signed by the persons authorized pursuant to the March 9th direction, and specifically the last paragraph of the March 13th direction, clearly recognizes the requirement to pay prior liens or encumbrances. March 16, 1987 Letter to Z.& On March 16, 1987 Mr. Legge and Mr. Verheuvel, purporting to act on behalf the Creditors' Committee, sent letter to Mr. Rafih which letter is as follows: March 16, 1987 Mr. Zack Rafih President Developments Ltd. Dear Sir: After having spent considerable time putting together some type of structuring to enable Developments to complete the apartment complex on Pictou Road, the creditor's committee requests that you comply with the following conditions: 1. that Mr. percy Hamilton be advised that under no circumstances will. he be allowed on the project site or to at on behalf of Developments in any capacity until such time as the creditor's committee withdraw this condition or they are no longer involved with the project. 2. that all monies from mortgage draws, insurance claims and rentals be deposited in Development's account at the Imperial Bank of Commerce, Main Branch, Prince Street, Truro, and that signing officers be Mr. Zack Rafih and any of the following Donald Legge, James Prodger or Susan Harris. Please comply with these conditions on or before March 19, 1987. Yours truly, Donald K. Legge Peter Verheavel (sic) Creditor's Committee c.c. Mr. Alton MacLean Mr. Ken Brooks Harris Prodger Accounting Services Mr. Edward Goguen This letter was brought to the attention of Mr. Brookes by way of mailed copy and by Mr. Rafih of and, according to Mr. Brookes, the terms contained therein were accepted by Mr. Rafih and and find as fact that this was the case. The 'net' proceeds of the next draw were in fact dealt with in accordance with the terms of the March 16th letter but shall deal with that draw later in this decision. Mr. MacLean learned of the March 16th letter upon his return from vacation and he testified he was very annoyed because, in his view, Mr. Legge and Mr. Verheuvel had gone against the decisions reached at the March 9th and March 13th meetings and he considered the March 16th letter to be in conflict with those agreements. Mr. MacLean was of the opinion the action taken by way of the March 16th letter would further undermine and jeopardize the project. Mr. Brookes testified that, in his opinion, the March 16th letter to Mr. Rafih superseded the March 9, 1987 letter of direction and, on his client's instruction, states that he acted accordingly thereafter. Obviously the March 16th letter could not nullify the need to pay prior liens or encumbrances before mortgage funds could be disbursed from Mr'. Brookes' trust account and, find that, all parties were aware this was the case. Last Mortgage Draw/Advances on the Project April 3, 1987 On or about April 3, 1987, Mr. Brookes received two mortgage draws for the project totalling net funds of $154,212.44, after deductions of the usual Mechanics' Liens holdback and legal fees by the mortgagees' Halifax solicitor. Upon receipt of these funds, Mr. Brookes contacted Mr. MacLean acting on behalf of Dufferin and Colchester and Mr. Goguen for postponements of their irrevocable letters of direction but they refused. Mr. Brookes then advised of the postponement refusals by Dufferin, Colchester and Goguen. Mr. Brookes then had outstanding the aforementioned three irrevocable letters of direction as well as the letter of March 13, 1987 requiring and authorizing payment of the New Market Lien and the March 16, 1987 letter from Mr. Legge and Mr. Verheuvel to Mr. Rafih. Mr. Brookes then proceeded, on April 6, 1987, with the consent of his clients, P, to disburse the total funds as indicated in the statement following: "April 6, 1987 Statement of Funds Received and Disbursed Funds Disbursed David F, Curtis In Trust CIBC (New Market Lien) 60,916.60 Colchester Mortgage Company Ltd. 9,500.00 Dufferin Mortgage Corporation 5,600.00 Goguen Associates 46,630.42 Brookes Legal Fees 10,605.50 Total Disbursements(sic) $133,252.52 Balance to Developments Limited Harris Prodger Donald Legge Earl Casey Peter Verhuevel 20,959.92 Balance in Trust [Emphasis Added] The cheque for payment of the $20,959.92 balance was actually made payable to Developments Limited, Zaki Rafih, Jim Prodger and Don Legge in accordance with the March 16, 1987 letter to Mr. Rafih. Mr. Brookes testified he followed the same procedure upon receipt of any mortgage draw; namely, that he firstly checked the Registry of Deeds for any liens or any other encumbrances; secondly, he checked his file with regard to irrevocable letters of direction and; thirdly, disbursed the balance of the funds as per his client's instruction or as per any letters of direction applying to the balance of these funds. April 6‑7 1987 Meetings On or about April 6, 1987, some of the representatives of the creditors, notably Mr. Verheuvel and Mr. Legge, had become aware of the mortgage draw received on April 3, 1987 and the fact the disbursements of the funds had left very little money for the creditors to the project. Mr. Goguen testified that Canada Trustco Mortgage Company, the first mortgagee, had, around this time, indicated willingness to inject more money in the project but that the creditors would not attend meeting on this subject. Mr. Legge refused to attend the meeting and said that the other creditors would not attend. Apparently, Mr. Legge was present outside such meeting but would not come into the meeting. Mr. Goguen has testified that, in his opinion, the project was still viable as of April 6, 1987 and this opinion has not be challenged. At least two meetings were held on April 7, 1987 at which were present representatives of the creditors, in particular, Mr. Legge, Mr. Casey and Mr. Verheuvel and Mr. MacLean, Mr. Goguen and John MacIsaac, Q.C., the lawyer retained by the creditors. Mr. Verheuvel has testified that, at the 9:00 a.m. meeting on April 7, 1987, he and other representatives of the creditors were requesting information as to the reason why the mortgage advances totalled only $154,000.00 when in fact some $300,000.00 had been expected. Mr. Verheuvel also testified this information was never received before it was decided to lien the project and accept his evidence as establishing those facts. also accept the fact Mr. Goguen and Mr. MacLean were present at the first meeting on April 7, 1987 and did not mention having been paid the previous day, pursuant to their irrevocable letters of direction. The letter and statement of disbursements of April 6, 1987 prepared by Mr. Brookes were not available at the early April 7th meeting. Mr. Verheuvel testified on cross‑examination that the Creditor's Committee fully believed approximately $300,000.00 would be extent of the end of March draws. Subsequently, on April 7, 1987, the representatives of the creditors apparently met with their solicitor, John Maclsaac, Q.C., whereupon Mr. Maclsaac telephoned Mr. Brookes to confirm the April 3, 1987 draw had in fact been disbursed and the manner in which the funds had been allocated. This latter telephone conversation resulted in the letter of April 7, 1987 from Mr. Maclsaac to Mr. Brookes, copy of which is reproduced below: "April 7, 1987 Mr. Kenneth J. A. Brookes Barrister Solicitor P. O. Box 1846 538 Prince Street Truro, Nova Scotia B2N 5Z5 Dear Mr. Brookes, Developments Bible Hill Project wish to confirm our telephone conversation of approximately twenty minutes ago wherein you informed us that $154,212.44 has been disbursed by you as set out on the attached memorandum. Our clients, Casey Concrete, Eddy Group and A. J. Walker vehemently object to this disbursement. It was agreed that funds would only be disbursed with the approval of three groups including representatives of the creditors. The creditors did not and do not agree with the manner of distribution and demand that all such funds be returned immediately. If not returned our clients will look to all persons including you in your personal capacity as well as the mortgagees. Yours truly, John D. Maclsaac JDM/gmw It appears clear from the above letter, the creditors' solicitor, on their behalf, was objecting to the entire disbursement by Mr. Brookes on April 6, 1987 and was demanding the immediate return of all such funds. There is no indication the creditors or their representatives ascertained the reason the. mortgage draws were less than anticipated or the reason Mr. Brookes felt compelled to disburse the funds as he did on April 6, 1987. It is not apparent from the letter of April 7th that Mr. Maclsaac had any recent information concerning the letters of direction in Mr. Brookes' hands or that he considered the letter of direction from the creditors requiring the New Market Lien to be paid. find the creditors were becoming annoyed by this time, were owed substantial amounts of money and had lost confidence in the project. Without obtaining further information, the creditors decided to lien the project and obviously immediately curtailed the supply of materials to the project. Thereafter, work ceased and, because of this cessation of work, Canada Trustco Mortgage Company, by letter dated April 16, 1987, through their solicitors, Burchell, MacAdam and Hayman, wrote to Mr. Brookes indicating that if work did not resume within ten days, they were demanding payment of the entire amount outstanding under their mortgage. These latter events were the beginning of the end for the project. Reason for mortgage draws of April 3, 1987 being lower than anticipated Mr. Goguen, the project architect, stated that: in his opinion, there were three main factors leading to the lesser mortgage draw than anticipated. He, as well as several other witnesses, testified that severe winter storm had delayed the project but that one of his primary concerns was the delay of the creditors in supplying materials to the project. He indicated Eddy Group Limited was prime offender in this regard while other smaller creditors were being urged to keep supplying the project. In accepting this evidence, do not make any findings as to motives or intentions on the part of Eddy Group Limited. Mr. Goguen also testified that Mr. Lewis had been hired to manage the project and that, in his opinion, Mr. Lewis did not appear to have the same initiative to keep the project moving because he did not have personal financial interest at stake. In Mr. Goguen's opinion, these three factors provided the explanation for the April 3, 1987 draw being considerably less than anticipated but he considered this could be overcome because the weather had improved and that the project was still viable as late as early April, 1987. As stated previously, Mr. Goguen's opinions were not challenged in any way and accept his evidence on these issues. The project ultimately went into foreclosure and bankruptcy with numerous Mechanics' Liens on behalf of the suppliers. significant loss was experienced by the suppliers after payment of their Mechanics' Liens from the holdback funds. Some of those creditors are the present plaintiffs claiming against Mr. Brookes for losses incurred as result of materials supplied to the project. Conclusions on the Issues The Plaintiffs have claimed that Mr. Brookes was negligent in not qualifying his March 11, 1987 letter of aknowledgement of the March 9, 1987 letter of direction by explaining that he had three prior irrevocable letters of direction in favour of Dufferin, Colchester and Goguen. The plaintiffs further claim they had no knowledge of these irrevocable letters of direction or that they continued to be in force and that they relied on Mr. Brookes' letter of March 11th in order to continue advancing supplies to the project and further, that the payment of these irrevocable letters of direction by Mr. Brookes and the deduction of his legal fees contravened his March 11, 1987 undertaking, caused the demise of the project and the resulting losses claimed by the plaintiffs. Firstly, I am not persuaded that the creditors continued to advance supplies to the project on the basis of Mr. Brookes\' letter of March 11, 1987 and, on a balance of probabilities, I find that the suppliers continued advancing to the project because they concluded that the project was still viable. Mr. Goguen had explained to the meetings of creditors on January 8, 1987 and March 9, 1987 that, in his opinion, the project continued to be viable and that all liabilities would ultimately be met. Mr. Veheuvel, in his testimony, admitted that he would not have continued to advance supplies to the project had he not considered it to be viable. Mr. Goguen and Mr. MacLean both had confidence in the viability of the project, Mr. MacLean being the one arranging the financing and Mr. Goguen being the architect. The creditors, through their representative committee, Mr. Verheuvel, Mr. Legge and Mr. Casey, were aware of all the circumstances surrounding the cash flow difficulties of the project and the letter of March 12, 1987 to the creditors signed by Mr. Verheuvel, Mr. Legge, Mr. Prodger, Mr. Casey and Mr. Rafih clearly indicated the creditors, through their committee, were convinced and accepted that the total project was viable, in spite of cost overrun on the first building. In my view, the only reasonable inference which can be drawn from all of the documentary evidence mentioned previously and the testimony of the witnesses is that the suppliers continued to advance materials to the project because, throughout the period January to March 31, 1987, they continued to be convinced of the project's overall viability. They had faith in the analysis of Mr. Goguen and Mr. MacLean who both continued to be convinced of the project's viability, which obviously was contingent upon the continued supply of materials. therefore find that, on balance of probabilities, the plaintiffs have not safisfied me on the issue of reasonable reliance. Moreover, the plaintiff, Miller Excavation Services Limited (Miller) did not supply any materials to the project after Marh 9, 1987. Therefore, there can be no reliance, with regard to Miller, on Mr. Brookes' letter of March 11, 1987. In addition, there is no evidence that several of the plaintiffs, notably Ralph Welton, of Seaboard Painting, S. Sorensen Electric Company Limited and John Chapman, were in any way aware of the‑agreements and letters of direction of March and March 11, 1987 when they supplied labour or materials to the project over the period March 12 to 24, 1987. They simply commenced work in good faith and stopped work when they could not obtain any payment for their services or materials. These latter three plaintiffs were not creditors to the project when the creditors letter of March 12, 1987 was prepared and mailed and there is no evidence that these latter creditors received notice of the same. Therefore, on this basis there can be no reliance by these latter creditors and it is impossible to see how they could have a claim for breach of an undertaking which is not communicated or directed to them before they provided their services or materials. The only plaintiffs who had been provided with Mr. Brookes' letter of March 11, 1987 were Eddy Group Limited, E. L. Casey Construcion Limited (Casey Concrete) and A. J. Walker and Son Limited. Causation of the collapse of the Project The plaintiffs further allege the manner of disbursement of the April 3, 1987 draw by Mr. Brookes, in breach of his letter of March 11, 1987, caused the collapse of project and the resulting loss to the plaintiff suppliers. When one looks at the events surrounding the dates of April and April 7, 1987 and the subsequent filing of Mechanics' Liens by many of the suppliers, it becomes clear the suppliers were still evaluating the viability of the project around those dates. According to Mr. Verheuvel, the creditors were concerned as to the reasons why the April 3, 1937 draws were only fifty percent of what had been expected and, through their solicitor, requested architectural and financial information to evaluate the continued viability of the project. find that the more reasonable inference to be drawn from all of the evidence and the testimony of the witnesses is that, on April 7, 1987 and the few days thereafter, the creditors became very skeptical of the continued viability of the project and decided to discontinue supplies and file Mechanics Liens. The creditors did not, through their solicitor or otherwise, verity any explanation as to why Mr. Brookes had disbursed the funds in the manner that he did on April 6, 1987 and it appears, from the demand of John D. Maclsaac, Q.C., of April 7, 1987, that he was not aware of the prior commitment to pay the New Market Lien of some $60,000.00 and he demanded the return of all funds disbursed by Mr. Brookes. am further persuaded to this conclusion because of the testimony of Mr. Goguen, that the creditors, through Mr. Legge, indicated their unwillingness to meet with the management of Canada Trustco Mortgage Company with view to injecting more funds into the project around the April 6, 1987 date, but were apparently intent on pursuing their own course of action. There is no question the creditors, through their solicitor, Mr. Maclsaac, attempted to obtain and recover the funds disbursed by Mr. Brookes but, in view of the circumstances mentioned previously regarding the creditors' actions, am not satisfied, on balance of probabilities, that Mr. Brookes' disbursement on April 6, 1987 was the cause of the demise of the project. The creditors made their own decisions to discontinue supplies to the project which may still have been viable, as appears to be accepted by the representations indicated on pp. 32 and 33 of the plaintiffs' post trial brief. The evidence does not persuade me that the project ceased to be viable as result of Mr. Brookes' disbursements of April 6, 1987. conclude that the creditors, with their legal and other advisers, made their own decision as to whether to continue supplying or to lien the project. The plaintiffs have failed to satisfy me, on balance of probabilities, of the burden of proof regarding the alleged cause of the demise of the project and the resulting losses to the plaintiffs. Knowledge Breach of Undertaking The plaintiffs have alleged that the March 11, 1987 letter of Mr. Brookes acknowledging the irrevocable direction of March 9. 1987, is clear undertaking to pay 'all' of the proceeds' from mortgage advances in accordance with the March 9th direction and that regardless of the knowledge of the plaintiffs, Mr. Brookes was in breach of that undertaking and is therefore liable for at least the amounts disbursed to Goguen, Dufferin and Colchester and Mr. Brookes on April 6, 1987, totalling $70,059.69. Counsel for the plaintiffs have referred me to the case of Leisure Cedar Homes v. Metcalf Holm, 21 N.S.R. (2d), 703, decision of our Appeal Division, in support of their arguments on this issue. In my respectful view, the case at bar is substantially different than the Leisure case in that, in the Leisure case, the court was faced with three clear documents or letters, all saying the same thing, and no other documents or understandings; whereas, in the instance case, the Court is faced with at least three other documents or letters and various meetings or discussions resulting in those documents. believe the Leisure case recognized the need, in certain factual situations, to consider relevant extrinsic evidence or circumstances to arrive at the proper and correct interpretation or meaning of solicitor's undertaking and what the parties understood that undertaking to be where MacKeigan, C.J.N.S. (as he then was), said the following at page 709: In view of the clear meaning of the documents, it is unnecessary and would be wrong to consider extrinsic evidence as to the practice of the parties on other occasions." In my respectful opinion, in the case at bar, one cannot interpret Mr. Brookes\' letter of March 11, 1987 in the abstract or in a vacuum and one must consider all of the surrounding circumstances, including the knowledge of the plaintiffs, through the Creditors\'Committee and their representatives, the letters of March 12, March 13 and March 16, 1987 and the various meetings resulting in those letters. Otherwise, it is not possible to determine the course of action which Mr. Brookes was required to follow on April 6, 1987. found as fact that Mr. Legge, of the Creditors' Committee, was fully aware of the continued existence of the irrevocable letters of direction to pay the accounts of Goguen, Dufferin and Colchester and that all of the documentation commencing with the January 8, 1987 minutes clearly indicated the fact that legal fees would be deducted from mortgage proceeds and may result in slight fluctuations in net proceeds from mortgage advances. The fact that Mr. Brookes had the irrevocable letters of direction from Goguen, Dufferin and Colchester was brought to the attention of the creditors meeting of January 8, 1987. Mr. Casey, testified, that, if Mr. Legge had any knowledge of existing irrevocable letters of direction for payment of those accounts, then he would have expected Mr. Legge to bring it to his attention. found that Mr. Legge 'clearly had such knowledge and that he clearly knew these documents continued to be in full force and effect on the basis of the meeting and conversation of March 13, 1987. Mr. Legge would not have made the comment he did to Mr. MacLean, jokingly or otherwise, had he not been fully aware of the need for continued postponements. The plaintiffs claim the written direction of March 9, 1987 is clear and unequivocal as is Mr. Brookes' letter of March 11th and that "all proceeds" means just that; however, it must be remembered that, at the same meeting of March 9th, it was recognized and acknowledged that the New Market Mechanics Lien in the amount of some $60,000.00 would have to be paid before any mortgage advances could be disbursed, but this was not indicated in the minutes which were circulated. find that Mr. Legge was well aware of the irrevocable letters of direction held by Mr. Brookes and of their workings. also find that it would have been his responsibility to bring them to Mr. Verheuvel and Mr. Casey's attention, the other two members of the creditors committee. Had he done so, Mr. Verheuvel would also have been aware of the workings of such letters of direction because his company, Eddy Group Limited, had obtained such letter on February 17, 1987 for the payment of $10,000.00 which was. paid on March 2, 1987. The more probable explanation and the one which choose is that, because Mr. MacLean on behalf of Dufferin and Colchester and Mr. Goguen had consistently provided postponement agreements of their letters of direction when requested to do so, everyone, with the possible exception of Mr. Brookes, assumed that they would continue to do so. This is also reflected in the comments of Mr. Legge at the March 13, 1987 meeting referred to above. Moreover, Mr. Earl Casey would also have been familiar with letters of direction as can be seen from Exhibit Number 10, letter of March 12, 1987 to Mr. Brookes signed by Mr. Casey, Mr. Prodger and Mr. Rafih, directing Mr. Brookes to pay $29,000.00 owing to Britannia under its mortgage and $20,000.00 to to handle payroll and subcontract commitments. Moreover, on March 16, 1987 Mr. Legge and Mr. Verheuvel, purporting to act on behalf of the creditors committee, presumably by way of majority because Mr. Casey was not party to that letter, directed Mr. Rafih to follow the instructions contained therein and to comply with the same on or before March 19, 1987. In my opinion, this March 16, 1987 letter to Mr. Rafih was in addition to the March 9, 1937 letter of direction and purported to supersede the same to the extent that all monies from mortgage draws, insurance claims and rentals were to be disbursed in manner different than directed in the March 9th letter. Apparently, the creditors committee was taking matters into their own hands. Mr. Rafih accepted the conditions contained in the March 16, 1987 letter and Mr. Brookes disbursed all of the net monies from the April 3, 1987 mortgage draws in accordance with the March 16th letter. am therefore convinced and find, on balance of probabilities, that the creditors and plaintiffs, through their creditors committee, were fully aware that the meaning of the March 9, 11, and 16, 1937 written directions was that all net proceeds or monies from mortgage draws, after deduction of legal fees, payment of the New Market Lien and dealing with the irrevocable directions of Goguen, Dufferin and Colchester, would be paid in the manner requested by the creditors and the project accountant and as consented to by P. In my view, Mr. Legge, on behalf of the creditors committee, optimistically and mistakenly assumed that Mr. Goguen and Mr. MacLean would continue to be agreeable to the postponement of their irrevocable letters of direction. The plaintiffs have levelled severe criticism at Mr. Goguen and Mr. MacLean for being present at the various creditors meetings when agreements were being made and not indicating any unwillingness on their part to be subject to the directions which were being approved at those meeting; however, Mr. Goguen and Mr. MacLean are not parties or defendants in these proceedings and any accusations or allegations against these two individuals do not assist the plaintiffs in their claim against Mr. Brookes. therefore find that Mr. Brookes acted in strict compliance with all of the letters of direction and undertakings in his file and that the meaning of such undertakings was known to the plaintiffs and that Mr. Brookes acted in conformity therewith and Mr. Brookes did not breach the understood terms of his undertaking of March 11, 1987. Decision On the basis of the findings and conclusion reached, I therefore dismiss all the claims of the plaintiffs against the defendant, with costs. An order will issue accordingly. J. HALIFAX, Nova Scotia April 10, 1991 1988 S.H.No. 63393 IN THE SUPREME COURT OF NOVA SCOTIA TRIAL DIVISION BETWEEN: EDDY GROUP LIMITED, KOHLER INTERNATIONAL LIMITED, S. SORENSEN ELECTRIC COMPANY LIMITED, JOHN CHAPMAN, KENMAN ENTERPRISES LIMITED, E. E. L. CONSTRUCTION LIMITED, JAMES HENDERSON, MILLERS' EXCAVATION SERVICES LIMITED, A.J. WALKER &SON LIMITED, BELA IRSA and RALPH WELTON and KENNETH BROOKES DEFENDANT DECISION OF BOUDREAU,

The defendant lawyer was retained for the purpose of obtaining and disbursing mortgage funds. The plaintiffs, creditors of the defendant's client, sued the defendant for negligent misrepresentation, breach of trust and breach of undertaking. The defendant initially received three irrevocable letters of direction for payment of amounts owing on a construction project. When the project got into financial difficulty the defendant advised his client to seek separate counsel to deal with the creditors - suppliers. At a creditors meeting the defendant advised the creditors' counsel of the initial three letters of direction. The project was considered viable by the creditors and continued, with the defendant obtaining postponements of the three letters of direction. Further creditors' meetings were held, a Creditors' Committee struck, and subsequent letters of direction sent to the defendant by the client and certain creditors. The defendant, in acknowledging a subsequent letter of direction, made no mention of the earlier three letters, nor any explanation of 'all of the proceeds'. One member of the Committee was aware of the initial irrevocable letters of direction. On what was to be the final mortgage draw, the defendant requested and was refused a postponement of the initial three letters. With his client's consent, the defendant disbursed the funds, to pay off the initial three creditors, a mechanics' lien referred in one of the subsequent letters of direction, his legal fees and the balance as per a letter of direction received from two of three members of the Creditors' Committee. Dismissing the action, that (1) there was no negligent misrepresentation as the creditors had continued to advance supplies, not on the basis of the defendant's letter of acknowledgement, but because they considered the project viable. Further, certain other plaintiffs were not aware of the letter, and could not have relied on it. Other plaintiffs did not supply after the letter and therefore did not rely on it. The Court noted that on a balance of probabilities, the defendant's disbursement did not cause the demise of the project. At the time of the disbursement the project was still viable and the plaintiffs made their own decision to cease supplying and to lien the project; (2) there was no breach of trust as the defendant had no fiduciary duty and had at no time acted for the plaintiffs; and (3) there was no breach of undertaking as the undertaking must be considered in all the circumstances, including knowledge of the plaintiffs, the other letters and meetings. The Court concluded that the member of the Creditors' Committee who was aware of the initial irrevocable letters had a duty to advise the other members. The documentation was clear that legal fees would be deducted and the Committee was also aware of the direction to pay the mechanics' lien.

1991canlii4370.txt

IN THE SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: Luke v. Luke, 2007 NSSC 235 Date: 20070803 Docket: 1201-057326 Registry: Halifax Between: Rosamond Hannah N. Luke v. David F. Luke Respondent Judge: The Honourable Justice R. James Williams Heard: March 28 29, April 12, 2007 in Halifax, Nova Scotia Counsel: Joseph M. J. Cooper, Q.C., for the Petitioner B. Lynn Reierson, Q.C., for the Respondent By the Court: [1] The parties before the Court, Rosamond Luke and David Luke, have made frequent appearances in this Court over the past number of years. They each have brought variation applications under the Divorce Act, 1985. Those applications relate primarily (though not exclusively) to the issues of spousal support, child support and access. [2] The parties were married on September 4, 1982 in London, United Kingdom. They had three children: William Luke, born February 8, 1984; April Luke, born April 5, 1988; and Sarah Luke, born September 24, 1993. Ms. Luke has, since before the divorce, lived in Halifax. Mr. Luke works for the United Nations. At the time of or shortly before the divorce, he lived in South Africa. He now lives in Geneva, Switzerland. He has remarried. [3] The Corollary Relief Judgment was granted May 27, 2004. It was amended September 23, 2004. On October 26, 2006 an “Emergency Variation Order” was granted by Justice Gass of this Court. The relevant portions of these orders are outlined in “Appendix I” to this decision. [4] The parties have had ongoing disputes since before the divorce. They are chronicled in other proceedings and the pleadings. do not intend to review the unfortunate history of disputes in this decision. have considered it, however, in coming to the decisions have. APPLICATION TO VARY SPOUSAL SUPPORT [5] The Corollary Relief Judgment (CRJ) of April 2, 2004 provides, at paragraph 8: 8. The Husband shall pay spousal support to the Wife in the amount of $3,100.00 per month beginning on April 1, 2004 and continuing on or before the 1st of each month until the earlier of: (A) Twelve months after the Wife graduates from the M.B.A. program in which she is currently enrolled (graduation no later than May 2005); or (B) Six months after the Wife withdraws from the M.B.A. program in which she is currently enrolled; or (C) The Wife obtains employment. Therefore, on or before June 1, 2006, the Husband’s obligation to provide spousal support to the Wife shall terminate absolutely. [6] Ms. Luke’s Application to Vary was filed September 21, 2006. The spousal support order terminated prior to this date. [7] Section 17(10) of the Divorce Act, 1985 provides: s. 17(10) Notwithstanding subsection (1), where spousal support order provides for support for definite period or until specified event occurs, court may not, on an application instituted after the expiration of the period or the occurance of the event, make variation order for the purpose of resuming that support unless the court is satisfied that (a) variation order is necessary to relieve economic hardship arising from change described in subsection (4.1) that is related to the marriage, and (b) the changed circumstances, had they existed at the time of the making of the spousal support order...would likely have resulted in different order. [8] Section 17(4.1) states: S. 17(4.1) Before the court makes variation order in respect of spousal support order, the court shall satisfy itself that change in the condition, means, needs or other circumstances of either spouse has occurred since the making of the spousal support order...and in making the variation order the court shall take that change into consideration. [9] Section 17(10) of the Divorce Act, 1985 applies to this application to vary spousal support. Ms. Luke states in her affidavit of March 21, 2007: 9(v) ...I respectively submit that spousal support should be extended up to and for one year past my eventual graduation dated October 2006. [10] Ms. Luke graduated with her M.B.A. in October 2006. It had been anticipated that she would graduate in May 2005. [11] Ms. Luke asserts that the following “changes” trigger this application: a. That pursuant to paragraph of the Corollary Relief Judgment spousal support for me was to cease one year after my anticipated graduation from my MBA program in May 2005. That at the time of negotiating the Agreement it was thought that the children would be in Geneva with their father and would be able to spend full time concentrating on my MBA program... (Paragraph 9(a) of her Affidavit of March 21, 2007.) Spousal support appears to have been dealt with in Justice Hood’s decision of April 1, 2004. There is no reference to an agreement indeed Justice Hood stated (at p. 19) “spousal support was one of the most contentious issues between the parties”. Further, the Corollary Relief Judgment provided (by apparent agreement) that the children remain in Ms. Luke’s care (having been placed in her care by the decision of Justice Dellapinna of October 27, 2003 following five-day trial). The assertions in paragraph 9(1) of Ms. Luke’s Affidavit are less than accurate. b. That her health began deteriorating after the CRJ as she was performing the multiple roles of mature student, and day to day parent of the two girls (who were then home) (clause 9(o) of her March 21, 2007 Affidavit). There is no evidence of health problems that would impair her. The order contemplated her parenting the girls she was receiving significant amount of child support. There is no change in circumstances nor change in circumstances related to the marriage demonstrated here. c. That the emotional and financial stress and demands from her M.B.A. program caused her to have focus on the children because their grades were deteriorating, they were depressed and “even one of them was suicidal” (clause 9(p) of her Affidavit). Ms. Luke also indicated that April developed Trichotillomania (a psychological condition that involves strong urges to pull one’s hair) in February 2003. This required special attention with the assistance of the family doctor (clause 9(q) of her Affidavit). Almost no evidence was put forward to indicate the children’s grades deteriorated to any significant degree. Mr. Luke asserted that the children’s grades remained consistent from 2003 through 2005. He indicates he knows nothing of the children being depressed “much less that one was suicidal”. There were no particulars or specifics related to these assertions provided by Ms. Luke. Finally, Mr. Luke asserted in his Affidavit (clause 49(l)): 49(l) April has skin condition that is similar to one my mother has. No credible medical evidence has been presented to the....Court regarding April having medical condition that causes more than minor irritation... cannot conclude from the evidence before me that the children’s grades deteriorated to any significant degree since the divorce. The evidence indicates that these children have been active achievers. cannot conclude from the evidence before me that the children suffered from mental health issues that would impact upon spousal support. [12] Ms. Luke’s academic record from Dalhousie University is filed with the Court. That record indicates the following: In the fall of 2003 Ms. Luke received an in Bus. 5503 Quantitative Decision-Making. All her other marks in the program were A’s and B’s. By the end of the summer of 2005 Ms. Luke had completed all of her course works but one course. In the fall of 2005 she again took Bus. 5503 and received B- grade. This is the only course on her transcript that fall and the last course on her transcript. [13] The divorce took place in April 2004. The spousal support ended in June 2006. [14] have no explanation or rationale before me as to why Ms. Luke appears to have finished her course work in December 2005 (six months before the spousal support order ended) yet did not graduate until October 2006. [15] Ignoring the fall of 2005 (when she took but one course), there seems to be no reason for her not to be employed or actively seeking employment since January of 2006. [16] Ms. Luke filed documents (at Tab 11 of her Exhibit Book) that are referred to as “Rosamond Luke’s Business Development Log”. It (as did her Affidavit) indicated that since September 2006 she has been pursuing the development of project known as AWEDANS (African Woman Empowerment and Development Association of Nova Scotia). She hoped this would result in salaried position for her in the fall of 2007. The log refers to meetings, attending conferences, receptions, presentations and some other largely unrelated activities, including attendances at Court. [17] An application to vary is not an opportunity to appeal or retry the previous proceeding/order. (Chamberlain v. Chamberlain, 2002 Carswell N. B. 33 (NBCA).) am, as understand the law, to treat the existing order as correct (W.C.P. v. C.P. (2005) 2005 BCCA 60 (CanLII), B.C.J. No. 179 (BCCA)) and to vary it only if an applicant can prove material change in circumstances. Before variation may occur section 17(10) requires that the change(s) be related to the marriage, and further that had the change(s) been known at the time of the original order it (they) would have been likely to result in different order. The onus to show that such changes have taken place is on the applicant here, Ms. Luke. [18] Ms. Luke has not met that onus. There is no change in circumstances related to the marriage that would, had it been known at the time of the original order, resulted in different order of spousal support. The Corollary Relief Judgment contemplates the “late” completion of Ms. Luke’s M.B.A. program. It placed the children in her care. There is no significant change in the children’s circumstances. There is no medical evidence of their or Ms. Luke’s having post CRJ condition that impacted on her ability to pursue self-sufficiency. There is no explanation for her graduating ten months after completing her course work. There is no evidence of her seeking employment apart from her pursuing the establishment and funding for AWEDANS. However laudable this proposed organization may be there is no reason for Mr. Luke to fund its establishment. Ms. Luke is responsible for her own choices. [19] The application to vary spousal support is dismissed. APPLICATION TO VARY CHILD SUPPORT [20] The parties have made a series of cross-applications concerning child support. [21] There are three children William (b. February 9, 1984), who is 23; April (b. April 5, 1988), who is 19; and Sarah (b. September 24, 1993), who is approaching 14. The Corollary Relief Judgment (CRJ) provides that they are in the custody of Ms. Luke. [22] The CRJ provides: 4. For the purpose of fixing child support, the Father’s income is found to be $12,759.73 US per month which is an annual income of $153,116.76 US or $203,706.00 Can. (On current conversion rate of 1.3304) based on the financial information before the court at the time of the binding settlement conference in December, 2003. The Father’s income shall not be grossed up pursuant to the Child Support Guidelines s. 19 because there is regular deduction made from the Father’s income by his employer which is akin to an income tax deduction that would be made if the Father were resident and working in Canada. 5. The Father shall pay base guideline child support to the Mother for the three children in the amount of $3,088.20 per month retroactive to December 20, 2003 (pro-rated for December) and payable on the first day of each month until the children are no longer children of the marriage as defined by the Divorce Act. The quantum of child support shall be adjusted annually based on the Father’s annual income for the previous calendar year. On or before January 15th of each year each party shall provide to the other proof of his or her annual income for the previous calendar year. 6. The Father shall pay William’s educational expenses (including the set amount he pays William every month) until William is no longer child of the marriage as defined by the Divorce Act. The requirement for the Father to pay William’s educational expenses is conditional upon William and the administration of the educational institution complying with U.N. policy with respect to ensuring reimbursement for and/or payment of post-secondary education expenses incurred for the benefit of children of U.N. employees. Any reimbursement due from the Father’s employer as result of the payment of William’s education expenses shall be retained by the Father. The Father shall pay the difference between what the U.N. reimburses and what the actual cost is. 7. Armbrae Academy has invoiced the Luke family for the full year of private school fees and expenses for the 2003-2004 academic years. Attached is copy of said invoice. Armbrae Academy’s invoice for 2003-2004 shall be paid 70% by the Father and 30% by the Mother (with the exception of tutoring expenses of $4,000.00 for each child for which he is 100% responsible for). The Father shall be responsible for 100% of the school fees and expenses incurred in South Africa. Armbrae Academy’s fees and expenses shall be paid as they were prior to separation, paid directly to Armbrae Academy’s bank account (particulars attached), according to the U.N. policy of payment for private school fees (i.e., portion of fees for an academic year are paid in advance and the balance of these are paid upon confirmation that the children have been in attendance at the educational institution for the academic year in question). With respect to ensuring reimbursement for and/or payment of private school fees, any shortfall between fees and expenses covered by the U.N. and the total invoice rendered by Armbrae Academy shall be paid by the Father. The requirement for the Father to pay the girl’s Armbrae Academy fees and expenses is conditional upon the Mother and the administration of Armbrae Academy complying with the U.N. policy with respect to ensuring reimbursement for and/or payment of private school expenses incurred for the benefit of the children of U.N. employees. Any reimbursement due from the Father’s employment as result of the payment of private school fees shall be retained by the Father. [23] On October 16, 2006 an “Emergency Variation Order” was granted by Justice Gass of this Court. It provided: 1. David Luke shall pay base guideline child support for the three children of the marriage, based on his current income, in the amount of $3,550.00 beginning on October 1, 2006 and continuing on the 1st of November and the 1st of December, 2006. Child support shall be adjusted according to the formula set out in the Corollary Relief Judgment as of January, 2007. 2. Paragraph of the Corollary Relief Judgment shall also apply to April Luke “in the same manner as it was for William”. 3. decision with respect to William Luke’s status as “child of the marriage” is deferred. Pending decision on that issue, David Luke shall pay to William Luke, as contribution to his post-secondary education 50% of the 1/3 of the table amount of child support payable pursuant to this Order. At the current child support level, this requires payment directly to William Luke in the amount of $592.00 per month and reduces the child support guidelines table amount payable directly to Rosamond Luke to $2,958.00 per month. The appropriate adjustment to the payment to both William Luke and Rosamond Luke shall be made according to the terms of the Corollary Relief Judgment for January, 2007. [24] The Divorce Act, 1985 provides with respect to variation of child support: s.17(1) court of competent jurisdiction may make an order varying, rescinding or suspending, prospectively or retroactively, (a) support order or any provision thereof on application by either or both former spouses; or (3) The court may include in variation order any provision that under this Act could have been included in the order in respect of which the variation order is sought. (4) Before the court makes variation order in respect of child support order, the court shall satisfy itself that change of circumstances as provided for in the applicable guidelines has occurred since the making of the child support order or the last variation order made in respect of that order. (6.1) court making variation order in respect of child support order shall do so in accordance with the applicable guidelines. RETROACTIVE SUPPORT VARIATION [25] claim for retroactive variation of child support (beyond January 1, 2007) was referred to at times but not emphasized or elaborated upon in detail in the evidence. Given the limited evidence before me addressing this issue, the history of this matter and disputes over everything from contact lenses to air fares and Mr. Luke’s payment of a. 75% of the basic education costs of the children through his benefit plan b. the other 25% himself c. monthly allowances (of hundreds of dollars) and “extras” (such as April’s computer) to William and April d. what was believed to be the full table amount for each child to Ms. Luke (even while William, then April were away) conclude that it is not appropriate that there be any variation prior to January 1, 2007. MR. LUKE’S INCOME [26] Mr. Luke’s current income is, according to his March 27, 2007 Statement of Earnings, $205,4770.96. His 2006 earnings were $200,195.00 (U.S.). [27] Ms. Luke disputed his income level in January of 2007 she and Mr. Luke’s counsel went “back and forth” on figures figures that were differing largely based on exchange rates (between the U.S. and Canadian dollars). [28] Additional uncertainty arises from the orders made the “Emergency” Variation Order of October 16, 2006 orders child support table amount of $3,550.00 for three children based on his then current income (which is not recited in the Order) and states that in January 2007 child support would be adjusted as provided by the CRJ. The CRJ provides that each year’s child support be based on last year’s income, not current income. In his submissions, Ms. Luke’s counsel accepted that adjustments based on last year’s income were acceptable. [29] This is situation that requires some certainty. [30] Mr. Luke will pay child support based on his actual income each year. For 2007 his income will be treated as $205,195.00 U.S. subject to the adjustment outlined below. [31] The Bank of Canada posts exchange rates. The closing U.S. exchange rate as of December 31, 2006 was 1.1654 (Bank of Canada www.bankofcanada.ca/en/rates/can_us_close). am taking Judicial Notice of these rates. [32] Mr. Luke shall pay support as follows: [33] For 2007 Mr. Luke will pay child support based on his current salary he will pay table support. (a) In 2007, month to month based on his stated income of $205,470.96 U.S. December 31, 2006 exchange rate of 1.1654 $239,455,85 Cdn. subject to the following adjustment (b) On or before February 15, 2008 he will disclose his actual 2007 income to Ms. Luke. The U.S./Cdn. Exchange will be determined by the average monthly closing rate between U.S. and Canadian currencies for the 12 months in 2007. The 2007 child support payable will be recalculated based on this number. [34] If the result is that he has underpaid he will “top up” support for the year paying that amount to whomever that top up is owed to within two months of February 15. If he has overpaid it will be “clawed back” again, from whomever “owes” him monies over three month payment period. [35] In 2008 Mr. Luke will provide Ms. Luke with his estimate of his 2008 income by January 15, 2008. The exchange conversion will be based on the December 31, 2007 exchange rate. The 2008 child support will be subject to the same exchange adjustment process as outlined above by February 15, 2009. [36] Subsequent years will follow similar pattern. [37] While complicated these are sophisticated parties and the above captures variations (up and down) in both Mr. Luke’s salary and U.S./Cdn. exchange rates and means his child support is based on current income. These are all variables that have been the subject of ongoing disputes between the parties. While complicated, it is fair and as accurate as possible. [38] William is 23 years old. The Emergency Variation Order of October 2006 provides: 3. decision with respect to William Luke’s status as “child of the marriage” is deferred. Pending decision on that issue, David Luke shall pay to William Luke, as contribution to his post-secondary education 50% of the 1/3 of the table amount of child support payable pursuant to this Order. At the current child support level, this requires payment directly to William Luke in the amount of $592.00 per month and reduces the child support guidelines table amount payable directly to Rosamond Luke to $2,958.00 per month. The appropriate adjustment to the payment to both William Luke and Rosamond Luke shall be made according to the terms of the Corollary Relief Judgment for January, 2007. [39] The Corollary Relief Judgment provides: 6. The Father shall pay William’s educational expenses (including the set amount he pays William every month) until William is no longer child of the marriage as defined by the Divorce Act. The requirement for the Father to pay William’s educational expenses is conditional upon William and the administration of the educational institution complying with U.N. policy with respect to ensuring reimbursement for and/or payment of post-secondary education expenses incurred for the benefit of children of U.N. employees. Any reimbursement due from the Father’s employer as result of the payment of William’s education expenses shall be retained by the Father. The Father shall pay the difference between what the U.N. reimburses and what the actual cost is. [40] Ms. Luke asserts that he remains child of the marriage and that Mr. Luke should pay all of William’s university expenses, including travel. [41] Mr. Luke asserts that his son is no longer child of the marriage and that he will support his son, but that the amount and degree of support should be left to them outside the purview of the Court. [42] Mr. Luke receives reimbursement for most educational and post-secondary expenses his children incur through his employer, the United Nations. The benefit extends to undergraduate programs only. [43] William is 23. He graduated from McGill University in July 2006. Mr. Luke paid all his expenses at McGill (including allowances of $800 $1000 per month over and above housing, books, tuition, etc.) most (75%) of which were reimbursed to him as indicated above. In addition, Mr. Luke paid the full table amount of child support for William to Ms. Luke until Justice Gass’ October 2006 order. [44] William’s affidavit of March 2007 indicates: 10. THAT it was my father who encouraged me to attend law school at the University of Leicester in the U.K. That at the time of discussing finances my father indicated and do verily believe that would no longer be eligible for UN support and thus would have to contribute to my educational costs. That it was arranged that would take out $10,000.00 Nova Scotia Government Student Loan to help defray some of the tuition cost and expenses and that would take summer job to help pay for the cost of airfare, and my father would cover the remaining cost of going to school in England. That my father indicated that he would pay further 400 pounds per month for living expenses while was in England. Again, at no time was there any discussion about financial contribution from my mother. 11. THAT pursuant to the arrangements, had obtained summer job at Dugger’s Menswear in Nova Scotia and earn enough money to pay for my airfare to England. As well, am presently looking for part time job in Leicester to help with my expenses during the breaks between semesters as is normal in England. My father in the meantime, indicated that he would cover the balance of the cost from his own pocket and specifically, would designate rent from his home in Pretoria, South Africa, to cover off my educational costs. [45] William, and the other children have been drawn into this, and other legal proceedings between the parties by Ms. Luke. Her actions in this regard have been inappropriate. [46] Mr. Luke states (in his affidavit of March 23, 2007): 13. My contribution to William’s living expenses depended upon his living circumstances at the time (ie. his needs) and upon my other financial obligations. In addition to my monthly support to William, he also received funds on an annual basis from Canadian Scholarship Trust (education savings) Plan that was taken out for him when he was born. These funds amounted to $2,600.00 Can. Per year and were paid directly to William’s account. There were also similar CST plans for April and Sarah, established when each of the children were born. In 2000, Rosamond cancelled the education savings plans with the Canadian Scholarship Trust (CST) Fund had taken out for April and Sarah. The payout was $2,722.87 for April’s plan and $940.89 for Sarah’s plan. By cancelling the plans prematurely, we lost the interest that had been earned. was unaware of what she had done and continued to make monthly provision for payment to these plans until discovered, in June 2002, that Rosamond had cashed them in. Although Rosamond has previously indicated that they were discontinued for non-payment, this is not true. 14. During the summer months during William’s undergraduate degree, he occupied his time as follows: a. 2003 Halifax summer employment b. 2004 Halifax summer employment c. 2005 weeks working on community project in St. Lucia d. 2006 Halifax summer employment plus weeks vacation in Geneva, Lugano and Amsterdam 15. William indicates at paragraph of his Affidavit that “...all my conversations about post graduation studies was carried on between myself and my father without any input from my mother...” and April indicates at paragraph that her mother had no “...input into what university would attend”. Rosamond has been so deeply involved with the children that she calls regularly when they are with me and asks questions about what have fed them during their last few meals in my care. It is inconceivable that Rosamond had no input, in discussions with the children, as to their choices regarding their educational pursuits as she plays dominant role in the children’s lives. 16. With respect to William’s evidence regarding our discussions and the arrangements we made for my contribution to his post-graduate studies in law, say: (a) ... The UN Education Grant scheme for children of UN employees no longer applies to William. As part of the LLB with French programme that William is taking, he is due to spend the third year at Strasburg University in France. This third year of the programme is subsidized by Leicester and Strasburg Universities and anticipate that there will be no tuition fees. (b) .. My commitment to William has not changed since Rosamond has brought her “emergency” application last fall regarding April’s expenses as alleged by William. My new family have not changed my “attitude” as alleged by William at paragraph 22 of his Affidavit. It is true, however, that my ability to continue to provide for the children’s educational needs is being eroded by the cost of enforcing access and defending multiple legal proceedings brought by Rosamond. 17. To date, have provided approximately £5000.00 (Cnd. $10,000.00) to William in addition to expenditures to assist William to settle down at Leicester University. travelled personally to Leicester to help William settle in and visited him in February 2007 to see how he was getting on. 18. William has not lived on regular basis at home with his mother for several years. He has lived at home while working in Halifax for periods of time during summer breaks. have paid base guideline child support for William up to and including the Order of Honourable Justice Gass dated October 16, 2006. William turned 23 years old on February 8, 2007. 19. ask the Court to discontinue any requirement that pay child support to Rosamond Luke for William. also ask this Court to take into consideration when determining the global support issues my commitment to assist William in funding his law school education for the next four years up to $10,000.00 Cnd. per year. [47] William, born February 8, 1984, is 23 over the age of majority. [48] Section 2(1) of the Divorce Act provides: s. 2(1) “child of the marriage” means child of two spouses or former spouses who, at the material time, ... (6) is the age of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life. [49] Mr. Luke’s evidence, the family history of emphasis on education, and William’s career plan and apparent aptitudes lead me to conclude that he remains a “child of the marriage” as defined by the Divorce Act, 1985. [50] There are number of “changes in circumstances” since the CRJ. William is older, more independent. He has been repeatedly drawn into economic disputes between his mother and father. He is no longer eligible for the U.N. education benefit programs referred to in the CRJ. The order made in October 2006 was meant to be temporary. [51] The Child Support Guidelines (s. 3(2)) suggest that support, for child over the age of majority be (if appropriate) determined as if the child is under the age of majority essentially the table amount (as starting point). [52] In my view the future use of the presumptive Guideline approach for William is inappropriate and unsuitable. conclude that having considered the following: (a) do not have details relating to William’s income student loans, summer employment, or if there is any part-time employment while he is in school. The evidence is deficient in this regard. (b) The meaningful communication concerning economic support for William’s education has been almost entirely directly between his father and himself. He is attending university away from his mother’s home in Halifax. He actually resides in her home on an intermittent basis only. (c) For most of the year there is no sharing of common expenses with Ms. Luke. He lives for all intents independently (see N. V. N. 2005 BCCA (CanLII), 2005 Carswell BC 10 (BCCA)). (d) William is well over the age of majority and, seen independent of the conflict between his mother and father, appears responsible. (e) William is enmeshed in and has become player in the conflict between his parents. He has, to significant degree, been drawn into this by the actions his mother. table amount of support paid to his mother will do little more than leave him in the middle of this conflict. [53] The Divorce Act, 1985 provides in part: s. 17(1) court of competent jurisdiction may make an order varying, rescinding or suspending, prospectively or retroactively, (a) support order or any provision thereof on application by either or both former spouses; or (3) The court may include in variation order any provision that under this Act could have been included in the order in respect of which the variation order is sought. (4) Before the court makes variation order in respect of child support order, the court shall satisfy itself that change of circumstances as provided for in the applicable guidelines has occurred since the making of the child support order or the last variation order made in respect of that order. (6) In making variation order, the court shall not take into consideration any conduct that under this Act could not have been considered in making the order in respect of which the variation order is sought. s. 15.1(1) court of competent jurisdiction may, on application by either or both spouses, make an order requiring spouse to pay for the support of any or all children of the marriage. (3) court making an order under subsection (1) or an interim order under subsection (2) shall do so in accordance with the applicable guidelines. [54] What amount of child support is appropriate for William having regard to the condition, means, needs and other circumstances of the child and the financial ability of each spouse to contribute to the support of the child? What conditions should be placed on the order? [55] There are series of factors (including those that have referred to above) that are relevant: have limited information concerning William’s employment, tuition, loans, spending, expenses, etc. Taking her evidence most favourably, Ms. Luke indicates she has contributed very limited monies to his education. She has responsibility to do more in the future. have considered the fact that she has maintained home in Halifax (though she has done so virtually entirely on the back of the child support she has received in the past and provided him some funds for travel). Child support is not spousal support. [56] The CRJ, clause 6, states that Mr. Luke’s responsibility to pay (presumably all) of “William’s educational expenses” is “conditional” upon compliance and eligibility for with the U.N. education reimbursement policies for employees’ children. William no longer qualifies for that benefit. Mr. Luke no longer is obliged to pay all of these expenses. [57] The existing order (that of Justice Gass from October 16, 2006) provided that that 50% ($592) of 1/3 ($1184) of the Table Amount of child support be paid directly to William (subject to the adjustment in January 2007 have outlined in addressing Mr. Luke’s income). This order (with the amount adjusted) will remain in effect to August 31, 2007. [58] conclude that it would be inappropriate to have William’s child support payment made directly to Rosamond Luke. To do so would continue William’s enmeshment in his parents’ conflict. It appears that significant portion of payments of support for William, paid to Ms. Luke are not benefiting William in any but most indirect fashion. The payment should be made directly to William. [59] Beginning September 1, 2007 Mr. Luke’s obligation to pay child support for William will be satisfied by his payment to William, or to third parties (other than his mother) as requested by William of $10,000.00 Cdn. (paid between September 1, 2007 and June 30, 2008). If they do not agree on the payment schedule Mr. Luke will pay William $4000.00 September 15, 2007 and $1000.00 on the 15th day of the following six months. [60] The same arrangement will apply for the 2008 2009 academic year provided William remains in his current program. [61] William will turn 25 in February 2009. Once Mr. Luke satisfies his child support obligation to William for the 2008 2009 academic year William will cease to be child of the marriage as defined by the Divorce Act. His father’s (and mother’s) contribution to his education at that point will not be matter for the Court. have no reason to doubt Mr. Luke’s indication that he would contribute $10,000 to William’s education for two years beyond the order have made if circumstances allow that. have attempted to create some certainty, clarity with this order. [62] am aware that William “may” not have tuition fees in his third year of the program. If he and his father agree in writing to defer portion of his father’s 2008 2009 obligation to the following year, that would in my view, be enforceable by the Court. From the evidence before me would not anticipate that that would be necessary. [63] April turned 19 on April 5, 1988. Both parties acknowledge that she remains “child of the marriage” as defined by the Divorce Act. She is in full time attendance at university in Ottawa. She has finished her first year of university. She is home to her mother’s residence during the summer months, and some holidays. Presumably she does or could work. These are changes in circumstances since the CRJ. [64] Clause of the CRJ provided: 6. The Father shall pay William’s educational expenses (including the set amount he pays William every month) until William is no longer child of the marriage as defined by the Divorce Act. The requirement for the Father to pay William’s educational expenses is conditional upon William and the administration of the educational institution complying with U.N. policy with respect to ensuring reimbursement for and/or payment of post-secondary education expenses incurred for the benefit of children of U.N. employees. Any reimbursement due from the Father’s employer as result of the payment of William’s education expenses shall be retained by the Father. The Father shall pay the difference between what the U.N. reimburses and what the actual cost is. [65] Mr. Luke proposes that this clause apply to April (and Sarah’s) post-secondary education. The U.N. benefit plan reimburses Mr. Luke for 75% of expenses such as tuition, residence, meal plan, books. Mr. Luke asks that the arrangements for payment of post-secondary expenses for April (and Sarah) be as stated in clause of the CRJ. Ms. Luke agrees. The order will be adjusted accordingly. [66] April, like her brother William, has been caught between their parents in their economic disputes. Ms. Luke asks that she receive the “table amount” of support for April, Mr. Luke pay the university expenses referred to in “clause 6" and that Mr. Luke provide April with discretionary allowance of something in the vicinity of $700/month. Mr. Luke has paid the educational expenses and some $400/month in discretionary monies to April. While doing so he paid the full table amount of support to Ms. Luke. He also advanced April $1700.00 in September 2006 to purchase laptop. [67] April Luke’s affidavit of March 2007 provides, in part, 6. THAT based on these assurances have discussed with my father what university should attend and the different expenses involved in each university. That at no time was our mother part of these discussions, nor did she have any input into what university would attend. That from these discussions with my father we decided would attend Carleton University in Ottawa. That subsequent to arriving at the decision to attend Carleton University, my father made all of the arrangements for me to enroll and to pay my tuition. That during these discussions supplied my father with list of my expenses for settling in at Carleton University which he agreed to pay and indicated that he would also provide me additional monies monthly for living expenses, once arrived in Ottawa. 7. THAT upon arriving in Ottawa on or about the 1st of September, 2006, called my father in Geneva to give him my new cell number and to get my spending allowance. At that time my father advised me that he would not be spending any additional money on me other than my tuition and laptop and that he would not be supplying me with any expenses for settling into Ottawa, nor would he be providing me with living allowance on monthly basis, contrary to what he had done for William. That it was my father’s statement that for any money that needed for living expenses and/or for living allowance should be obtained from my mother as he was paying my mother child support. 9. THAT because of my father’s failure to provide me with living expense for September, the first month at Carleton University, had to borrow $400.00 from my brother William, to cover off my living expenses for the month of September. That subsequently, upon further discussions with my father, he did agree to pay $400.00 month for living and incidental expenses however, it does not adequately cover my monthly expenses. 10. THAT also, because of my father’s failure to cover the cost of the initial “settling in” expenses my mother had to pay for the necessary items needed to set up housekeeping in Ottawa, such as towels, bed sheets, blankets, etc., as well, my mother paid for my ticket to Ottawa and as well her return ticket from Ottawa. 11. THAT my present situation is that my father is now paying $400.00 per month to cover my living expenses while in Ottawa however, he has indicated to me that any extra money need beyond the $400.00 will have to come from my mother. Financial contributions from my mother was never discussed during the time the decision was made by myself and my father. That my present monthly financial needs while living in Ottawa are as follows: a. $250.00 necessities: clothing, seasonal footwear, hair treatment/products, personal items b. 65.00 entertainment, church offering c. 90.00 sports, accessories d. $125.00 campus card, laundry, additional food (including weekend meals) e. 50.00 bus tickets f. 75.00 miscellaneous: printing, inkjet, stationary, photocopying TOTAL $655.00 13. THAT during the time am not in residence at university my principle place of residence is with my mother in Halifax, Nova Scotia. That spend most of my summer vacation, Christmas and Easter break, and other school vacations with my mother. The only time do not spend with my mother is during the time am visiting with my father. [68] Mr. Luke proposed that he pay the “clause 6" tuition and claimable expenses for April and that in addition he pay her an allowance being the difference between the table amount of support for two children (April and Sarah) and one child (Sarah) for the months of September to April. He proposes that he pay the one child (Sarah) table amount of support to Ms. Luke for the September April time frame, and the two child amount for May September (being the time when April is home). [69] Using the income amount previously addressed, the table amount of child support (apart from the eligible education benefits) would be as follows: Mr. Luke’s income $239,455.85 Table amount of child support for one child $1205 $644.08 (.0072 $89,455.85, his income over $150,000) $1849.08 for two children $1913 $1001.91 (1.12 $89,455.85, his income over $150,000) [70] The difference between the table amount of support for one child, and two is $1065.83. [71] Mr. Luke states in his affidavit, clause 23(c) 23(c) Paragraphs and 11 of April’s Affidavit deal with the spending money issue. determined that $400.00 per month was sufficient spending money for April through discussions with her and reviewing the Carleton University website. April’s Affidavit confirms that $400.00 per month was adequate spending money while full base guideline support was being paid to Rosamond, in part to pay for April’s clothing, footwear, hair care and personal items. [72] Mr. Luke undoubtedly wants relief from situation where despite his having paid significant amount in table amount of support to Ms. Luke she assumes very limited responsibility for the economic support of April when she is away at school. His assertion that sheets and towels for April might have come from home is reasonable one. [73] His proposal is one that has him pay: a. The 25% of “core” university costs April has that are not covered by his U.N. benefit plan for so long as April and her educational pursuits qualify for that plan. b. The difference in the table amount of support for two children versus one. c. April’s university costs with almost no economic contribution from Ms. Luke or April. d. April some $300 $400/month (over months) more than she states she needs which should be more than reasonable contribution to any travel or other expenses April may have. April and Ms. Luke have some responsibility for such additional expenses. e. Ms. Luke some $4000.00 towards “maintaining home” and providing for April during her time(s) at home (including some contribution to April’s travel). f. Leaves all of April’s earnings or loans (if any) to her discretion. (I have little or no evidence of April’s income). [74] I conclude that Mr. Luke’s proposal should be adopted by the Court effective September 1, 2007. Mr. Luke’s child support payments (apart from the “clause benefits”) for April will be payable as indicated above (effective September 1, 2007) as follows: September 1, 2007 through and including April 1, 2008 $1065.83/month (subject to adjustment in 2008) to April May 1, 2008 August 1, 2008 the appropriate 2008 amount to Rosamond Luke. [75] Until September 1, 2007 the “Emergency Variation Order” (subject to adjustment for Mr. Luke’s income) will remain in effect. [76] Sarah is approaching 14. The table amount of child support payable for Sarah is (subject to adjustment) $1849.08. This amount shall be paid to Ms. Luke from January 2007 forward. [77] Sarah will be entitled to the post-secondary benefits (as available to Mr. Luke) in the same fashion as William and April. [78] Mr. Luke pays Sarah’s expenses at Armbrae Academy (and gets reimbursed for 75% of those expenses) and the Table Amount of support. [79] Clause of the CRJ provides, in part, 7. Armbrae Academy’s fees and expenses shall be paid as they were prior to separation, paid directly to Armbrae Academy’s bank account (particulars attached), according to the U.N. policy of payment for private school fees (i.e., portion of fees for an academic year are paid in advance and the balance of these are paid upon confirmation that the children have been in attendance at the educational institution for the academic year in question). With respect to ensuring reimbursement for and/or payment of private school fees, any shortfall between fees and expenses covered by the U.N. and the total invoice rendered by Armbrae Academy shall be paid by the Father. The requirement for the Father to pay the girl’s Armbrae Academy fees and expenses is conditional upon the Mother and the administration of Armbrae Academy complying with the U.N. policy with respect to ensuring reimbursement for and/or payment of private school expenses incurred for the benefit of the children of U.N. employees. Any reimbursement due from the Father’s employment as result of the payment of private school fees shall be retained by the Father. [80] The parties have disputed the cost of extra-curricular expenses, cost and need for tutoring, and other issues related to Sarah. Ms. Luke’s willingness to involve these children in the minutia of the economic issues between their parents in captured in an e-mail Sarah sent her father from Halifax to Geneva one morning looking for him to replace contact lens she needed for that afternoon’s basketball practice in Halifax. Sarah’s rationale (which conclude was largely influenced by her mother) was that as he bought her contacts for her birthday he should continue to do so. [81] The evidence provided by Ms. Luke with respect to tutoring was scant and suggested that April’s academic issues with French were effort, not ability related. [82] The situation requires stable fixed arrangement with respect to private school, extra-curricular activities, school trips, tutoring, etc. Ms. Luke is receiving some $1849.08/month, $22,188.96/year for Sarah’s care. [83] Mr. Luke complains that tutoring and extra-curricular activities are incurred without his agreement. [84] conclude that all financial arrangements with Armbrae Academy concerning Sarah should be Mr. Luke’s responsibility. He should be the decision maker and contact person for the school on financial issues. Should he decline to pay for an activity or expense at Armbrae he will advise Ms. Luke of that and his reason for doing so. Should she then decide to pay for that activity or specific fee she may do so presumably from the child support she receives. Mr. Luke will remain responsible for the registration and other benefit eligible expenses pursuant to clause of the CRJ. He has indicated that he would pay for minimum of one extracurricular activity at time at Armbrae. would note that while the private school attendance is undoubtedly s.7 CSG “extraordinary expense” there has been little to demonstrate that the extracurricular activities themselves are “extraordinary”. Extra expenses for extra-curricular activities, tutoring, etc., at Armbrae Academy will require his approval and payment by him. Ms. Luke will be financially responsible for any extra-curricular activities or tutoring outside Armbrae Academy. LIFE INSURANCE [85] The CRJ provides at clause 10: 10. Each party shall maintain their current life insurance coverage with the other party as the named beneficiary. For the Wife’s insurance the Husband is to be the beneficiary of 100% of the insurance proceeds until the last child reaches age 25. With respect to the Husband’s insurance, the Husband is to make the Wife the beneficiary of $400,000.00, which is approximately twice his salary. This face amount of insurance may be decreased by $100,000.00 when spousal support is no longer payable and by further $100,000.00 as each child reaches the age of 25 years. The Wife’s policy premiums shall be paid out of the current cash surrender value of her policy (approximately $900.00) until the cash surrender value is exhausted or until she is working and thereafter the premiums shall be paid by the wife). [86] There is no change in circumstance that was not contemplated by the CRJ. Spousal support is not payable. The face amount of insurance now required is $300,000.00. [87] Clause 11 of the CRJ provides: 11. The Husband shall maintain his current medical insurance plan available to him through his employment for the benefit of the children of the marriage. Upon production by the Wife of receipts for medical expenses incurred on behalf of the children, the Husband shall promptly request reimbursement from his employer for the expenses incurred and remit the expense reimbursement provided by his employer directly to the Wife forthwith upon the Husband’s receipt of funds from his employer. The Husband shall pay the difference between the actual cost of medical expenses incurred and the portion of medical expenses which are covered by the Husband’s medical insurance plan until such time as the Wife is employed. Once the Wife is employed, then the parties shall share the additional cost of medical expenses on pro-rate basis. The Court recommends that the children be provided with counselling, up to the maximum cost for counselling available pursuant to the terms of the Husband’s insurance plan. The uninsured portion of counselling expenses are to be paid by the Husband. [88] There have been disputes between the parties. Mr. Luke needs original receipts to make medical claims. would amend this clause to provide that he has no responsibility to pay or contribute to medical expenses unless he receives original receipt/expense documentation from Ms. Luke. [89] The provisions of the Divorce Act, 1985 provide, with respect to variation of custody/access orders: s. 17(1) court of competent jurisdiction may make an order varying, rescinding or suspending, prospectively or retroactively, (b) custody order or any other provision thereof on application by either or both former spouses or by any other person. (3) The court may include in variation order any provision that under this Act could have been included in the order in respect of which the variation order is sought. (5) Before the court makes variation order in respect of custody order, the court shall satisfy itself that there has been change in the condition, means, needs or other circumstances of the child of the marriage occurring since the making of the custody order or the last variation order made in respect of that order, as the case may be, and, in making the variation order, the court shall take into consideration only the best interests of the child as determined by reference to that change. (6) In making variation order, the court shall not take into consideration any conduct that under this Act could not have been considered in making the order in respect of which the variation order is sought. (9) In making variation order varying custody order, the court shall give effect to the principle that child of the marriage should have as much contact with each former spouse as is consistent with the best interests of the child and, for that purpose, where the variation order would grant custody of the child to person who does not currently have custody, the court shall take into consideration the willingness of that person to facilitate such contact. [90] The CRJ provides, with respect to custody and access: 1. The mother shall have custody of the following children of the marriage: William Luke, born February 8, 1984 April Luke, born April 5, 1988 Sarah Luke, born September 24, 1993 2. The children shall reside primarily with the Mother and, in the case of William, because he returns to Halifax as his home for the summer and other school vacations, he is deemed to be residing primarily with the Mother, notwithstanding that he is attending university in Montreal 3. The Father can have access with the children, on 24 hours’ notice to the Mother, when he is in Halifax. The Father shall have the following additional access on the terms as set out herein; (a) Unlimited telephone access; (b) One month each summer, the specific time to be agreed between the parties but, failing agreement, the Father’s one month access shall be for the month of July in 2004 and alternating between July and August each year thereafter; (c) One week during the Christmas school break in 2004, beginning on the day after school finishes for the Christmas break, and in even-numbered years thereafter; (d) One week during March school break, beginning in 2006 on the Saturday at the beginning of the March school break, and in even numbered years thereafter; (e) The Father shall be responsible for the cost of airline tickets for the children to travel to the access location as unaccompanied minors. This provision shall be in place until the youngest child is 14 years old if she is travelling with sibling or other responsible adult and 18 years old if she is travelling alone; (f) The Father shall provide to the Mother copy of the return ticket prior to the children travelling for access; (g) The access may take place at any location where the Father is posted or in an alternate location for family vacation; (h) The Father may request and obtain information regarding the health, education and general well-being of the children, including but not limited to, access to school and medical records and the right to obtain copies of all medical, educational and religious records pertaining to the children directly from third parties; (i) The parents shall make reasonable efforts to share any information regarding the children including information as to health, education, recreational activities and the like; (j) Each parent has the right to authorize emergency medical care and treatment for the children provided, however, that the authorizing parent shall advise the other parent of the treatment required by the child as soon as practicable. [91] Since the granting of the CRJ, William has lived away from home while attending university. He is now 23. April attended university in Ottawa during the last school year. She is now 19 and over the age of majority. They are adults (for the purpose of custody/access order). The CRJ should be amended to delete reference to their being in the custody of either parent. The order will provide that they are in the joint care of their parents. While they will both receive child support conclude from their respective affidavits that it is not in either of their best interests that the Court attempt to structure or manage their relationship with either parent beyond the support orders that have been made. They are adult age. They both filed affidavits in this proceeding. They can be responsible for the management of their relationships with their parents without interference from the Court. The order of custody/access will not refer to either beyond indicating they are in the joint care of their parents. [92] Ms. Luke has at times been difficult and unreasonable when efforts have been made for the children to travel to visit Mr. Luke. [93] Sarah attends private school in Halifax, Armbrae Academy. Their website indicates that their school breaks for the coming year are as follows: December 18, 2007 January 7, 2008 March 7, 2008 March 25, 2008 June 20, 2008 end of August 2008. [94] have considered the provisions of the Divorce Act and the evidence before me, including evidence indicating that there is degree of discomfort between William, April and Sarah and Mr. Luke’s second wife and her children. Ms. Luke asks that Mr. Luke’s access be restricted that it either not be at his home in Geneva or that Mr. Luke’s second wife not be present. am not satisfied that the discomfort described warrants such restriction. Adjustments between first and second families sometimes take time. Mr. Luke should be well aware that were he to tolerate overt acts that made Sarah (or for that matter William or April) unwelcome in his home he would be jeopardizing or potentially impacting on his relationship with his child(ren). All of this said, the evidence indicates that Ms. Luke has all but overtly encouraged the feelings of apprehension and discomfort the children have. Describing some of her e-mail communications about Mr. Luke and his current wife as inappropriate risks understatement. [95] Mr. Luke will have the right have block access with Sarah this coming year: (a) December 27 or 28 to January or 6. The choice of dates will be Mr. Luke’s to give him some flexibility with air fares. He shall advise Ms. Luke of the dates, flights., etc. by September 30, 2007. If he does so it will be Ms. Luke’s responsibility to get Sarah to the airport with the appropriate documentation. (b) 10 days between March and March 24, 2008. The dates are to be chosen by Mr. Luke by December 31, 2007. Again it will be Ms. Luke’s responsibility to get Sarah to the airport with the appropriate documentation. (c) 30 days between June 20, 2008 and August 31, 2008. Again Mr. Luke to pick the dates. He is to advise Ms. Luke by March 31, 2008 of the dates he chooses. Again Ms. Luke will be responsible for Sarah’s transport to the airport. [96] Mr. Luke requested that the requirement that Sarah travel as an unaccompanied minor be removed. It will remain in place (if it is available on the route being travelled) until her 16th birthday if she is travelling alone. If it is not available on the route being travelled, the travel may still occur. [97] Mr. Luke’s block access in future years will be similarly scheduled. see no reason to limit Mr. Luke’s access to either the Christmas break or the March Break. If he has the resources to have Sarah visit with him, then he, and she, should have the opportunity to do so. [98] These provisions will replace clauses 3(b), (c), (d) and the portion of (e) that relates to unaccompanied air travel. OTHER ISSUES [99] Mr. Luke’s counsel’s request for relief included the following: inclusion of prohibition on the mother interfering with the father’s access with the children by encouraging the children to reject the father’s access plans, making plans that overlap with the father’s access plans; inclusion of limit to two calls per week by the mother to the children during their access with the father; inclusion of prohibition on the mother sending emails to the children which criticise the father, his wife, his wife’s children or extended family, as well as prohibition of the mother sending emails to third parties which are derogatory to the father or his family; an order allowing the father to deduct from the child support payable to the mother for the month of June 2007, for the following: (a) parking tickets in the total amount of $415.00; (b) penalty due to Armbrae as result of April’s failure to return book during her final year of school at Armbrae Academy in the amount of $125.00. an order providing that the cost of replacing lost or damaged property is the responsibility of the parent the child is staying with when the incident occurred. [100] The evidence suggests that Ms. Luke has at times been unreasonable in her attempts to interfere with Mr. Luke’s relationships with the children. Interference with access through the making of alternate plans or by encouraging rejection of such plans are not the actions of responsible parent. If flight arrangements are made, and Sarah does not fly (and there is no medical reason confirmed in writing by a doctor for that failure) then:a. Mr. Luke’s block access shall expand one week at the next access period andb. the cost of any penalty from the cancelled or missed flight will be deducted dollar for dollar from the child support payable by Mr. Luke for Sarah - with this clawback spread over two months. This portion of the order is reviewable on application to the Court. make the order concluding that if Ms. Luke fails in her responsibility as custodial parent to have Sarah exercise the access Ms. Luke will be choosing to have part of the child support that is payable diverted to pay such penalty. [101] During Mr. Luke’s access periods Ms. Luke may call Sarah once each days. [102] Prohibitions in circumstances such as these are of limited utility if they cannot be enforced. Many of the e-mails she has sent are inappropriate. Some are overtly manipulative. The discomfort this causes the children is seen in April’s desire to not become involved, to be neutral. The court does not have the means or ability to control Ms. Luke’s e-mails whether to the children or others. [103] Four hundred fifteen dollars worth of parking tickets were placed on the family vehicle post-divorce. The car was registered in Mr. Luke’s name at the time. He was living overseas. This Court has no jurisdiction over parking tickets, no way of telling who got them (Ms. Luke, William or April) and no remedy available. His car. His tickets. [104] April was fined $125.00 for failing to return book during her last year at Armbrae Academy. assume that Mr. Luke has paid this. would make no adjustment to the order arising from this. [105] The matter should not be prolonged by arguments on costs. [106] am constrained in dealing with costs by Ms. Luke’s lack of income. In other circumstances would order significant costs against her. She has had little success in this proceeding. In the circumstances conclude that an award of costs in the amount of $2000.00 is appropriate. The amount will be payable by Ms. Luke to Mr. Luke on or before January 1, 2008. (Her evidence is that she anticipates having job that will pay her $70,000.00 per year in the Fall of 2007). Mr. Luke’s counsel will prepare the order. J. APPENDIX “I” The Corollary Relief Judgment of May 27, 2004 included the following provisions: 2. The children shall reside primarily with the Mother and, in the case of William, because he returns to Halifax as his home for the summer and other school vacations, he is deemed to be residing primarily with the Mother, notwithstanding that he is attending university in Montreal. 3. The Father can have access with the children, on 24 hours’ notice to the Mother, when he is in Halifax. The Father shall have the following additional access on the terms as set out herein; (a) Unlimited telephone access; (b) One month each summer, the specific time to be agreed between the parties but, failing agreement, the Father’s one month access shall be for the month of July in 2004 and alternating between July and August each year thereafter; (c) One week during the Christmas school break in 2004, beginning on the day after school finishes for the Christmas break and in even-numbered years thereafter; (d) One week during March school break, beginning in 2006 on the Saturday at the beginning of the March school break, and in even numbered years thereafter; (e) The Father shall be responsible for the cost of airline tickets for the children to travel to the access location as unaccompanied minors. This provision shall be in place until the youngest child is 14 years old if she is travelling with sibling or other responsible adult and 18 years old if she is travelling alone; (f) The Father shall provide to the Mother copy of the return ticket prior to the children travelling for access; (g) The access may take place at any location where the Father is posted or in an alternate location for family vacation; (h) The Father may request and obtain information regarding the health, education and general well-being of the children, including but not limited to, access to school and medical records and the right to obtain copies of all medical, educational and religious records pertaining to the children directly from third parties. (i) The parents shall make reasonable efforts to share any information regarding the children including information as to health, education, recreational activities and the like; (j) Each parent has the right to authorize emergency medical care and treatment for the children provided, however, that the authorizing parent shall advise the other parent of the treatment required by the child as soon as practicable. 4. For the purpose of fixing child support, the Father’s income is found to be $12,759.73 US per month which is an annual income of $153,116.76 US or $203,706.00 Can. (On current conversion rate of 1.3304) based on the financial information before the court at the time of the binding settlement conference in December, 2003. The Father’s income shall not be grossed up pursuant to the Child Support Guidelines s. 19 because there is regular deduction made from the Father’s income by his employer which is akin to an income tax deduction that would be made if the Father were resident and working in Canada. 5. The Father shall pay base guideline child support to the Mother for the three children in the amount of $3,088.20 per month retroactive to December 20, 2003 (pro-rated for December) and payable on the first day of each month until the children are no longer children of the marriage as defined by the Divorce Act. The quantum of child support shall be adjusted annually based on the Father’s annual income for the previous calendar year. On or before January 15th of each year each party shall provide to the other proof of his or her annual income for the previous calendar year. 6. The Father shall pay William’s educational expenses (including the set amount he pays William every month) until William is no longer child of the marriage as defined by the Divorce Act. The requirement for the Father to pay William’s educational expenses is conditional upon William and the administration of the educational institution complying with U.N. policy with respect to ensuring reimbursement for and/or payment of post-secondary education expenses incurred for the benefit of children of U.N. employees. Any reimbursement due from the Father’s employer as result of the payment of William’s education expenses shall be retained by the Father. The Father shall pay the difference between what the U.N. reimburses and what the actual cost is. 7. Armbrae Academy has invoiced the Luke family for the full year of private school fees and expenses for the 2003-2004 academic years. Attached is copy of said invoice. Armbrae Academy’s invoice for 2003-2004 shall be paid 70% by the Father and 30% by the Mother (with the exception of tutoring expenses of $4,000.00 for each child for which he is 100% responsible for). The Father shall be responsible for 100% of the school fees and expenses incurred in South Africa. Armbrae Academy’s fees and expenses shall be paid as they were prior to separation, paid directly to Armbrae Academy’s bank account (particulars attached), according to the U.N. policy of payment for private school fees (i.e. portion of fees for an academic year are paid in advance and the balance of these are paid upon confirmation that the children have been in attendance at the educational institution for the academic year in question). With respect to ensuring reimbursement for and/or payment of private school fees, any shortfall between fees and expenses covered by the U.N. and the total invoice rendered by Armbrae Academy shall be paid by the Father. The requirement for the Father to pay the girl’s Armbrae Academy fees and expenses is conditional upon the Mother and the administration of Armbrae Academy complying with the U.N. policy with respect to ensuring reimbursement for and/or payment of private school expenses incurred for the benefit of the children of U.N. employees. Any reimbursement due from the Father’s employment as result of the payment of private school fees shall be retained by the Father. 8. The Husband shall pay spousal support to the Wife in the amount of $3,100.00 per month beginning on April 1, 2004 and continuing on or before the 1st of each month until the earlier of: (a) Twelve months after the Wife graduates from the MBA program in which she is current enrolled (graduation no later than May, 2005); or (b) Six months after the Wife withdraws from the MBA program in which she is currently enrolled; or (c) The Wife obtains employment. Therefore, on or before June 1, 2006, the Husband’s obligation to provide spousal support to the Wife shall terminate absolutely. 9. Pending the sale of the matrimonial home, the Husband shall pay portion of the spousal support provided for in this Order by way of the following monthly third party payments: (a) Mortgage and taxes $919.00; (b) Condo fees and reserve fund $245.00; (c) House insurance $23.33. 12. The matrimonial home located at 79 Attenborough Court, Halifax, Nova Scotia, shall be sold as soon as practicable and the proceeds of sale, after payment of closing costs, shall be divided equally. The Supreme Court (Family Division) retains jurisdiction with respect to the administration of the sale of the matrimonial home should the parties be unable to resolve dispute regarding matters such as, but not limited to, the listing price, the sale price, and appropriate deductions from the proceeds of sale. 13. Out of the Husband’s share of the proceeds of the sale of the home, the Wife shall receive $10,000.00 lump sum spousal support as the Husband’s contribution to the Wife’s past and future education costs. 16. The Husband shall pay to the Wife forthwith the sum of $2,411.63 calculated as follows: $2,525.49 (arrears of car insurance) less $2,100.00 (condo fees paid) Totalling net arrears of $425.49 Plus $2,700.00 (one-half of the US dollar G.I.C.) less $713.86 (balance of mutual funds) Equalling $2,411.63 17. The Husband owes the Wife for retroactive child support the total sum of $13,448.65 calculated as follows: $1,095.81 (11 days in December) $3,088.20 (January) $3,088.20 (February) $3,088.20 (March) $3,088.20 (April) Total $13,448.65 23. The Husband’s employment pension with the U.N. accumulated from the date of marriage to the date of separation (September 4, 1982 to and including October 21, 2002) shall be divided equally between the parties at source. Either party shall be at liberty to apply to Court of competent jurisdiction for an Order for further direction should difficulties occur with respect to the interpretation or implementation of the pension division set out in this paragraph. Shortly after the Corollary Relief Judgment issued Consent Variation Order dated September 23, 2004, was agreed to. It provided: 1. The Corollary Relief Judgement dated May 27, 2004, paragraphs 9, 12, 13, 16, 17 and 23 are hereby rescinded and replaced with the following: 12. The Husband shall convey by quit claim deed all of his interest in the Matrimonial Home located at 79 Attenborough Court, Halifax, Nova Scotia. 13. In partial exchange for the conveyance provided for in paragraph 12 above, the Wife shall immediately have the Husband removed from the covenants on the mortgage and shall indemnify the Husband from any liability, past, present or future, with respect to the mortgage, condo fees and household accounts. 16. The Husband’s obligations pursuant to the Corollary Relief Judgement paragraphs 13, 15, 16, 17 and 23, and the Wife’s obligations pursuant to the Corollary Relief Judgement paragraph 14, shall be deemed satisfied by the Husband’s conveyance of title to the matrimonial home to the Wife and the Wife’s assumption of the mortgage, condo fees and other household accounts. Neither party shall apply for division of the Husband’s employment pension with the U.N. pursuant to paragraph 23 of the Corollary Relief Judgement dated May 27, 2004. On October 16, 2006, an Emergency Variation Order was granted by Justice Gass of this Court. It provided: 1. David Luke shall pay base guideline child support for the three children of the marriage, based on his current income, in the amount of $3,550.00 beginning on October 1, 2006 and continuing on the 1st of November and the 1st of December, 2006. Child support shall be adjusted according to the formula set out in the Corollary Relief Judgment as of January, 2007. 2. Paragraph of the Corollary Relief Judgment shall also apply to April Luke “in the same manner as it was for William”. 3. decision with respect to William Luke’s status as “child of the marriage” is deferred. Pending decision on that issue, David Luke shall pay to William Luke, as contribution to his post-secondary education 50% of the 1/3 of the table amount of child support payable pursuant to this Order. At the current child support level, this requires payment directly to William Luke in the amount of $592.00 per month and reduces the child support guidelines table amount payable directly to Rosamond Luke to $2,958.00 per month. The appropriate adjustment to the payment to both William Luke and Rosamond Luke shall be made according to the terms of the Corollary Relief Judgment for January, 2007. 4. This Order is subject to further order of this Honourable Court or Court of competent jurisdiction.

The parties, divorced, had children, aged 23, 19, and 14 years, respectively. The wife applied to vary the Corollary Relief Judgment (CRJ) following the termination of spousal support. The termination had occurred pursuant to the terms of the CRJ which provided that support would terminate either twelve months after her graduation from the M.B.A. program in which she was enrolled, six months after she withdrew from the program, or when she found employment. The wife had graduated from the program later than expected and a further six months after her course work was completed. Both parties applied to vary child support. The oldest child had completed his first university degree and was currently attending law school. Pursuant to the father's employment, until the completion of their first degree, the children qualified for a program which reimbursed the father for 75 per cent of the child's educational expenses. The CRJ had provided that the father's responsibility to pay all of the oldest child's educational expenses was conditional upon compliance and eligibility for the education reimbursement policies. The middle child was attending university and lived in the wife's home over the summer months. Spousal support application denied; given the family history of an emphasis on education and the oldest child's career plans and apparent aptitudes, he remained a child of the marriage; the father is to pay $10,000 per year directly to the oldest child for the next two years. The father will pay 25 per cent of the core university costs which are not covered by the plan for the middle child as well as the difference in the Table amount of support for two children versus one child; the father shall pay the Table amount of support for one child to the wife for the youngest child as well as that child's expenses for private school; the wife will be responsible for any extra-curricular activities or tutoring outside the private school; the youngest child will be entitled to the same post-secondary benefits in the same fashion as the two older children; the CRJ is amended to provide that the two oldest children are in the joint care of their parents and will not include any other reference to custody or access; the husband is entitled to specified block access with the youngest child; if flight arrangements are made for this child and she does not fly (and there is no medical reason confirmed in writing by a doctor for that failure), the husband's block access shall be expanded for one week at the next access period and the cost of any penalty from the missed flight will be deducted dollar for dollar from the child support payable by the husband.

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A.D. 1997 No. 443 J.C.S. IN THE QUEEN‘S BENCH (FAMILY LAW DIVISION) JUDICIAL CENTRE OF SASKATOON RESPONDENT T.E. Forsyth for the petitioner G.W. Crookshanks for the respondent JUDGMENT M-E. WRIGHT J. January 18, 1999 [1] The petitioner, [K.O.], and the respondent, [C.O.], married on November 14, 1987 and separated for the final time on November 4, 1995. They have four children, [J.M.O.], born […], 1985, [A.S.O.], born […], 1987, [A.J.O.], born […], 1988, and [N.R.O.], born […], 1991. [2] The primary issue between the parties is custody of their four children. Ancillary to and dependent upon determination of the custody issue, is the quantum of child support that will be payable by either party. Matrimonial property owned by the parties at the time of separation has largely been divided between them to their mutual satisfaction, with the exception of few items to be dealt with by way of court order. Both parties agreed that the application for dissolution of the marriage proceed pursuant to the counter-petition. The evidence demonstrated breakdown of the marriage as established by s. 8(2)(a) of the Divorce Act, R.S.C. 1985, c. (2nd Supp.). [3] [K.O.] and [C.O.] met in October, 1986, while both were residing in North Battleford. [K.O.] was working at financial institution which had employed him in various Saskatchewan localities since 1979. [C.O.] had one child at the time, [J.M.O.], who was some 20 months old. [4] In December, 1986, [K.O.] and [C.O.] became engaged. They were living in common-law relationship by February of 1987. [A.S.O.] was born in […] of that year and the parties married in November. In the following year [A.J.O.] was born and [K.O.] adopted [J.M.O.]. [5] Due to the nature of [K.O.]‘s employment, the early years of the marriage were occasioned by several moves. Shortly prior to their marriage, [K.O.] was transferred from North Battleford to Rockglen. In 1988 he was again transferred, this time to Leader. That was followed by move to Meadow Lake. It was while living in Meadow Lake that [N.R.O.] was born in 1991. In July, 1992 the family moved to Prince Albert. [6] It was after the move to Prince Albert that the parties‘ relationship became strained and the marriage began to deteriorate. [C.O.] found her life stressful. [K.O.] was working and she was at home with four small children. [C.O.] developed new friendships and began leaving the home three or four evenings each week, often staying out until the early morning. By her own admission, [C.O.] relied too heavily on alcohol. [K.O.] felt as though he had two full-time jobs—one to earn the family income and the other to maintain the family and household while at home. [7] The first separation occurred on October 27, 1993 when [K.O.] learned that [C.O.] had been concealing unpaid bills. When [K.O.] returned home later that day he discovered [C.O.] and [N.R.O.] gone. The school advised [K.O.] that the three older children were absent that day due to “family illness”. [8] On October 28, 1993, [K.O.] obtained an ex parte order granting him custody of the children. On November 23, 1993, he obtained an order for interim custody and exclusive possession of the matrimonial home. [C.O.] was awarded reasonable access on reasonable notice. [9] [C.O.] and [K.O.] reconciled in February, 1994. By all accounts, things went well between them until the summer of 1995. By then, according to [K.O.], [C.O.] began again to spend considerable time away from the home. [K.O.] and [C.O.] separated in November. On this occasion [K.O.] left the matrimonial home and obtained an apartment for December 1, 1995. He exercised access to the children minimum of every second weekend and overnight each Tuesday and Wednesday evening. [10] In May, 1996, the parties entered into an interim separation agreement. It was agreed that [K.O.] and [C.O.] would have joint custody of the children who would reside with [C.O.]. [K.O.] would have access every second weekend, overnight access during the week, alternate school vacations, and one month each summer. [K.O.] agreed to pay child support in the amount of $693.80 per month by way of payment of certain marital debts and household expenses. On an interim basis, [C.O.] was to continue to enjoy possession of the matrimonial home. [11] Following execution of the interim agreement, [K.O.] continued to exercise access as he had done since the separation as well as additional evenings when [C.O.] had other plans. This arrangement worked well. [K.O.] and [C.O.] were able to communicate and co-operate with respect to planning for the children. They were successfully co-parenting. In August, 1996, [K.O.] was transferred to Saskatoon. [K.O.]‘s weekday access was by necessity reduced. He continued to have the children with him every second weekend and travelled to Prince Albert regularly to attend the children‘s activities. When the children were not with him, [K.O.] telephoned them every Wednesday and Sunday evening. [12] [C.O.] relocated to Saskatoon with the children in April, 1997. Her reasons for doing so in the middle of the school year could not be explained by [C.O.], who acknowledged that [J.M.O.] was not doing well in school. Despite there being no urgency to move at that time, [C.O.] denied that the move was in any way related to new relationship she had formed. [13] Unfortunately, with both parties residing in Saskatoon, their relationship, co-operation and communication with each other deteriorated. This had detrimental impact on their ability to effectively co-parent the children. [K.O.] had begun dating [L.K.], herself the mother of two children, then aged and 5. [14] Since September, 1997, [K.O.] and [L.K.] have been living in common-law relationship and residing in duplex that [L.K.] has lived in for the past four and one-half years. When all six children are in their care, [A.S.O.] and [L.K.]‘s daughter share bedroom, [J.M.O.] and [N.R.O.] share basement bedroom, [A.J.O.] sleeps in the downstairs family room and [L.K.]‘s son has separate bedroom on the main floor. Both [K.O.] and [L.K.] view their relationship as long-term. [K.O.] intends to remain in his present employment in Saskatoon. [15] [C.O.] has resented [L.K.] having any contact with her children and took steps to limit and restrict [K.O.]‘s access, including an attempt to illicit support from professionals for her position that the children should have no contact with any present or future girlfriend that [K.O.] may have. By the time of trial, [C.O.] had still refused to meet or speak with [L.K.]. Even so, she maintained at trial an unsubstantiated belief that [L.K.] was “not fit” to care for the children. [16] [C.O.] has now also formed new relationship. She and [G.P.] met in September, 1997. [G.P.] resides in Clareshorn, Alberta, approximately one hour south of Calgary. He has four-year-old son who resides in Calgary and with whom [G.P.] exercises regular access. [G.P.] and [C.O.] see each other approximately two times each month, either in Clareshorn or Saskatoon. [17] By December, 1997, [C.O.] and [G.P.] were engaged. At that point, [G.P.] had met [C.O.] and [K.O.]‘s children on only two occasions, once for brief visit shortly after he and [C.O.] met and for one weekend in December. [C.O.] and the children then spent eight days in Clareshorn at Easter, 1998. The fourth time [G.P.] had contact with the children was at the time of the trial in this proceeding. [18] Although [C.O.]‘s intentions in January, 1998 were to marry [G.P.] in August, 1998, those plans were modified by trial to marriage date sometime in the future. She and the children would then move to Clareshorn, Alberta. By the time of trial, [C.O.] had been to Alberta to visit [G.P.] on four occasions, and he had come to Saskatoon on six occasions. THE CHILDREN [19] [J.M.O.] is now 13 years of age and attending Q.[…] School. Following her move from Prince Albert to Saskatoon in 1997, her academic performance improved and she successfully completed her year. According to [K.O.], [J.M.O.]‘s marks continue to improve. [20] While she was still living in Prince Albert, it was determined that [A.S.O.] was learning disabled and required specialized attention. Yvonne Beuker, special needs resource teacher at H.[…] School testified that [A.S.O.] has been in her integrated special needs program since August, 1997. According to Ms. Beuker, [A.S.O.] will require specialized training throughout her schooling including modified high school program. Without this specialized program, [A.S.O.] would struggle in the regular classroom setting. [21] [N.R.O.] too has special needs. Since the fall of 1997 she has attended Q.[…] School only in the afternoons. Each morning she is bused to W.[…] school for specialized speech therapy program. Her teacher at W.[…] school, Krista Ford, is also speech language pathologist. According to Ms. Ford, children remain in program such as this for year or more, depending upon the child. Left unremedied, the language difficulties encountered at present by [N.R.O.] often result in negative social and academic consequences. [N.R.O.] is making good progress in the program and is highly motivated. [22] No evidence was presented that [A.J.O.] is not doing well academically and socially. However, an unfortunate incident occurred in the summer of 1997 when the children were in [K.O.]‘s care. [J.M.O.] discovered [A.J.O.] and [L.K.]‘s son engaged in sexually inappropriate conduct. On the advice of an individual at MacNeill Clinic, the incident was reported to the Department of Social Services and then to the police. [23] The investigation by the Department and the police did not lead to any charges or any recommendations other than that both children receive counselling. Notwithstanding this outcome, [C.O.] used this incident to deny [K.O.] overnight access during the week, but continued to allow weekend access. She went so far in her efforts to support her denial of this access that she intentionally misrepresented the position of the Department of Social Services by suggesting that it was the Department that recommended that the children should not overnight with [L.K.]‘s children. This misrepresentation led to strongly-worded letter from the Department of Social Services refuting [C.O.]‘s position. THE PROFESSIONALS [24] Eunice Koehler, family counsellor, testified with respect to her involvement with the [O.] family. She was first contacted by [C.O.] regarding parenting issues, and concern that [A.S.O.] was quiet and withdrawn. [C.O.] was also seeking advice as result of learning of [K.O.]‘s new relationship with [L.K.]. Ms. Koehler met on approximately six occasions with [C.O.] and [A.S.O.], once with [K.O.] and [A.S.O.], and once with the entire family. She spoke to each child alone on one occasion. [25] At no time did Ms. Koehler advise [C.O.] that the children should not have contact with [L.K.], an issue that was regularly raised by [C.O.]. [C.O.] however incorrectly represented to [K.O.] and others that it was Ms. Koehler‘s position that such contact should be restricted, again in an attempt to effectively limit [K.O.]‘s access to the children due to his relationship with [L.K.]. [26] Ms. Koehler‘s observations of and communications with [C.O.] caused her to be concerned about [C.O.]‘s negativity towards [K.O.] and even more so towards [L.K.]. This negativity was having an adverse impact on the children who Ms. Koehler believed to be caught in the middle of the conflict. All children were very protective of their mother and worried about her while in their father‘s care. They all spoke highly of [L.K.], with the exception of [N.R.O.], who indicated that [L.K.] sometimes yells. Overall, Ms. Koehler felt that Kerry had more stabilizing effect on the children. more disciplined environment in his home offered routine that provided security and stability to the children. [27] Although her involvement with members of the [O.] family, other than [C.O.] and [A.S.O.], was limited, Ms. Koehler‘s impression that [K.O.] has stabilizing effect on the children was confirmed by the report and testimony of Gloria Martens, B.S.W., R.S.W. [28] Ms. Martens completed custody and access assessment dated January 19, 1998. Her report was entered as an exhibit at trial and she testified as Court witness. In preparing her report Ms. Martins conducted home, office and telephone interviews with both parents. She observed the children in both homes. She also conducted extensive interviews with relatives, references, teachers and other professionals involved with the children. [29] Her recommendations included that [K.O.] and [C.O.] continue to share joint custody of the children and that the children alternate between the two residences every two weeks. School vacations should be shared or alternated. In her testimony, Ms. Martens stressed that the most important consideration for the children at this time was to have stability in their lives. Ms. Martens was aware when making her recommendation that [C.O.]‘s future plans may include move away from Saskatoon. [30] In her visit to [C.O.]‘s home, Ms. Martens observed that the children‘s affection towards their mother was sound. The same observation was made about the children‘s relationship with [K.O.] and [L.K.] during the visit to that home. Ms. Martens did not observe any preferential treatment as between [K.O.]‘s children and [L.K.]‘s children. It was evident to Ms. Martens that the children were happy at [K.O.]‘s home. They were open and forthright about their father during the home visit, marked contrast from the office visit where they were guarded in any such comments. [31] continuing concern of Ms. Martens was the negative influence that [C.O.]‘s attitude towards [K.O.] and [L.K.] has on the children. During her office visit with [J.M.O.], [J.M.O.] questioned Ms. Martens regarding the trial and was pre-occupied with what should be adult issues. Again, at the home visit, [C.O.] raised matters in the presence of the children regarding their father‘s home which, according to Ms. Martens, promoted negative attitude towards their father. It was clear to Ms. Martens that the children were aware of the purpose of her involvement with them and aware of the dispute between their parents. [32] According to Ms. Martens, all children are now doing well. [A.S.O.] in particular however has special needs that require consistency and stability to ensure that she does not regress. It is in their father‘s home that the children have the most stability and where they receive the most structure and support in their educational endeavours. The children are however bonded to their mother, leading to Ms. Martens‘ recommendation that the children spend equal time in each of their parent‘s homes. While there would be disruption at the commencement of their stay at one parent‘s home, that disruption would occur only once every two weeks. [33] In considering an application for custody, the relevant provisions of the Divorce Act, are: 16.(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. (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. [34] Each of [C.O.] and [K.O.] have strengths and weaknesses in their respective roles as parents to [J.M.O.], [A.S.O.], [A.J.O.] and [N.R.O.]. They each have the necessary knowledge, skill and ability to parent these children. Both have acted as primary custodial parent, at different times, since their first separation in 1993. They have in the past co-operated with one another, notwithstanding their own marital discord, to the extent that they were able to effectively co-parent the children. [35] [K.O.] agrees with the recommendations of Ms. Martens. [C.O.] does not, although she does agree that she and [K.O.] should retain joint custody. She candidly acknowledged her belief that once this ongoing litigation is concluded the animosity between herself and [K.O.] would diminish and they would be able to effectively co-parent. She wishes however to have the children reside primarily with her and visit with their father only on alternate weekends and one or two evenings each week, as well as holiday time. [36] Apart from her obvious distain for [K.O.]‘s new relationship, [C.O.] raised no significant concerns regarding [K.O.]‘s parenting abilities nor any compelling reason why the children should reside primarily with her. There is no doubt in my view, that her predominant motivation in advancing this position is her wish to ultimately relocate to Alberta to marry [G.P.], and to limit the children‘s contact with [L.K.]. [37] In making an order for custody pursuant to the Divorce Act, I must take into consideration only the best interests of the children as determined by reference to the condition, means, needs and other circumstances of those children. am not persuaded that it is in these children‘s best interests that they be removed from an environment that offers them the stability that they require nor from the specialized educational opportunities available to them in Saskatoon. [38] The uncontradicted evidence of Ms. Martens indicated that the most important consideration for these children now is stability. That stability is found in their father‘s home. Neither [C.O.] nor [G.P.] appeared to have any meaningful appreciation that move to Clareshorn, six hour drive from Saskatoon, would have any significant impact on the quality or quantity of contract that the children would have with their father. In the circumstances of these children, that contact is of particular importance to ensure that their needs for security and stability are met. [39] Further, very little evidence was presented regarding the educational opportunities in Clareshorn, town of 4,500 to 5,000 people. [C.O.] was aware that there were three schools in the town, from kindergarten to Grade XII. No evidence was presented which would allow me to conclude that [A.S.O.] and [N.R.O.]‘s specialized educational needs would be met in that locality. [G.P.] was not even aware that [A.S.O.] was learning disabled. [40] For the foregoing reasons, I find it in the children‘s best interests that they be in the joint custody of [C.O.] and [K.O.] and that they reside an equal amount of time in each home, alternating every two weeks. There will be an order accordingly. [41] This custodial disposition is “shared custody” arrangement as contemplated by s. of The Federal Child Support Guidelines [Divorce Act Regulations, SOR/97-175] which provides. 9. Where spouse exercises right of access to, or has physical custody of, child for not less than 40 per cent of the time over the course of year, the amount of the child support order must be determined by taking into account (a) the amounts set out in the applicable tables for each of the spouses; (b) the increased costs of shared custody arrangements; and (c) the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought. Also relevant is s. 26.1(2) of the Divorce Act, which sets out that “spouses have joint financial obligation to maintain the children of the marriage in accordance with their relative abilities to contribute” to that obligation. [42] The factors to be considered by the Court and enumerated in s. of the Guidelines recognize that there is an increased cost associated with shared custody as well as joint obligation of the parents to contribute to that cost in accordance with their ability to do so. Maintaining two homes in which children will reside for approximately equal time results in many duplicated expenditures and by necessity, increases the overall cost of providing for the children. While reference must also be made to the amount otherwise payable by each spouse pursuant to the applicable table, set-off of those amounts is not automatic as is the case in situations governed by s. of the Guidelines. Furthermore, the mere existence of shared custody arrangement does not necessarily lead to reduction in the amount of support that one spouse would pay absent such an arrangement. There is broad discretion in the Court to consider the means, needs and circumstances of the children and of the spouses. [43] In Hubic v. Hubic (1997), 1997 CanLII 11103 (SK QB), 157 Sask. R. 150 (Q.B.), Dawson J. considered the application of s. of the Guidelines. She stated at paragraph 17: How should these criteria be taken into consideration? This section differs from “split custody” arrangements, which are dealt with in s. of the Guidelines. Section provides that the amount of child support payable in “split custody” situation is “the difference between the amount that each spouse would otherwise pay if child support order were sought against each of the spouses.” Section is not as limiting. Section 9(a) provides that the amounts set out in the applicable tables should be considered. However, the court should also look at the increased costs of shared custody (9(b)) and any extraordinary expenses incurred by either party or other circumstances which are relevant (9(c)). Section 9(c) contemplates broad discretion in determining the proper award. would suggest that the discretion should be interpreted, having regard to s. 26.1(2) of the Divorce Act, R.S.C. 1985, c. (2nd Supp.); that is that parents have joint responsibility to support their children. The total cost of raising the children should be allocated between the parents having regard to the costs each parent incurs, and their relative incomes. In that case, neither party adduced satisfactory evidence of the increased costs of shared custody such that consideration could be given to s. 9(b) of the Guidelines. Accordingly, child support was assessed by setting off the amounts determined under s. 9(a) with each spouse paying their own expenses for child care and the extra-curricular activities in which they enrolled the children. similar approach was adopted by McIntyre J. in Mertler v. Kardynal (1997), 1997 CanLII 11209 (SK QB), 161 Sask. R. 151 (Q.B.), again where neither party demonstrated the increased costs of shared custody. In that case, the parties had comparable incomes. [44] In this case as well, there was no evidence of the increased cost that would be incurred by [C.O.] and [K.O.] as result of sharing custody of the children. This is not intended to be critical of either party or of counsel. It is difficult to adduce such evidence when, as here, shared custody arrangement has not historically been in place. The evidence would be at best an estimate of the future cost of the new arrangement and necessarily lacking in precision. [45] [K.O.]‘s annual salary is $43,900. He also received “team dollars” in each of the last four taxation years. In the first three of those years, this amounted to an additional $1,200 of income in each year. In the 1997 taxation year, this amount was an additional $2,000 in income. While [K.O.] indicated he could expect to receive this bonus only in six out of every ten years, the evidence demonstrated clear pattern of additional annual income for the purpose of the Guidelines. find [K.O.]‘s annual income for this purpose to be $45,900. Based on this income, the applicable table amount for four children is $962 per month. [46] [C.O.]‘s income is comprised only of the child tax credit, the family income plan supplement and the interim child support that she receives from [K.O.]. Her annual income for the purposes of the Guidelines is below the level at which any child support would be payable by her pursuant to the applicable table. [47] Where as here, there is significant disparity in the incomes of the parties, straight set-off of the applicable table amounts as suggested in both Hubic and Mertler may not in all cases be appropriate. The result in this case would be that [K.O.] would be obliged to pay to [C.O.] the full table amount. While that may be an appropriate result in situations where one party has a high income, in this case it fails to take into account [K.O.]‘s more modest means and ability to pay both the full table amount of child support as well as support four children in his care 50 percent of the time. However, too great reduction in the amount payable by [K.O.] would limit [C.O.]‘s ability to adequately care for the children while with her. Many of her costs will not be reduced merely because the children are with her only one-half of the time. [48] Having considered the foregoing, I am of the view that it is appropriate to reduce the child support payable by [K.O.] pursuant to the table by approximately 30 percent. Accordingly, there will be an order that he pay child support to [C.O.] in the amount of $675 per month commencing February 1, 1999. [49] The only items of matrimonial property left to be divided are registered retirement savings plan and [K.O.]‘s employment pension. The parties agree that these assets, after payment of associated liabilities, should be divided equally. Accordingly, there will be an order that the registered retirement savings plan be redeemed and the proceeds, after payment of any amount remaining outstanding on the loan, and any associated tax liability be divided equally between [K.O.] and [C.O.]. As well, [K.O.]‘s employment pension will be divided equally at source in accordance with the provisions of his employee pension plan regarding division on marriage breakdown. [50] Finally, there will be an order dissolving the marriage, not to take effect for 31 days. [51] There will be no order as to costs.

The primary issue was custody of the four children and dependent upon that determination, the quantum of child support. Matrimonial property owned at the time of separation in 1995 had been divided except for a pension and RSP. The parties agreed to joint custody in 1996 in an interim separation agreement and the father would pay support of $693.80 per month.HELD: 1)The evidence demonstrated a breakdown of the marriage as established by s.8(2)(a) of the Divorce Act. 2)Joint custody was ordered such that the children would reside an equal amount of time in each home, alternating every two weeks. The most important consideration was stability which was to be found in the father's home. Only the best interests of the children must be taken into consideration as determined by the condition, means, needs and other circumstances of the children. 3)The child support payable by the father was reduced by 30 percent. The table amount for four children based on the father's income of $45,900 was $962 per month. The mother's income was below the level at which any support would be payable. Where there is a significant disparity in incomes, a straight set off as suggested in Hubic and Mertler may not be appropriate in all cases. It failed to take into account the father's more modest means and ability to pay the full table amount as well as support for four childen in his care 50 percent of the time. The shared custody arrangement which fell within s.9 of the Federal Child Support Guidelines, did not necessarily lead to a reduction in the amount payable. There was no evidence of increased costs. 4)The parties agreed the registered retirement savings plan and employment pension should be divided equally after liabilities were paid. 5)No costs.

2_1999canlii12455.txt

J. IN THE SUPREME COURT OF NOVA SCOTIA Citation: E.S. v. Children’s Aid Society of Cape Breton-Victoria, 2005 NSSC 172 Date: 20050622 Docket: S.N. No. 19697 Registry: Sydney Between: E.S. and M.S. v. Children’s Aid Society of Cape Breton-Victoria Respondent Revised Decision: The text of the original decision has been revised to remove personal identifying information of the parties on October 9, 2008. Publishers of this case please take note that s.94(1) of the Children and Family Services Act applies and may require editing of this judgment or its heading before publication. Section 94(1) provides: 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” Judge: The Honourable Justice Arthur J. LeBlanc Heard: June 9, 2005, in Sydney, Nova Scotia Counsel: M. Frances Roach MacDonald for the applicant Robert M. Crosby, Q.C., for the respondent By the Court: INTRODUCTION 1.E.S. and M.S. have applied for leave to terminate an order for permanent care and custody respecting their three children: D.-O.H., born [in 1998]; S.B.C.H., born [in 1999] (who is referred to as R.); and E.C.S., born [in 2001]. The decision of MacLellan J. to grant an order for permanent care and custody pursuant to the Children and Family Services Act (CFSA) was affirmed by the Court of Appeal in October 2004 (see [2004] N.S.J. No. 398). [2]The application for leave is dated December 2004. It was adjourned several times. In April 2005, the applicants filed an application to terminate the order for permanent care. Prior to January 31, 2005 prospective adoptive parents for R. and E.C.S. gave notices of proposed adoption. [3]At the hearing the Agency suggested that the court lacked jurisdiction to hear the application to terminate in respect of R. and E.C.S., because notices of proposed adoption had been given. Counsel for the applicants indicated that they intended to proceed with the application for leave rather than the application to terminate. The Agency opposed the leave application on the basis that the applicants had not made sufficient progress sufficient progress to justify granting leave to apply to terminate the Permanent Care and Custody Order. EVIDENCE [4]The applicants provided several affidavits, whose content will discuss below. Affidavit of E.S. and M.S., dated December 20, 2004 [5]E.S. and M.S. state that since the permanent care order was made they have taken “parenting courses” as well as marriage counselling and parenting counselling, and are living together as husband and wife again after temporary separation “at the suggestion of the agency.” They state that they have better understanding of how to cope with day-to-day parenting problems and that they are living in “clean safe home ... with appropriate accommodations for the children.” They also say they have reflected on how to raise and care for their children, and that it was necessary for them to make changes in order to better understand their parenting role. Finally, they state that they can present evidence to establish that there have been material changes in their lives since the Order for Permanent Care and Custody was made. Supplemental Affidavit of M.S., dated February 27, 2005 [6]M.S. states that she had unresolved anger but that she “didn’t fully realize it until my children became involved with the agency.” She states that she was foster child in the care of the Agency, and that she was “essentially on my own from the time was 13 years old.” She had given birth to two children (one of whom died in infancy) when she was 17 years of age, and the third, E.C.S., was born with form of cancer when she was 20 years old. She was “completely overwhelmed” and blamed her husband for her difficulties. Matters got worse when the Agency undertook Protection Application. She and her husband fired their lawyers and turned to “a lay person who ‘helps’ people who are involved with the agency.” Throughout the proceedings including the Appeal, she claims she was badly advised by this person, who she says suggested that the Agency was violating their rights. Consequently, she felt victimized by the Agency and “could not get past my anger to deal in rational manner with anyone.” It was only after the appeal decision had that she felt that she had reacted quite incorrectly and that this layperson did not know how to deal with the problem and neither did she and her husband. M.S. says she takes full responsibility for her conduct. She maintains that at the time, she did not know any better, and at “no time did (particularly me) we understand nor were we advised that we had corresponding responsibility to co-operate for the benefit of ourselves and especially for the benefit of our children.” [7]M.S. says she has been diagnosed with bipolar disorder and obsessive compulsive disorder. She is under the care of Dr. Scott Milligan, psychiatrist at the Cape Breton Regional Hospital. She maintains that she “feels like new person since the medication has taken effect.” She suggests that she would not have been influenced by the lay person, but for the chemical imbalance. [8]M.S. also states that she and her husband have worked at their marriage. She says they “love each other and are getting along like we have never gotten along before.” She maintains that they are ready to undertake formal marriage counselling in order to further develop their skills for problem solving and maintaining tolerance even when they disagree. [9]M.S. states that her medical condition caused her great difficulty in staying focussed, and “now that my brain is stabilized feel that can successfully parent and that can benefit from courses and training.” To that end, she has enrolled in parenting courses at the Family Resource Centre. She states that she also intends to upgrade her education. M.S. claims that both she and husband are “totally committed to breaking the cycle of bad parenting, foster care and social assistance and raising our children to have respect for others and for authority....” [10]M.S. states that she and her husband have made significant improvement in the cleanliness of their home. [11]Although they are concerned about disturbing the children, M.S. and her husband are anxious to speak with them. She states that they are “prepared to co-operate in any way possible with the agency to have them returned” or even “to have access to them.” Supplemental Affidavit of E.S., dated February 27, 2005 [12]E.S. states that during the course of the proceedings, he felt that he was unable to take different position than that of his wife despite the fact that he thought she was being misdirected by the lay person. However, he deferred to his wife because she had prior dealings with the Agency. He feels that she was unable to do any better because of her medical condition and unresolved conflicts. He states that he feels much stronger than before, and has vision for the children and for the entire family that he believes M.S. shares. He states that he and his wife “fully understand and appreciate how counter-productive are anger, rage and all negative emotions, not only towards the Agency but to anyone.” [13]E.S. states that he completed “35 session Anger Management Course through Family Services of Eastern Nova Scotia with Sr. Gwendolyn O’Neill.” He was initially sceptical about the program but now says it was “the best thing ever did in my life.” [14]E.S. says he is in the process of arranging marriage counselling through Family Services. He and M.S. had initiated marriage counselling with Sister O’Neil, but she was no longer available. E.S. states that he and his wife “love each other and are getting along better than we ever have.” [15]He states that their residence is clean and organized. He says his wife has consistent energy since going on medication and keeps the house spotless, and “I make sure help her.” They also intend to start attending church services to make it part of their life. [16]E.S. says he wants his children to become strong and decent citizens and “I know that starts with me.” He states that he is prepared to cooperate with the Agency “in becoming competent and effective parent.” Affidavit of M.S., dated May 16, 2005 [17]M.S. states that she and her husband intended to have the application for leave heard on February 9, 2005, and their new counsel was retained the day before. The hearing was adjourned to February 28. On that date, Robertson J. granted an adjournment to allow them more time for preparation. They subsequently filed the two supplemental affidavits described above. [18]On March 7, 2005, M.S. states, they received two Notices of Proposed Adoption from the Agency. They oppose the adoption of the two children. [19]M.S. states that she has taken parenting courses and that she has learned much from them, due in large measure to her medication. She attributes her attitudinal change and more mature approach to problem-solving to the medication and her psychotherapy with Dr. Milligan. M.S. also states that she and her husband have enrolled in counselling with Family Services of Eastern Nova Scotia and that they “intend to participate fully in every program available to us.” She also maintains that she and E.S. have been working at improving their marriage and that their relationship has “never been better.” She maintains that the children’s best interests in the long term would be better served if they were in their parents’ care. Affidavit of E.S., dated May 16, 2005 [20]E.S. states that there has been extreme change in his wife since she has been under the care of Dr. Milligan: “She is able to remain calm. Her energy level has increased in consistent and stable matter. She keeps our home spotlessly clean.... She no longer reacts to situations in negative manner. She is working diligently to become better person and parent.... too am involved in this endeavour.” He confirms that they have enrolled in counselling with Family Services of Eastern Nova Scotia and that they “intend to pursue any and all resources to better equip us to become effective parents in the long term.” He states that they will co-operate with the Agency “in any and every way” in order to have their children returned or to be “allowed to see our children and interact with them.” He maintains that the long-term best interests of the children would be met in their parents’ care. [21]The Agency provided an affidavit of Mairi MacLean, supervisor with the Agency. Affidavit of Mairi MacLean, dated February 9, 2005 [22]Ms. MacLean states that E.S. is not the biological father of D.-O.H., and that M.S. “has indicated at times that E.S. is, and at other times is not, the biological father of ... S.B.C.H. ....” [23]Ms. MacLean states that the arguments made by E.S. and M.S. before the Court of Appeal only related to matters of process, not to substantive issues. She maintains that no new evidence of parenting courses, marriage counselling or parenting counselling was presented to the Court of Appeal when the appeal was heard on October 15, 2004, and that no evidence has been presented to the court or to the Agency since that date. [24]Ms. MacLean refers to the Parental Capacity and Psychological Assessment completed by Michael Bryson, dated August 27, 2003. The assessor wrote: E.S. and M.S. are currently unable to provide the stability, consistency or appropriate parenting that their children require. If they could provide such stability, it would only likely occur after significant period of individual and couple therapy, modelling of skills, and intensive intervention. Neither parent values the services offered by the Applicant. While other parenting services are available through programs such as The Cape Breton Family Place Resource Centre, it is unlikely that these services will benefit them sufficiently. M.S. has already completed nine such programs and her parenting is abysmal. [Emphasis added by Ms. MacLean.] [25]Ms. MacLean also refers to the Parental Capacity Assessment by Rule and Associates, dated May 26, 2004: Although it is evident ... that the S.’s have made some positive changes, it is not significant enough to make meaningful difference and result in improved parenting that would enhance the children’s lives. The prognosis may have been improved if the S.’s demonstrated any level of cooperation with the agency. However, there is great deal of evidence that suggests that this is impractical to expect. In response to the assessor’s query regarding what she felt need to change in order for things to be better for her family, M.S. reported, “I gotta get rid of CAS. We’re not violent with our kids and we’re not verbally abusive with our kids. mean, you seen it yourself. bathe my kids. am always looking out for their best interest. don’t care what the agency has to say, it’s not the agency I’m looking out for it’s my kids and besides that wouldn’t change nothing about them. She continued, don’t think E.S. needs to make any changes. With me just gotta be me. just gotta learn everything can and take it day by day and it not I’ll be jumping the gun and can’t afford to do that. Like at one point in time used to say this is going to happen tomorrow and that is going to happen tomorrow and I’m gonna make sure of it. Now don’t do that. Now just live day by day, minute by minute. These statements suggest that M.S. does not perceive that she or E.S. need to make any changes. If they don’t perceive that they play part in the difficulties, they will not be motivated to make any change. E.S. is not motivated in terms of working with the agency. He stated, “We made the deal with CAS on the twenty sixth of September that it was temporary care order the kids would be returned. They agreed to it. Maureen MacLean the supervisor and Carrie Evely agreed to it verbally, but when we walked into court five days later, they apprehended my children because didn’t demand Carrie Evely bring me in that little piece of paper to sign my John Henry for temporary care. “He reported that, “Now when we put in our lawsuit, they have sent back their defence plan and it is our strict responsibility to prove beyond shadow of doubt that they did what they did. They have supplied every piece of it themselves. They have dug their own grave. They have piled the dirt up and pulled it on themselves. Honestly and truthfully have told every one of them; family court is one thing, you might be able to pull it off. The whole system could be one big corrupt thing on this island. ain’t gonna say it is and ain’t gonna say it isn’t, but in my opinion, one hand is washing the others back.” His discussion regarding the lawsuit against the agency suggests that it is impractical to expect that he and M.S. can work in cooperative manner with the agency. It appears that their preoccupation regarding their perception of the agency’s treatment of them supercedes their ability to recognize the cost of the ongoing conflict to the children. They do not appear to have the insight or ability to place the children’s needs before their own. [26]Ms. MacLean says the applicants have not “presented any evidence ... that any efforts, successful or otherwise, have been made in the areas of mental health, anger management and impulse control.” [27]Ms. MacLean states that the Agency has attempted to place all of the children in one home for adoption. This appears to be impossible and as result, they have placed each child to be adopted by different adoptive parents, “with ongoing, informal contact between the children.” She states that arrangements for the placement of E.C.S. and S.B.C.H., including contact with the prospective adoptive homes and the preparation of the necessary paperwork, continued during the month of December 2004, and that notices of proposed adoption were signed and filed prior to January 31, 2005. EVIDENCE OF DR. SCOTT MILLIGAN [28]Dr. Scott Milligan is clinical psychiatrist at the Cape Breton Regional Hospital. He was qualified to give expert opinion evidence in the field of General Psychiatry. He testified that he started seeing M.S. in 2004 and continues to do so. He sees her approximately every four weeks for half-hour meetings, primarily for medication management. [29]Dr. Milligan said M.S. suffers from bipolar disorder. He described this disorder by referring to the DSM 4. Basically, this is disorder of depression and mania. He agreed that there are different degrees of the disorder. Some cases are more extreme than others. He said M.S. reported decrease of sleep, increase in sex drive, racing thoughts and increased energy. While she was in his presence, she was upbeat and appropriate. He took her history, as well as collateral information from third parties, in forming the diagnosis. He testified as to the types of medication he had prescribed for her. Dr. Milligan stated that he spoke to M.S.’s husband, her mother-in-law, and her foster mother. They reported that she was calmer and not as loud, and less argumentative, than before she started on medication. [30]Dr. Milligan said M.S. also suffers from an obsessive compulsive disorder. He described this as form of anxiety disorder. It becomes worse under stress. He described this disorder as having strong biological basis, but also psychological component. He had not performed any objective “hard wire”-type testing on M.S.. [31]Dr. Milligan did not know how these conditions impact on M.S.’s ability to raise children, because he would have to see the interaction between parent and child. This is not his area of expertise and did not perform any parental assessment. He agreed that mental disorders can affect person’s ability to make decisions. However, his treatment of M.S., satisfied him that she presents in careful and thoughtful manner. He said her life history was his main concern, and that she appears to be improving. [32]On cross-examination, Dr. Milligan was provided with copies of the parenting assessment prepared by Dr. Landry and Dr. Bryson, dated April 25, 2005. [33]Dr. Milligan said he has been treating M.S. since June 2004. She has missed three out of 13 appointments. He is not providing her with psychotherapy, but said this would be available, in the public or private setting. [34]Dr. Milligan stated that M.S.’s symptoms are subject to self-report and objectively he does not see the symptoms. He agreed that these conditions can arise over time. For example, an obsessive-compulsive disorder can begin suddenly after an illness. In his initial assessment, he did not diagnose all the symptoms that she reported in October 2004. However, he said, it is sometimes the case that some report symptoms later than the first interview. [35]On one occasion Dr. Milligan noted that the medication was not noticeable in M.S.’s blood test. It is possible that she was not taking her medication. He brought it to her attention and the test was re-done. On the retest the medication was detectable. Cross examination of M.S. [36]On cross-examination M.S. stated that there was an error in her initial affidavit. She had not participated in the marriage counselling and parenting counselling as it suggested. However, she claimed, with her medication she is able to parent the children. She claimed she has certain skills, such as playing musical instruments. She is also nature lover and is involved in the program known as Day Camp Canada. She has other hobbies, such as knitting and crocheting, that she believes would be helpful in raising children. She has been involved in sports teams, as well as the Terry Fox run, the Salvation Army program at Christmas and other charity events, such as Red Cross and working with senior citizens. She has been member of the cheerleading squad at school and is involved in Karate. [37]M.S. stated that she is now calmer and can compromise with others. She is less adversarial. She believes she can cooperate with the Agency. Before going on medication, she was fighting an old war, blaming the Agency for her past. She said anger caused the difficulties she is now facing. She said she had taken nine parenting courses before this application was filed and was prepared to take more parenting courses. She said she is thinking more clearly, and has better understanding, because she is continuing to try to improve. She understands that the Agency has concerns because in the past she lashed out and was unwilling to cooperate. She is prepared to work to alleviate their concern and to become better parent. [38]M.S. said she wants to learn how to communicate better with children. Before, she was not listening to the children’s views at all. She has learned to make eye contact and to use such techniques as “time out” and “grounding”. She has learned about nutrition and how to differentiate between daytime and nighttime, and that bedtime is time for rest. [39]Initially, M.S. said, she sought the assistance of the Agency to come in and help. However, this turned to anger. The children at the time were doing things she was unable to control. She did not realize the severity of the difficulties she had. She realizes that hygiene was an important issue before Justice MacLellan. She said the house is now very clean. She is much more consistent in maintaining clean house, and her husband is helping. She said the photographs attached to her affidavit provide an accurate representation of the manner in which he is maintaining the home. [40]When she was having the difficulties in the past, she said, she wanted to end it all. She didn’t even feel as if she wanted to get out of bed. Now, she has the potential to get it right. This came together for her shortly after she lost visitation rights with the children. Although she prevented her children from having normal life, she said she has made significant changes. [41]M.S. claims that she can deal with the oldest child, who suffers from Attention Deficit Hyperactivity Disorder. If she could not, she said she would then resort to professional guidance and assistance. [42]She said April 29, 2004 was the last time she saw her children. She has seen them since, on the street or the mall, but has not want to contact them or talk to them because she is under an order that she does not have access. She said she does not expect the Agency to return the children immediately. However, she would like to have phone call. She is agreeable to having access on weekends only to start and to allow the children to be with the foster parents. She claims that she would like to speak to the children to see them or hold them. She said the children have been at multiple foster homes, except the daughter, who has been only in one. [43]M.S. said that before she began taking medication, she and E.S. had marital difficulties. However, the relationship is now stable. They have learned to communicate. They have common goals in dealing with the children. Her plans are to include the children in skating, and other family activity, including travelling. Her plans also include college education. [44]M.S. said she is seeing James Gouthro with Family Services of Eastern Nova Scotia to improve on the communication problems. She said her husband’s anger is under control. Although he may get upset at things, he has much more control than he did in the past. She said the marriage would be positively affected by the return of the children. [45]She claims she is physically healthy and is not as downcast and anxious as before. She is sleeping properly. In cross examination, she agreed that Dr. Milligan had not done any psychotherapy. She thought she was receiving such treatment. She said she is anxious to undertake such program. She claims that Dr. Milligan gives her advice without telling her. She agrees to continue with the medication, so long as these are prescribed by her doctor. She plans to continue her visits with Dr. Milligan because she believes the medications have had positive impact on her anger and mood. [46]While hearings were underway before Justice MacLellan, she was asked to attend for marriage counselling and she had stopped. Her husband’s counselling between 2002 in 2004 with Sr. O’Neil, but it is more likely it terminated in October 2003. [47]This application was filed in December 2004, and it was prepared by the layperson, Mr. O’Neil. She claims that paragraph of the original affidavit is wrong. The sessions of counselling occurred two years ago and she had taken parenting courses in 2005. As to paragraph 3, she admitted that she had not taken any courses between the date of the appeal and December 2004. She had taken marriage courses since 1999. She also agreed that some of the information contained in paragraph and of the first Affidavit was incorrect. M.S. agrees that she walked out of the courtroom and dismissed her lawyer during the earlier proceeding. She also agreed that he made an inappropriate allegation of improper touching. This required Agency involvement. Cross-examination of E.S. [48]E.S. stated that the statements contained in paragraphs three and five of the original Affidavit are incorrect. [49]He stated that the positions that they adopted during the hearings and appeal are serious mistakes and that they have learned from them. In not stepping in on time, he allowed matters to escalate with the Agency. In fact, he had supported her aggression against the Agency in order to avoid an outburst with her. [50]E.S. said he took 34 anger management courses. He said he was trying to control his wife, rather than discussing things with her and accepting that on occasion she was wrong without trying to convince her that she should change her mind. He is aware that certain events trigger his temper but has found means to control it. When they have serious disagreements he does not argue with her and they agree to disagree. He said his respect for his wife has gone up 90%. He said that as result of the diagnosis and treatment of M.S. by Dr. Milligan, their relationship has much improved. It is now joy to be with her. He is presently in marriage counselling and has found that to be very positive to improve their communication. To date, he has only had one counselling session. [51]E.S. said he is in good physical condition, and he is mentally stable. The marriage is very strong. Before he and M.S. were avoiding each other and did not appreciate the impact this was having on their children. He hopes to be family person and he claims his wife is different person. [52]E.S. referred to number of photographs of this residence and said it is much cleaner than before. M.S.’s energy has increased. It is now easy for him to assist her in keeping it clean. Previously, he complained because he was doing lot of the work on his own; now it is more 50/50. [53]He agreed that the children have problems. But with the assistance of the Agency he believes that they can meet these challenges. He admits they emotionally damaged the children and that he had struck one of them and was not allowed to live in the home. He acknowledges that this was serious mistake. He also agreed that they made false allegation against the foster parent for R. He claimed he was not out to hurt anyone, but only wanted to have his children back. [54]He feels that with parenting courses he can be good father. He said that in the past, he had no eye contact with the children. Now he is prepared to use adult communication techniques and skills and to employ lower tone of voice. He has seen the children on the street or on the mall, but has not spoken with them. He is concerned about the fact that they could be separated when they are adopted and the family unit will be destroyed. He is prepared to abide by the direction of the Agency or the Court. [55]He agreed that at the time they filed the application to leave, there had been no major changes except that M.S. was doing much better than prior to the hearing and during the hearing. He finished his anger management courses in October 2003 and this, combined with his wife’s treatment, has helped them greatly. He has switched over to Jim Gouthro and finished these courses in December 2004. He took parenting courses in 2002 and 2003, but none since. He claimed that there have been six or more sessions of marriage counselling. [56]E.S. said he and his wife are both knowledgeable of musical instruments and play several of them. He is involved in outdoor activities and he believes that this would benefit the children. He enjoys working in the woods. He also enjoys fishing, hunting, baseball and tennis. He would also enjoy family skating. Cross examination of Mairi MacLean [57]Ms. MacLean supervises this file because it was difficult one. In this case, there were threats made against worker. Ms. MacLean said E.C.S. and R. were in adoptive placements. The plan for D.-O.H. was on hold pending the outcome of this application. [58]Ms. MacLean agreed that there were some changes and that many are positive, according to the psychiatric report and testimony. She agreed in that in certain circumstances, the CFSA mandate is to reunite the family. However, the overall objective of the statute is to protect the children from harm. Ms. MacLean said the children were at risk when they were with their parents. In June 2004 there were not sufficient changes made. There were two parental assessments, both of which recommended permanent care. [59]After permanent care order is made, then the focus of the Agency shifts to advance the children’s interest. [60]As there is in no-access provision in the final order, she could not report on how the children are doing. However, she said there are no problems with any of the families. [61]She noted that there had been one session of marriage counselling. However, upon review of the report of Dr. Landry or Dr. Bryson, both claim that M.S. required intensive therapy by counsellor. She agreed that M.S. was on medication at the time these reports were prepared, but said it is possible that she was not getting the right medication. ISSUE [62]The issue is whether there is sufficient evidence to grant leave to the applicants to go to apply for termination of the Permanent Care Order. ANALYSIS Statutory provisions [63]This application is governed by section 48 of the Children and Family Services Act, particularly ss. (6). Termination of permanent care and custody order 48 (1) An order for permanent care and custody terminates when (a) the child reaches nineteen years of age, unless, because the child is pursuing an education program or because the child is under disability, the court orders that the agencies permanent care and custody be extended until the child reaches twenty-one years of age; (b) the child is adopted; (c) the child marries; or (d) the court terminates the order for permanent care and custody pursuant to this Section. Age of Majority Act (2) In subsection (1), "twenty-one years of age" means twenty-one years of age notwithstanding the Age of Majority Act. Application to vary or terminate order (3) party to proceeding may apply to terminate an order for permanent care and custody or to vary access under such an order, in accordance with this Section, including the child where the child is sixteen years of age or more at the time of application for termination or variation of access. Restriction on application for order (4) Where the child has been placed and is residing in the home of person who has given notice of proposed adoption by filing the notice with the Minister, no application to terminate an order for permanent care and custody may be made during the continuance of the adoption placement until (a) the application for adoption is made and the application is dismissed, discontinued or unduly delayed; or (b) there is an undue delay in the making of an application for adoption. Application by agency (5) Subject to subsection (4), the agency may apply at any time to terminate an order for permanent care and custody. Restriction on right to apply (6) Notwithstanding subsection (3), party, other than the agency, may not apply to terminate an order for permanent care and custody (a) within thirty days of the making of the order for permanent care and custody; (b) while the order for permanent care and custody is being appealed pursuant to Section 49; (c) except with leave of the court, within (i) five months after the expiry of the time referred to in clause (a), (ii) six months after the date of the dismissal or discontinuance of previous application by party, other than the agency, to terminate an order for permanent care and custody, or (iii) six months after the date of the final disposition or discontinuance of an appeal of an order for permanent care and custody or of dismissal of an application to terminate an order for permanent care and custody pursuant to subsection (8), whichever is the later; or (d) except with leave of the court, after two years from (i) the expiry of the time referred to in clause (a), or (ii) the date of the final disposition or discontinuance of an appeal of an order for permanent care and custody pursuant to Section 49, whichever is the later. Powers of court on application to vary access (7) On the hearing of an application to vary access under an order for permanent care and custody, the court may, in the child’s best interests, confirm, vary or terminate the access. On application to terminate care and custody (8) On the hearing of an application to terminate an order for permanent care and custody, the court may (a) dismiss the application; (b) adjourn the hearing of the application for period not to exceed ninety days and refer the child, parent or guardian or other person seeking care and custody of the child for psychiatric, medical or other examination or assessment; (c) adjourn the hearing of the application for period not to exceed six months and place the child in the care and custody of parent or guardian, subject to the supervision of the agency; (d) adjourn the hearing of the application for period not to exceed six months and place the child in the care and custody of person other than parent or guardian, with the consent of that other person, subject to the supervision of the agency; or (e) terminate the order for permanent care and custody and order the return of the child to the care and custody of parent or guardian or other person. Application of certain provisions (9) Where the court makes supervision order pursuant to clause ©) or (d) of subsection (8), subsections (1), (2) and (3) of Section 43 and subsection (1) of Section 46 apply. Matters to be considered (10) Before making an order pursuant to subsection (8), the court shall consider (a) whether the circumstances have changed since the making of the order for permanent care and custody; and (b) the child’s best interests. Report to Minister Where (a) child is and has been throughout the immediately preceding year in the permanent care and custody of an agency; (b) no application to terminate or to vary access to the child has been heard during that time; and (c) subsection (4) does not apply, the agency shall at least once during each calendar year thereafter submit written report to the Minister in the form prescribed by the regulations concerning the circumstances of the child and the agencies plan for the child’s care and placement and the Minister shall review the report and make such further inquiries as are considered necessary. 1990, c. 5, s. 48; 1996, c. 10, s. 7. Procedural issues [64]As am proceeding on the basis of the application for leave, am not considering the application to terminate. Therefore, believe have jurisdiction to entertain this application in respect of all three children, not only D.-O.H.. This is so despite the fact that notices of proposed adoption were filed in late January 2005 for the other two children, at least two months after the application for leave was filed. [65]The Agency properly points out that there are restrictions on the right to apply to terminate, and that in the case of an application for leave, it can only be done with leave if the application is filed within six months of the date of final disposition of an appeal of an order for permanent care and custody. The Agency states that an application for leave to terminate is neither conceptually nor legally equivalent to an application to terminate and does not have the effect of placing “termination” substantially in issue before the court. If this were otherwise, the Agency argues, the intention of s. 48(6) would be muted because “a parent could keep the agency and its plans on permanent hold simply by continuously applying for leave.” [66]I am of the view that once an application for leave is properly before the court, and steps are taken to place of the children in an adoptive home and to provide notice of adoption pursuant to the provisions of the statute, it is nevertheless appropriate to deal fully with the application for leave. This application cannot be arrested simply because in the meantime the Agency has taken steps to have the children adopted. Admittedly, there is restriction on making an application to terminate permanent care order once the notice of intended adoption has been served. This is provided in s. 48(4) of the Act. also do not agree with the submission of the Agency that the application for leave somehow lose its status simply because more than six months has elapsed. The intention of the Legislature was to allow restricted opportunity for parents or legal guardians to seek termination of permanent care order if this attempt was made within six months of the permanent care order. That is why the Legislature did not permit applications to terminate within the six-month period without leave of the court. However, once the application for leave is sought, am satisfied that there is corresponding duty on the part of the Agency to suspend the filing of the notice of proposed adoption and the adoption process. Professor Thompson states at page 254 of his Annotated Children and Family Services Act (1991): ... It can properly be argued that an adoption notice should not be filed until the disposition of the leave application ... but once leave has been denied, it is up to the applicant party to seek stay pursuant to Section 49 (2) or (3) pending any appeal of the denial, in order to forestall any continuation of the adoption process. By this means, it should be possible for the courts to address the merits and demands of individual cases, with the onus squarely placed upon the appropriate party in such situations. [67]The Agency acknowledges that in C.A.S. of Cape Breton-Victoria v. G.L. [2004], N.S.J. No 289 (S.C.) Wilson J. heard an application for leave despite the fact the Agency had given notice of proposed adoption. The Agency claims that s. 48(4) overrides any application for leave. Therefore, the Agency contends, an application for leave does not preclude the filing of valid notice of proposed adoption, because if it did it would have the effect of stalling permanent planning for the children. adopt the position of Justice Wilson in G.L. The application to leave can be heard despite the fact that the Agency has given notice of the proposed adoption of two of the children. [68]I must also decide whether should consider evidence which was not included in the original affidavit in support of the application for leave. This evidence was in the form of supplementary evidence and viva voce evidence. The applicants did not make any reference in the original documents supporting the application to the fact that M.S. had been diagnosed with bipolar disorder and an obsessive-compulsive disorder after the permanent care order was made (but before the application was filed). am aware that counsel for the applicants was only retained sometime after the initial application for leave was filed. Counsel for the applicants maintains that should exercise the Court’s inherent jurisdiction and include all of the evidence which is before the court. infer that the position of the Agency is that should refer to the affidavit of the applicants in support of the application for leave, but not to any subsequent affidavits or evidence which was not specifically identified or referred to in subsequent evidence or affidavits. [69]In C.A.S. of Cape Breton-Victoria v. G.L. [2004], N.S.J. No 289 (S.C.), Wilson J. did not determine, as threshold question, whether it would be appropriate to consider evidence that had become available only after the application for leave was filed. He denied the application because there was insufficient evidence to show material change in circumstance since the date of the permanent care order. [70]In view of the fact that the applicants only retained their counsel after the original application was filed, as well as the nature of the issue at stake, I am satisfied that the best interests of the children require that I consider all of the relevant evidence before me, not only the evidence that was provided with the original application. Arguments on the substantive issue [71] As preliminary, note that the best interests of the child are the ultimate consideration on an application such as this. In this respect, note s. 3(2) of the Children and Family Services Act: (2) Where person is directed pursuant to this Act, except in respect of proposed adoption, to make an order or determination in the best interests of child, the person shall consider those of the following circumstances that are relevant: (a) the importance for the child’s development of positive relationship with parent or guardian and secure place as member of family; (b) the child’s relationships with relatives; (c) the importance of continuity in the child’s care and the possible effect on the child of the disruption of that continuity; (d) the bonding that exists between the child and the child’s parent or guardian; (e) the child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs; (f) the child’s physical, mental and emotional level of development; (g) the child’s cultural, racial and linguistic heritage; (h) the religious faith, if any, in which the child is being raised; (I) the merits of plan for the child’s care proposed by an agency, including proposal that the child be placed for adoption, compared with the merits of the child remaining with or returning to parent or guardian; (j) the child’s views and wishes, if they can be reasonably ascertained; (k) the effect on the child of delay in the disposition of the case; (l) the risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of parent or guardian; (m) the degree of risk, if any, that justified the finding that the child is in need of protective services; (n) any other relevant circumstances. [72]The test on leave application was set out in Children’s Aid Society of Cape Breton v. L.M. 1999 CanLII 18566 (NS CA), [1999] N.S.J. No. 236, where the Court of Appeal referred to the statement of Judge Levy in D.L.G. v. Family and Children’s Services of Kings County (1994), 136 N.S.R. (2d) 131 (F.C.): 71 As to the burden on the applicant, Judge Levy said at p. 134: ... the applicant for leave must, in my opinion, present ostensibly credible and weighty evidence that those deficiencies in the parent or her circumstances that led to the care and custody order being granted have improved, or are being convincingly and meaningfully addressed with realistic expectation of success in the reasonably foreseeable future. 72 And further: The applicant for leave does not have to prove that the children should be returned forthwith. What must be established however, is that there is sufficient evidence to warrant holding hearing and of having any agency plans, put on hold; some reasonable prospect of success. The parent's rights and her evidence are to be weighed against whatever negative consequences there might be from holding hearing, and the decision, as with all decisions under the Act, is to be made in the best interests of the children. [73]Ms. MacDonald refers to the scheme of the Children and Family Services Act, which is to support the integrity of the family and maintain family relationships unless it is not in the best interests of the child. She cites Children’s Aid Society of Halifax v. L.P. (1994), 139 N.S.R. (2d) 241, where Daly J. stated: The scheme of the CFSA is to support family relationships but when those relationships are not in the best interests of the child, it is to provide permanent alternate relationships. The scheme also provides for the family relationships to be maintained even under permanent alternate relationships, if it is best for the child. In fact, termination of permanent care and custody order is permitted. Clearly, permanent does not mean that there should be no further parent-child contact. The scheme is thwarted if the parent is able to obtain access only at the time the permanent care and custody order is made. How is parent to successfully recover custody of the child, if there are no opportunities for continuing relationship. Surely, the legislators could not have shut this door and hence subverted the scheme of the CFSA. Section 47(2) provides conditions when the permanent order may provide for an ongoing parent-child relationship, policy that did not exist in the repealed Children's Services Act. Access is permitted if permanent family placement is no planned or is not possible and access would not impair future opportunities for permanent placement s. 47(2)(a). Or, the child has been or will be placed with person who does not wish to adopt the child s. 47(2)©). Or, if the child is 12 years or older and wishes to maintain contact with person eligible to have access s. 47(2)(b). Or, for some other special circumstance that justify access s. 47(2)(d). There may be circumstances unknown at the time of, but that arise after, permanent care and custody order is made, that shows access would be in the best interests of the child. The legislators could not have intended to deny child that opportunity. 10 Finally, the term permanent is misleading in this context. The CFSA permits an agency to have guardianship responsibility for the child. permanent order does not mean final. It is subject to variation by termination and like its counterpart, permanent custody order under custody law, the issue of custody remains an open issue when the best interests of the child are the issue. permanent care and custody order only places an obligation on an agency to provide for the care, in its broadest sense, of child including long term care through an adoption by an adoptive family. [74]Ms. MacDonald, on behalf of the applicants, argues that, although this case dealt with an application for access, the same approach should be followed in the case of an application for leave or an application to terminate. [75]Ms. MacDonald claims that as result of the diagnosis by Dr. Milligan, and the medication he prescribed, M.S. is different person. This is borne out by the evidence of E.S.. She is now capable of dealing with unpleasant issues from her childhood and controlling her emotions, and is working diligently to become responsible, proactive adult. Considerable progress has been made to having clean home and both she and her husband had been working on their marriage with great success. Rather than blame others for the loss of their children, they take full responsibility for their role in the loss. [76]The applicant notes that Justice MacLellan found that M.S. had so much anger towards the Agency that she could not focus on the changes necessary to improve her domestic and parenting skills. With the benefit of medication, counselling and parenting courses, she says that she is now capable of being much better parent. Because of her undiagnosed medical condition, she claims that she felt inadequate. She felt betrayed by the assessment of Michael Bryson. She felt betrayed or persecuted when the children were apprehended by the Agency. As to the anger management courses, E.S. stated that he did not benefit from them at the time because he was deferring to his wife’s wishes. Although there may be need for the Agency to supervise the children’s return to the applicants, they argue that this is preferable to foster or adoptive home, particularly where the children will be separated despite the best intentions of Justice MacLellan to see them adopted as one unit. The applicants also maintain that there should be pause because the children are being adopted by individuals who are not scrutinized by the court. [77]Admittedly, E.S. did strike one child on one occasion and was barred from the family home; however, the applicants say, this was not repeated, and he took full responsibility. While Mr. Bryson noted that M.S. had difficulty with D.-O.H. and that she was rough with him during the interview, Mr. Landry said neither of the applicants were likely to abuse the children intentionally or physically. [78]The parties agree on the test to be applied on leave application. The evidence must give credible reason to believe that the parents are in better position to deal reasonably with their children or have realistic chance of doing so in the reasonably foreseeable future. The Agency contends the parents were dysfunctional as family unit with devastating consequences to the children, particularly the two older children. The assessors who gave evidence, Bryson and Rule, concluded that the children were so severely compromised that it would take better than average parents to parent them effectively. The Agency points out that the Permanent Care Order was made because of poor hygiene, poor nutrition, lack of supervision, domestic disputes, the exposure of the children to the parents’ behaviour, overall poor parenting, physical risk to the children because of inappropriate discipline, M.S.’s explosive temperament and emotional health, E.S.’s anger, lack of insight, desire or inability to improve by the parents, undermining by the parents of the foster care arrangement of R., inability to control themselves during access or exercise access meaningfully, and an all-consuming anger and preoccupation with the Agency. [79]As to the evidence, the Agency claims that even if the applicants have experienced an “Epiphany” and have stopped blaming the Agency, they not yet made any changes in order to understand their parenting roles. [80]The Agency argues that the applicant’s evidence is not credible because they continue to blame someone else for their conduct, such as the lay person who gave them advice. Furthermore, although Dr. Milligan has diagnosed M.S. with bipolar disorder and obsessive compulsive disorder, he is unable to offer any opinion whether or not she is fit to raise children. He has not witnessed M.S. attempt to parent children because it is outside his field of expertise. Furthermore, they only undertook parenting and marriage counselling in February and March 2005, not earlier, as claimed in their original affidavit of December 2004. The Agency claims that there is nothing in the affidavits filed to date, or any other evidence, that demonstrates any real appreciation by either parent of the severity of the problems of their children manifested as result of poor parenting and the domestic chaos to which they were exposed, nor do they speak of how they intend to cope with very challenging children. They point to the fact that M.S. had taken nine parenting courses during the protection proceedings, with no improvement. The agency also takes issue with M.S.’s statement that they are “not bad people we did not abuse our children. We were victims of stress overload and in my case it had medical component and obviously detrimental effect on the children.” The agency maintains that this hardly represents insight into the nature and source of their prior conduct and the need for protection of the children, and says this is simply minimizing behaviour and an attempt to evade responsibility. [81]In L.M. the Court of Appeal applied the reasoning of Judge Levy in D.L.G. to the effect that the applicant must present “ostensibly credible and weighty evidence that those deficiencies in the parent or her circumstances that led to the care and custody order being granted have improved, or are being convincingly and meaningfully addressed with realistic expectation of success in reasonably foreseeable future.” It was not necessary to prove that the children should be returned forthwith, but there should be sufficient evidence to justify holding hearing and placing any agency plans on hold. There must be “some reasonable prospect of success. The parent’s rights and her evidence are to be weighed against whatever negative consequences there might be from holding hearing, and the decision, as with all decisions under the Act, is to be made in the best interests of the children.” It is clear that any decision to grant leave must only be made in the context of what is in the best interests of the children. [82]In her oral decision on the application for permanent care and custody, Justice MacLellan stated: [30] The presenting problems ... were the lack of hygiene, lack of structure, inappropriate discipline, domestic disputes, inability to provide proper nutrition, parental difficulties in managing anger, lack of supervision. It is noteworthy that during the short time that the children were returned to the S.s for the unsupervised visits that did take place in December, 2002, that the children’s aggressive behaviours were reactivated and that they once again began hoarding food in their rooms. [31] The presenting problem, in my view, is anger and poor parenting in practically every aspect. At the conclusion of the evidence, it would appear that the presenting problems were altered very little by interventions. E.S. has shown that he can improve his parenting practices at times but he can’t sustain to the change. M.S. made virtually no progress. [32] The assessors indicate that the prognosis for both parties is guarded. The energies the S.s may have used to effect change was directed instead at the Applicant. The S.s are unable to: (1) acknowledge problem areas; and (2) to appreciate that these problem areas affect their children. Their ability to acknowledge these two problems is non existent. M.S.’s anger is so apparent on video #6 and in Mr. Bryson’s viva voce evidence where rough handling of one child happened in his presence. M.S.’s anger has been well chronicled as she has left the Court room here in an angry manner and it has been chronicled by both Mairi MacLean and Brenda MacInnis who cite numerous examples of extreme anger by both parents in front of the children. Also the request last year for an early return of the children back to foster care is clear example of absence of commitment. The accusation against the foster family in relation to R. shows wish to upset the placement in order to further their case against Children’s Aid as opposed to the welfare of an already compromised child. [34] note the Bryson report was available in the summer of 2003 had number of recommendations for them, number at which were not acted upon. So self-direction or self-help, even with the support of the Agency, was not something that the S.s could see as assisting them. The S.s couldn’t see these services assisting them because fundamentally they don’t see that there is problem. When asked by one of the assessors what M.S. had to work on, she said getting rid of Children’s Aid. E.S. made some concessions to anger but basically felt that he could get the job done without further interventions. note that they took number of courses. think M.S. may have taken up to nine parenting courses but it seems that they took very little from the courses. At the end of the day and have had this file from inception, could not understand if they were unwilling or unable to change, but they simply didn’t change in very chronic areas. It appears that their energy used to get rid of the Children’s Aid Society has consumed any ability to effect the necessary parenting changes and correct chronic problems. Now the result of the S.’s care, their resistance to change is that the children have been in different homes, not their own home, for one year and nine months. E.C.S. is three years and three months old and has been in foster care for one year and nine months. These children, especially the two older, are seriously compromised as pointed out by the assessments. One of the foster placements where the two oldest children were placed they had to be separated because two of them were so challenged that the foster parents, although they tried, they couldn’t deal with R. and D.-O.H. at the same time. [35] had an opportunity to review exhibit 6, the video, to view the effect of the mother’s anger on the children. As have indicated already, they went from rambunctious play, and they certainly are rambunctious, to destructive play within less than moment. The children have been exposed to physical risk as chronicled, that is, R. burning herself in the presence of her parents; D.-O.H. dangerously climbing high chair, wandering without supervision across the road and up the street; corporal correction by both parents; numerous disputes and domestic upsets between both parents in front of the children; and the removal of R. from the foster home where she was content; having her examined by doctors and social workers for no valid reason whatsoever. The children have been put at risk by their parents and if returned would remain at rest with the harmful effects intensified by the passage of time. [36] As stated, the evidence in my view is clear and overwhelming that the S.s have not been able to parent and are unlikely to change in the foreseeable future. As have indicated, whether they are unwilling or unable to change. E.S. is articulate. His cross examination of Mr. Bryson was able, but the all consuming direction is to continue the poor relationship with the Agency. The S.’s aim is to continue the conflict as opposed to working on meaningful efforts to secure the return of their three children [37] find that all less than intrusive steps have been taken and were not accepted or were not successful. Right up to March, 2004 when another avenue under Section 21 was tried, it was rejected days after the Plan was put into place. Representation was eliminated and the Respondents sought help from an untrained third party and so the Plan put under s. 21 was not able to develop. The S.s have refused to accept reasonable access requests by the Applicant and will be unlikely to continue to work with the applicant in the future. [39] believe the children are attached to their parents, from the evidence and the video, however cannot conclude that the S.s will allow the children to stabilize in foster care. We already have very apparent example of how they would not let R. thrive in foster care. So for all the reasons that have given, and it is with regret, adopt the Plan of the Agency in its entirety. find it is in the best interests of the children to have them placed in permanent care for adoption. Given the history of the parents, cannot see how access can take place. It’s really sad situation where you have three little people who are compromised in their development, have bond with their parents, but the parents have made it such that they can’t continue to see the children so the children are being hurt again.... will order permanent care without access as it is not in the children’s best interests for them to continue with access. It is in their best interests that they be adopted. find all the formalities both directive and mandatory under the Act have been met, under the Agency’s obligation, for service, the least intrusive avenues, the foreseeable future test, the best interest test have all been satisfied. [83]In G.L. Justice Wilson determined that there was insufficient evidence offered by the applicant to support reasonable prospect of success in hearing. Similarly, in D. L.G., Judge Levy noted that an application to terminate causes delay and uncertainty in the agency’s plan for children, and such uncertainty and delay might compromise the best interests of the children. However, the CFSA has established mechanism whereby, during the six-month period after an order is made, an application to terminate can only go ahead provided the court grants leave. Judge Levy based his decision on the evidence of the mother and the position taken by the father: 13 What was missing from the mother's application for leave in this case was any evidence to which one could point and get any real sense that things were different even if her evidence was unchallenged by the Agency. 14 The applicant for leave does not have to prove that the children should be returned forthwith. What must be established however, is that there is sufficient evidence to warrant holding hearing and of having any agency plans, put on hold; some reasonable prospect of success. The parent's rights and her evidence are to be weighed against whatever negative consequences there might be from holding hearing, and the decision, as with all decisions under the Act, is to be made in the best interests of the children. 15 For reasons elaborated more specifically in the oral decision, did not get the impression that the shortcomings of the mother identified by Judge Legere were resolved, or that resolution is in sight. had exhaustively reviewed Judge Legere's decision and the evidence before her before this hearing. At its highest the evidence before me gave me no particular sense that there was any basis to be optimistic about any meaningful changes being under way. In essence her position, and evidence before me, was not materially different than that which was known by Judge Legere. must say also, that was discomforted that her evidence in her affidavit about her turbulent relationship with the children's father turned out, once again, to have been less than frank. Judge Legere had cause to question her credibility. So did I. [84]It is apparent that the judge could not find any evidence to which one could point to get real sense that things were different, even if the mother’s evidence was unchallenged. He did not get the impression that the shortcomings identified by the Judge were resolved or that resolution was in sight. He had no sense, he said, of optimism about any meaningful changes. She still had relationship with the children’s father and she had been less than forthright. The trial judge had cause to question her credibility, and so did he. There are no further details of the nature of the evidence which was brought forward. [85]In G.L., Justice Wilson found that although the applicant claimed that she could show substantial change in her circumstances, and that she had made many changes in her life, she had not satisfied the burden for the court to grant leave. After reviewing the evidence before him on the application, including the applicant’s own evidence and psychiatric evidence, he stated, in conclusion: 20 Since the Permanent Care and Custody Order was issued, G.L. has managed to function well and is progressing in therapy very well. In the opinion of Dr. Mian she currently is not suffering from any mental infirmity that would negatively impact upon her ability to provide appropriate care for her daughter. 21 G.L. has spent the time since the Permanent Care Order was issued volunteering with Loaves and Fishes, attending an adult learning center, completing Christopher Leadership course, applying and being accepted into program at the community college. She continues to take her prescription medication on regular basis. 22 G.L. is to be commended for the progress and gain she has made in her personal functioning. 23 The findings of the court at the permanent care hearing indicated extensive personality and psychological deficiencies which negatively impacted on G.L.'s ability to care for her child. Dr. Landry recommended psychotherapy to deal not only with mental health issues but G.L.'s maladaptive interpersonal relationships including anger and hostility and consultations with psychologist regarding the psychological aspects of chronic pain. Dr. Mian agreed with Dr. Landry's recommendations. Dr.Mian also noted at that hearing that G.L. suffered from psychological difficulties including borderline personality disorder and post traumatic stress disorders which could not be cured but managed. Dr. Mian did not give an opinion on G.L.'s capacity or her ability to parent, only that currently she did not suffer from any mental infirmity (such as depression or anxiety) which would negatively impact on her ability to care for her child. 24 G.L. did not adduce any evidence regarding treatment for the psychological difficulties reported by Dr. Landry. G.L. indicated she was seeing Dr. Mian every two or three months regarding her prescription needs and Ms. MacIsaac regarding supportive counselling throughout the court process which will end in August. 25 find that G.L. has not presented sufficient evidence to indicate that the deficiencies in her circumstances and her parenting abilities that lead to the care and custody order being granted have improved or are being convincingly and meaningfully address with realistic expectation of success in the reasonably foreseeable future. 26 have considered the best interest of the child as required by the statute. The child has been in the care of the agency for almost three years. She will soon be five years of age. It is important that there be permanent plan put in place for her well being and development. At the same time the negative consequences that might flow from holding hearing are to be weighed against G.L.'s evidence if there is some reasonable prospect of success. find that the applicant, G.L. has not brought forward sufficient evidence which would indicate some reasonable prospect of success if hearing was held. [86]Consequently, Justice Wilson found that there was insufficient evidence to indicate that the deficiencies in her circumstances and parenting abilities that led to the care and custody order be granted had improved or were being convincingly and meaningfully addressed with realistic expectation of success in the reasonably foreseeable future. [87]In the present case, I find that some of the factors relied upon by Justice MacLellan when she made the order for permanent care and custody are being addressed by the applicants, although they have not been fully dealt with. The essential question is whether this limited progress gives hope that the parents can achieve an acceptable standard of parenting by the date of future hearing to terminate, such that it would then be in the best interests of the children to terminate the order. [88]The main achievements of the applicants so far appear to be the apparent improvement in the parents’ relationship; the courses of counselling and parenting instruction they have embarked upon, as well as M.S. expressed willingness to undertake psychotherapy; M.S.’s diagnoses and medication. am not convinced that there must be major progress in each discreet area of deficiency identified by Justice MacLellan in order to find that reasonable efforts are under way. [89]Justice MacLellan’s decision indicates that good deal of the difficulty caused by the parents related to their hostility towards the Agency, leading to bitter accusations and feelings of victimization. The applicants now express their willingness to co-operate with the Agency in any way in order to facilitate the return of, or access to, the children. They also claim they have scrupulously abided by the terms of the permanent care order. [90]It is also clear that M.S., at the time of the permanent care hearing, showed no interest in improving her own, or the children’s, circumstances. The apparent changes in M.S.’s outlook since the permanent care order was made are described above. [91]The Agency claims that the applicants have not taken responsibility for their conduct and have blamed the lay person who assisted them during the proceeding. While agree that they believe they were misled by this third party, am satisfied that they have taken responsibility upon themselves for following his advice, and that they regret doing so. [92]There must, of course, be cogent reasons to underly granting of leave, given the interests at stake. Overshadowing all other considerations under the CFSA, of course, is the best interests of the children. Certainly it can be argued that the best interests of the children are best served, in these circumstances, by expediting their adoptions. also note that it appears that the children will be placed separately for adoption. [93]The principal changes revealed by the evidence are the diagnosis and medication of M.S., and her willingness to move on to psychotherapy; the marriage and parental counselling the parties have undertaken; the parties changed attitude regarding co-operation with the agency, their observance of the terms of the permanent care order, and their acceptance of responsibility for the course of conduct suggested by their third-party advisor; the parties’ efforts to address their marital difficulties; and the improvements in housekeeping in the parties’ home. [94]While these signs of improvement do not necessarily all bear on the applicants’ ability to parent, they do signify degree of progress. Are these all signs of immediate success? The short answer is no. However, I consider these to be significant building blocks on which to anchor intense parental counselling and, if necessary, extensive marriage counselling. am mindful that am dealing with threshold issue: should the applicants be permitted to apply to terminate the permanent care order. My findings relate only to the leave application, not to the result of any eventual termination application. Whether the parents will indeed succeed in establishing that the order should actually be terminated is not for me to decide at this stage. [95]On the threshold issue of whether the parents should be granted leave to apply to terminate the permanent care and custody order, I am satisfied that the best interests of the children will be best served by allowing the parents’ application. [96]I have not addressed the issue of access in this decision. I am not willing to order access at this time, on the evidence before me. To establish whether access with the parents would be in the children’s best interests requires further evidence. [97]The applicants’ counsel shall prepare the Order accordingly. refer counsel to Civil Procedure Rule 69. In view of the nature of the issues and the best interests of the children, urge counsel to see that this matter proceeds as quickly as possible.

The parents applied for leave to apply to terminate a permanent care and custody order respecting their three children. Proposed Notices of Adoption were filed for two of the children after the parents' application was filed but before it was heard. The order had been made due to, inter alia, issues of poor hygiene and nutrition; lack of supervision; domestic disputes; physical risk to the children due to inappropriate discipline; the mother's explosive temper and mental health; the father's anger; lack of insight, desire or inability to improve by the parents; inability to control themselves during access or exercise access meaningfully and an all-consuming anger and preoccupation with the Agency. Since the order was made, the mother was diagnosed with and now receiving medication for bipolar and obsessive compulsive disorders. Application for leave granted; access not ordered at the present time; supplemental affidavits and viva voce evidence were considered given that the parents had only obtained counsel after the application was filed and the nature of the issue at stake; the application could not be arrested simply because the Agency had taken steps to have the children adopted after the application was filed. Some of the factors leading to the permanent care order were being addressed by the parents, although they had not been fully dealt with; the main achievements so far appeared to be an improvement in the parents' relationship, the courses of counselling and parenting instruction they had embarked upon, an expressed willingness by the mother to undertake psychotherapy, the mother's diagnosis and medication and the parents' changed attitude towards cooperation with the Agency; these are significant building blocks on which to anchor intense parental counselling

5_2005nssc172.txt

QUEEN’S BENCH FOR SASKATCHEWAN Date: 2009 11 03 Citation: 2009 SKQB 433 Docket: F.S.M. No. 44 of 2003 Judicial Centre: Saskatoon, Family Law Division IN THE MATTER OF HEARING UNDER THE CHILD AND FAMILY SERVICES ACT AND IN THE MATTER OF D.T.P-L.C., born June 25, 2001 (“David”) M.S.S., born July 14, 2004 (“Michael”) Counsel: J.D. Hillson and P-L. Tallis for The Ministry of Social Services M.E. Soder for the mother, M.C. (“Melody”) M.J. Helms for the maternal grandmother, L.H., (“Laura”) C.A. Lavier for the paternal grandfather, A.H. (“Art”) JUDGMENT R.S. SMITH J. November 3, 2009 1) This action deals with the placement of two brothers, M.S.S. (“Michael”) and D.T.P-L.C. (“David”), who were apprehended from the care of their maternal grandparents, A.H. (“Art”) and L.H. (“Laura”). To preserve the family’s anonymity, will refer to them by the aforesaid pseudonyms and to the mother of the boys, M.C., as “Melody”. will refer to other players simply by initials. 2) The Ministry seeks an order under s. 37(2), which is a permanent committal and is a precursor to the boys being placed for adoption. Art and Laura oppose the application and petition the Court to return their grandsons to their care. At the commencement of the trial, counsel for the boys’ mother, Melody, indicated that she supported her parents’ application for custody. Legislative regime 3) Recently, Wilkinson J. had occasion to outline an analytical roadmap which the Court should follow in grappling with these unfortunate cases. In Re: V.J.C. et al, 2009 SKQB 395 (CanLII), [2009] S.J. No. 592 (QL), Wilkinson J. opined at paras. to as follows: [4] The Child and Family Services Act, S.S. (1989-90), c. C-7.2 (the “Act”) sets out clear objectives. If child is found in need of protection, the Court is required to look firstly at s. 37(1) which requires determination of whether or not the children should be returned to parent, placed with person of sufficient interest, or with the Minister for temporary period. If no order is available under s. 37(1), then pursuant to s. 37(2), the Court shall make permanent order placing the children with the Minister. However, s. 37(3) provides an exception to s. 37(2), namely, where the Court is of the view that an adoption plan is unlikely due to reasons such as the age of the child or other circumstances. Where the Court is of that view, it may make long-term order placing the child in the custody of the Minister until the age of 18. [5] These are the relevant provisions: 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). [6] The procedure to be followed by Court in making these determinations was outlined in Re: E.K.S. (1996), 1996 CanLII 7131 (SK QB), 146 Sask. R. 46 (Q.B.). [7] The “best interests standard” mandated by s. 37(4)(a) is necessarily an individualistic approach as explained in A.C. v. Manitoba (Director Child and Family Services), 2009 SCC 30 (CanLII), [2009] S.C.J. No. 30, at paras. 88-90. In that case, particular emphasis was placed on the comments of L’Heureux-Dubé J. in Young v. Young, 1993 CanLII 34 (SCC), [1993] S.C.R. 3, that “... courts must be directed to create or support the conditions which are most conducive to the flourishing of the child...” (para. 70) and similar sentiments expressed by McIntyre J. in King v. Low, 1985 CanLII 59 (SCC), [1985] S.C.R. 87, where he observed: “... [i]t must be the aim of the Court ... to choose the course which will best provide for the healthy growth, development and education of the child so that he will be equipped to face the problems of life as mature adult....” (para. 27). 4) Justice Wilkinson’s explication shall inform my reasoning in addressing the facts of this case. Events leading to apprehension 5) At all material times, the Family Service worker responsible for the Ministry of Social Services (“MSS”) concerns for Michael and David was Rae Shoofey-Stabler (“Rae”). Both boys have special needs and are developmentally delayed. MSS opened its file respecting Melody shortly after she gave birth to David. There were concerns about her parenting skills and hygiene in the home. 6) In short, Melody’s problem was that she was overwhelmed as parent. She could not cope. When Rae first met Melody, sometime in 2007, Melody had just given birth to her son K. Melody was self-aware of her inability to contend with newborn and placed K. with his father and his father’s mother to raise. 7) In October, 2007, Melody asked her parents, Art and Laura, if they would care for the boys. They were pleased to do so. MSS was not involved with that private placement but was aware of it and initially comfortable with the plan. At that juncture, Melody carried the hope that having her parents raise the boys would only be temporary. In time, she came to accept that for the foreseeable future she will not be in position to care for the boys on her own. 8) It is to be noted that the fathers of the boys have been served with notice of these proceedings but each has indicated that they are not interested in the trial or the outcome. 9) Through Rae, MSS would periodically check in with Art and Laura as to the status of the boys. The observation was that Michael and David were improving from where they were at under Melody’s care. 10) In November, 2007, MSS received mobile crisis report which raised the question as to whether Art was convicted sex offender. The report came across Rae’s desk and she took steps to investigate. In due course, Rae discovered that in January, 1987 Art had been convicted of sexual assault (which took place in 1986) against four girls who were friends of his daughter, C. He had been sentenced to 21 months and probation for three years on each of the four charges, all to be served concurrently. 11) Rae, quite properly, concluded it was incumbent upon her to meet with Art and Laura and to talk to the boys and Melody. After various meetings with the family, Rae concluded that Art did not pose risk to the boys. Firstly, the allegation was over 20 years old and, from Rae’s investigation, nothing showed Art to have any disposition to sexually assault his own children. Further, Melody advised that she was satisfied that the allegations against Art were false. 12) Through working with Melody and her family, Rae’s relationship with Melody became more trusting. That growing bond likely led to revelations by Melody made in February, 2008. She confided to Rae that Art, on at least two occasions, had molested her once when she was eight and later at age 16. Melody advised Rae that both she and her sister, C., had been sexually abused by Art and had reported it to the police. As Melody related it to Rae, the police did not proceed because she and her sister were too emotionally fragile to cope with court proceeding. 13) What Melody indicated to Rae, although not always in seamless, sequential fashion, was that when she was roughly eight years old Art was naked and she was naked and he rubbed his penis against her vagina. Art also took pictures of her friends in panties and her parents were casual about where they had sex and Melody had had occasion to witness them. The girls for whom Art was prosecuted were age 10 or 11 at the time of the offences in 1986. Additionally, Melody advised that Art fondled the girls and would masturbate in front of them. 14) Suffice it to say, in the face of Melody’s revelations, Rae regretted her decision to allow the boys to stay with Art and Laura. Rae immediately and appropriately reported to her supervisors. The file that MSS previously had respecting Art and Laura and their three daughters was requisitioned for review. 15) Upon receipt of the material, Rae, along with upper management at MSS, reviewed the issues affecting with David and Michael and the old file that dealt with Melody and her two sisters. 16) That inspection by MSS yielded more information than simply the four charges in 1987. MSS was now faced with the following facts that had to be factored into their consideration as to the boys’ continued placement with Art and Laura, namely: (i) Melody said she was molested by Art at age eight and at age 16; (ii) Melody said at age 16 Art had taken pictures of her that were sexual in nature; (iii) Melody’s sister, C., had also said she was molested by Art; (iv) In October, 1989, Court order issued permanently apprehending Melody and her sisters from Art and Laura; (v) Photos were discovered by the teacher of another girl and were given to MSS which then placed them on Melody’s file. MSS understood that Art had taken the photos. They were exhibited as P-3 and are the pictures of young woman (late teens or early 20s in various stages of dress and undress); and (vi) It was discovered that Art had, for number of years, operated photography business focussing on pictures of young models (dressed and undressed) for their portfolio. He would often advertise at food banks and indicated that there was no fee. 17) Shortly after MSS’s reassessment, it was resolved that the boys should be apprehended from Art and Laura and same took place on March 18, 2008. By March 31, 2008, Michael and David were living with “Mary Stevens” and her husband “Albert” (pseudonyms). They operate therapeutic foster home. The boys remain at the Stevens home. Status since apprehension 18) Although living in therapeutic foster home, the boys still have regular contact with Melody and Art and Laura. Melody sees the boys once week and is, to great extent, left alone with the boys. However, she cannot leave the MSS office without being escorted by worker. The grandparents’ access is fully supervised and notes are taken. There have been no problems with the boys’ access to their mother and grandparents. 19) Rae observes that both David and Michael have improved in terms of their ability to carry on daily activities. Each is doing better at school and not acting out as much. Additionally, Michael, who had been verbally challenged, has shown great improvement in both language and vocabulary. 20) MSS has determined that they do not regard Art and Laura as good resource for the boys. They seek an order under s. 37(2) which places the children on an adoption list. Rae concedes adoption may be difficult because both David and Michael have demonstrable cognitive problems or delays. That fact impacts negatively on the likelihood of adoption. Until the boys are adopted, it is the intention of MSS to leave them at the Stevens home. Rae advises that Mary Stevens has indicated willingness to care for the boys on long-term basis. 21) The current caregiver, Mary Stevens, also testified. She has been foster mother for five years and has taken the necessary courses to be deemed therapeutic foster parent. Albert has also taken training but it was unclear whether he benefits from the therapeutic designation. The Stevens have had care and charge of the boys since March 31, 2008. 22) Ms. Stevens indicates that in the beginning David was: (i) Very withdrawn; (ii) Lots of nightmares; (iii) No hygiene at all; (iv) Needed training as to daily tasks, including toilet training; (v) Problems at school with aggression and foul language; (vi) He could not read; and (vii) He seemed particularly mean to girls and prone to racist remarks. 23) Ms. Stevens indicates that David has thrived from being exposed to regular routine. She reads to him every day and considerable progress had been made on that front. She allows that now that David can read his self-confidence has improved and he appears to want to learn. As his self-confidence has improved, his conduct has improved and he no longer poses problems at school. 24) As to Michael, Ms. Stevens observes he was three years old when he came to live with her. Although three, he was more like baby. The issues were: (i) Completely non-verbal; (ii) To the extent he verbalized, it was gibberish; (iii) Still in diapers; (iv) Nightmares; (v) When wanting something, he did not know how to ask all he knew how to do was to cry and scream; and (vi) Throwing tantrums was the only way he seemed to have of communicating. 25) Ms. Stevens allowed that both boys, in the beginning, tended to fondle themselves excessively every time they were in the bathroom or taking baths. She has worked with them on this and they are now less inclined to do so. 26) Ms. Stevens has worked with Michael and he is now able to verbalize although sometimes he is difficult to understand. He was put in pre-kindergarten class which has been good for him. Every day he gets one-on-one speech therapy for 15 minutes. He is now communicating more clearly. Ms. Stevens said he is also potty trained, however, it took close to year and he was four years old before that problem was solved. 27) It is fair to say Michael was never as aggressive with other children as David. If he had problems, he just tended to cry and throw tantrums. In the beginning, he had no social skills and did not know how to play with other children. His social skills have greatly improved. 28) There is regular contact between Ms. Stevens and Melody. Initially, Melody was somewhat distant, not unexpectedly, but over time it has improved and Ms. Stevens has indicated she attempts to assist Melody with her self-esteem. She notes that the boys are always happy to see Melody and concedes they are also happy to see Art and Laura. 29) From comments the boys have made to her, she believes they may have seen violence between Art and Laura, although it is impossible to be conclusive. Ms. Stevens is also of the view that Melody’s relationship with her parents is somewhat uneven. Nonetheless, she acknowledges that Melody is supportive of her parents seeing the boys. 30) Ms. Stevens is prepared to commit to the boys in the sense of continuing to care for them. She says what they truly need is stability and routine. Her husband, Albert, is similarly committed. When asked whether she would be open to an assisted adoption (adoption but continuing to receive money from MSS), Ms. Stevens said that she would consider it. 31) It is worthwhile to note that the therapeutic foster home operated by the Stevens is occupied by the two of them and seven foster children two girls, and 16 and three boys, ages 8, and 11, plus Michael and David. All the children have special needs of some sort, even high needs. Ms. Stevens testified that from time to time MSS will come to her to be an emergency foster home and therefore she will add to her brood for short period of time. At one juncture, she had nine foster children. 32) The physical plant of the foster home must present some challenges. Ms. Stevens indicated she did not know the square footage but did advise that there were: four bedrooms; kitchen; livingroom; recreation room in basement; three TVs; one bathroom; separate laundry room; and large back yard. 33) inquired whether her home, with her and Albert and seven foster children, and sometimes up to nine, each with some type of special need, would be problematic, bearing in mind there was only one bathroom. She replied that they can and do cope. It is obvious that in order to have positive environment within those restrictions, it is necessary to be very organized and cohere to routine. It is clear that Ms. Stevens has the skills to do that. 34) It is not necessary for me to remind MSS that it has moral and legal duty to ensure that foster home has the necessary physical requirements to properly care for the children placed in such home. MSS has no doubt concluded the Stevens home meets the necessary standard. 35) The Court heard from the educational assistant who attends to Michael in his afternoon kindergarten class. She does 15 minute one-on-one speech work with him every day and then attends to him along with some other special needs children. She has only seen Michael since the start of school in September, 2009. She said he seems to have settled down in the last week or so. He does not socialize well, however, he does not get angry, he just tends to be by himself. At first, Michael was not verbal but slow progress has been made on that front. She estimates he functions at the age three to four level. From her perspective, Michael will require an educational assistant for the foreseeable future. 36) David’s Grade teacher also testified and describes him as very kind boy who is good with the other children, both in the class and on the playground. He tries hard but obviously struggles academically. He is easily distracted. David has not shown himself to be aggressive with the other children. He is more often by himself, somewhat like bystander. He oral reading level is about the middle of Grade 1. His comprehension level is less. Art and Laura 37) Art and Laura called five friends, all of whom have knowledge of the boys and Art and Laura. Most were also involved with Art and Laura at their Pentecostal church. The witnesses were sincere, both in their concern for the boys and in their belief that Art and Laura could provide them with decent home. All commented that Art and Laura are committed to each other and have support network of friends. 38) Art is 53 years old. He has been on disability and more or less unemployed since he got out of jail in 1988. His health problems include diabetes and prostate cancer. He also has mobility issues. 39) Art and Laura have lived together since 1986 but have known each other well since the 1970s. They have three children, A., Melody, and C. It is somewhat of an open question as to whether Art is the biological father of Melody as at the time of her conception both Art and Laura were living with other partners. Nothing turns on this, as both Art and Laura are convinced that Art is Melody’s father. 40) Art has had somewhat complex familial background, having had number of partners. He has three other children, N., P. and T. He did not know he was the father of T. until approximately three years ago. 41) Art is not stranger to the criminal justice system. He readily acknowledged he has criminal record. brief summary is as follows: (i) Convicted of indecent acts (s. 169(b)) in 1997. Art said he was walking around nude in his house with the drapes open. The business across the street complained and he plead guilty. (ii) 1980 plead guilty to indecent assault on female (s. 149). The facts were simply that he exposed himself to woman. He advises there was no touching. (iii) In 1987, as previously referred to, he was convicted of four counts of sexual assault on four girls (aged roughly 10 or 11). Pursuant to s. 246.1, he was sentenced to 21 months and three years probation. 42) Art says the 1987 convictions are an injustice. Firstly, his lawyer pleaded him guilty notwithstanding that he did not want to plead guilty. Secondly, he did not assault the girls. What happened was that his daughter, C., and four of her friends were in the basement drinking wine and smoking marijuana with boy. He threw the boy out. The young man then conspired with the four girls and they laid false charges of sexual assault against Art. Art, however, does admit that, at that time, he did periodically walk around the house nude and when he masturbated, the door was often left open. 43) That laissez-faire approach to sexuality was confirmed by Chief Justice Laing in prosecution against Art which went forward in February/March, 2001. Although Melody had advised MSS that the Crown did not proceed with charges against Art based on her complaint, the fact is they did. 44) Art was charged with sexual assault (s. 271) against Melody, who was then described as his step-daughter. The alleged assault took place between November 1, 1996 and March 1, 1999. Chief Justice Laing (then Justice Laing) delivered judgment on March 1, 2001 and in doing so made the following observation, firstly at page 1, line 12: In the latter part of February, 1999, on the same day the accused had shaved the public hair of [Melody] and her friend [name omitted], the two girls left for [name omitted]’s sister’s house and [Melody] did not return to [Art and Laura’s] home thereafter. Evidence indicates some sort of disclosure occurred on that day. will not refer to the background evidence in detail, but suffice it to say this was somewhat unorthodox household, insofar as the accused regularly walked around naked, as did [Laura] on occasion. The accused apparently masturbated without too much concern about who might observe him. And both the accused and [Laura] had sufficiently libertine attitude to allow the accused to take photos of [Melody] and her friends in lingerie and/or bikinis, whereupon he made various adjustments to [Melody]’s attire; and also allowed for the accused to shave the pubic hair of [Melody] and her friend [name omitted], again in the presence of [Laura]. The foregoing activity is referred to and is not disputed, simply to make the point that none of the touching which has occurred in the foregoing events form the subject of these charges. 45) It is important to note that Chief Justice Laing acquitted Art of the charge. It was clear that Melody’s inability to give coherent testimony as to time and place precluded the Crown from meeting its burden. 46) When asked about Chief Justice Laing’s comments in 2001, Art took some exception. Although he does concede shaving the pubic area of Melody’s friend, he said that he did not shave Melody’s. 47) In cross-examination, Art was asked if he ever treated his daughters in sexually inappropriate way. He replied flatly that he did not. asked him if he considered masturbating in front of his daughters sexually inappropriate. After shrug, he did allow it is inappropriate but he clearly considered it at the lower end on the scale of outrage. 48) Art does concede that in addition to Melody, his daughter C. has accused him of sexual assault although the matter did not go to trial. Art points out that when he was in prison he received extensive counselling and through the three year probation period. He even continued counselling after the three years as he thought he was helping the counsellor with the others in the group. 49) There was considerable evidence from Art, both in chief and cross, concerning photographs (P-3) and activities he undertook apparently between 1992 and 1999. During that period, he was engaged in photography business where he would take photos of young women, in various stages of dress and undress, so they could put together modelling portfolio. He would charge no fee. 50) Although Art charged no fee, it was not completely altruistic undertaking. Art had contact in the east who was in the modelling business. If that contact actually employed one of Art’s photographic subjects, then he would receive $1,000 finder’s fee. He advised he did receive the fee at least once. 51) Art admits that in the process of taking those photos there was often shaving of the pubic area. Although his wife was always in attendance, it was he that would attend to that aspect of preparation. The business ended in 1999. 52) The 1987 conviction was not Art’s last brush with the law. There are two other convictions on his record, namely: (i) In 2000, he was convicted of fraud over $5,000 (s. 380(1)(a)) and given 12 month conditional sentence order and restitution. Essentially, the charge was welfare fraud. Art was working and being paid at the same time he was receiving Social Assistance benefits. Art explains that it was case of necessity. He and Laura had taken in two girls they knew into their home who were otherwise living on the street. He needed the extra money to care for them and as result was forced to work. (ii) In 2007, Art was again convicted of fraud over $5,000 (s. 380(1)(a)) and was given nine month conditional sentence order and an order for restitution in the amount of $5,400. Again, it was welfare fraud. Art asserts this was yet another judicial error. He said that Laura was working and receiving Social Assistance benefits, not him. Nonetheless, they were both charged. 53) After working through the Criminal Code convictions and the photography business, the balance of Art’s testimony focussed on his relationship with the boys. Art testified as to his love for the boys and do not doubt his sincerity. He and Laura see David and Michael every third Sunday, more or less, and he avers that the boys are always thrilled to see the two of them. 54) Arts also outlined solid relationship with Laura. He concedes they have ups and downs as do everyone but there is never any violence. 55) Art testified that he and Laura are regular churchgoers and it is clear their social life involves people from the church. He wants the opportunity to raise Michael and David so that he can instill in them Christian values. 56) Laura’s testimony echoed Arts in terms of the nature of their relationship and their love for the boys. She acknowledged that when Art got out of jail in 1988 she put her foot down about him walking around nude and masturbating with the door open. She says it has not been problem since. 57) Laura spoke of the boys lovingly and pleads for an opportunity to raise them in their home. She concedes their family has had problems and that their relationship with Melody has been off and on. She acknowledges that in October, 1989 permanent order issued apprehending Melody and her two sisters, placing them in the custody of the Minister of Social Services. 58) Further, Laura admits that sometime after her daughters were taken she penned letter to C. The letter also appears to be addressing Melody and her other sister, A. In essence, the letter is mea culpa on behalf of her and Art respecting the home life they had provided. sense of the tone of the correspondence is reflected in the second paragraph which reads: am writing this letter to inform you that now know everything about what [Art] did to you. do know you feel about what happen [sic] between you and [Art] but when we had counselling at McNeill Clinic really didn’t understand what you went through. do know now what you went through when it happened. So hope and wish you forgive me for my ignorance about it some time in the future. 59) Laura concedes that she remains unreconciled with her daughters, C. and A. 60) Laura’s loyalty to Art is ironclad. When Laura was asked about Art’s conviction respecting the four girls in 1987, she answered that she thought the girls were lying. When asked about Melody’s allegations against Art, she answered that she thought Melody was lying. When asked about her daughter, C.’s, allegations that Art had molested her, she again replied that C. was lying. 61) MSS placed considerable weight on the contention that Art is at risk of sexually reoffending and specifically offending against the boys. The Court benefited from the evidence of two experts, Dr. Brian Chartier, clinical psychologist who was qualified to give evidence in psychology as it related to parent capacity and sexual deviance; and Dr. J. Stephen Wormith, registered psychologist who was called on behalf of Art. Dr. Chartier readily acknowledged the expertise of Dr. Wormith in the area of sexual offenders. 62) Dr. Chartier did not have occasion to assess Art but he did engage in two-day assessment of Melody approximately one year ago. In that process, Melody made number of disturbing disclosures, namely the incidents with Art. He allows Melody’s emotions run the gamut respecting her parents, from hating them to “trying to deal with them”. He acknowledges Melody is not always able to give an accurate recitation of events in terms of date and sequence. He was not surprised that she proved to be problematic witness at the aforementioned 2001 trial of Art. 63) Dr. Chartier outlines that once sexual preference is developed, it does not change. In short, there is no cure for sexual preference for young children or young women. The focus of psychologists in addressing an offender is to change behaviour so as to fortify the offender in resisting his urges. Dr. Chartier repeated what the Court already knows that children learn from their parents. If parents create sexualized environment, that clearly impacts the children. To them, it appears to be the norm. Dr. Chartier observed that the harm of an inappropriately sexualized environment can be exacerbated if the children are intellectually delayed. Those children are, by definition, more vulnerable. 64) Dr. Wormith, who testified on behalf of Art, is an acknowledged expert in the field of paedophelia. He had occasion to meet with Art and used the STATIC 99 test which is the accepted testing vehicle to determine the risk factor of sexual offender. Art received score of out of possible 12 points. This places him in the “moderate-high” risk category. The score on the STATIC 99 test is derived essentially from an actuarial table which assigns points to convictions and relationship of the offender to the victim. Dr. Wormith conducted the test on the basis that Art was unrelated to the victims, although was aware that Melody had made an accusation, albeit unsubstantiated. Dr. Wormith was unaware that Melody’s sister, C., had also filed statement with police alleging Art had sexually assaulted her. 65) Dr. Wormith testified that although Art placed on the moderate-high risk category, there were mitigating factors which reduce that risk vis-à-vis Michael and David. Those factors are: (i) in excess of 20 years since conviction for sexual offence; (ii) his offences were against girls, not boys; and (iii) Art’s age and health are also factors which typically mitigate risk. 66) In sum, Dr. Wormith believes Art presents some, but minimal, risk of reoffending. However, that is qualified by the following remarks in his reporting letter. At page 6: [Art] denies that he sexually assaulted any of the girls, although he does acknowledge that he did do some sexually inappropriate things. This included walking around the house nude and masturbating in front of the girls. His stance at the time was that it was his house and he would dress as he pleased and do as he wished regardless of who was present. When challenged about the behaviour, he indicated that he now agrees that it was wrong and that his counseling sessions with Mr. Doug Harder assisted him in taking different perspective on the matter. Yet in recounting the incident, he still seems to subscribe to the “I’m king of my castle and when I’m there can do whatever please” principle. Then, at page 9: [Art] presents as single minded type of individual who holds his opinions very strongly. Family dynamics with their long history of arguing, fighting and not talking to one another indicate very seriously dysfunctional family. [Art’s] history of sexual offending appears, at least partly, to be at the root of these difficulties. His relationship with their daughter, [Melody], has been problematic, he acknowledges since she was about the age of sixteen. How much of this conflict is rooted in his inappropriate sexual behaviour with her remains unknown but certainly is probable contributor. Finally, at page 11, Dr. Wormith observes: The element of risk is present, in large part, simply because of his sexual offense history. The fact that he has, on three separate occasions been convicted of sexual offenses constitute what is referred to as “static” risk factor and will remain with him throughout his life, although as reflected above the magnitude of this risk decreases over time and it has indeed been many years since his last sexual offense. Inappropriate sexual behaviour with his daughter, for which he has never been prosecuted, may have occurred more recently, thus shortening the period of problem-free sexual misbehaviour. Secondly, his recounting of his sexual offenses and his explanations of them remain quite disquieting. His persistent denial and minimization of the severity of his actions remains in evidence in spite of what appears to have been fairly lengthy period of counseling. There remains an element of defiance to his justification for his behaviour in his earlier offenses. His outright denial of the four counts of sexual assault and account of the manner in which his case was handled in court are also of concern. Although the statistical evidence as to what extent these characteristics augment his risk is uncertain, they remain troublesome. Finally, other more recent actions suggest some question of judgment on [Art’s] part. His relatively recent fraud conviction in 2007, repeat of similar conviction in 2000 suggests an ongoing inclination to live outside the strictures of the law and conventional society. His run-in with an employee of the Ministry of Social Services suggests some ongoing interpersonal difficulties and perhaps an element of impulsivity and temper control, as does the ongoing difficulty with their daughter [Melody] although she is no doubt contributing significantly to the tension and strained relationship between them. Collectively, these events and implied characteristics of [Art] introduce another concern, that of personal judgment when it comes to interpersonal matters, which could impact on the nature of his parenting behaviour. 67) Having heard the evidence, and having observed Art, am inclined to agree with Dr. Wormith. In my view there appears to be minimum risk that Art would sexually assault the boys. However, that finding does not necessarily lead to conclusion that Art and Laura present meaningful opportunity for the boys to benefit from nurturing environment. 68) reiterate that there is no doubt Art and Laura love and wish the best for David and Michael. However, one of the best predictors of what will happen is to look to the past. An examination of the familial context of Art and Laura presents real concerns. 69) Firstly, there is the fact that Melody and her two sisters were permanently apprehended from Art and Laura in 1989 and committed to the Minister. Additionally, it is pertinent to observe that Art and Laura have three children and Art has three children from other partnerships. Of those six, Art and Laura are completely estranged from four. Although they have relationship with T., it is of short duration. Two of the children allege Art sexually assaulted them. 70) Their relationship with Melody is complicated and, tellingly, when Melody took the stand and was asked where she would like to see the boys placed, she replied that her preference was with Mary Stevens. That preference is no doubt because her relationship with Mary Stevens is less problematic than it is with her parents. Having said that, it is important to acknowledge that Melody said that in her opinion the boys would be in “good hands” regardless of whether they were placed with the Stevens or Art and Laura. 71) The Court is presented with two uneasy options. Placement with the Minister results with the boys continuing in foster care indefinitely unless they are adopted. While I accept the Stevens home is a positive and nurturing one, there is no question it not an ideal physical plant for nine people. Nonetheless, also accept that with organization, routine and discipline, it can function at satisfactory level. Further, if an order is made under s. 37(2), the boys have the opportunity to be adopted, which is always considered preferable to foster care. I cannot lightly preclude that possibility. 72) The other option is to return the children to Art and Laura. While they do love them, there are real questions that arise from their history and the reality of their ongoing estrangement from four of their six children. On balance, am compelled to agree with MSS that Art and Laura are not able to provide the boys with an acceptable opportunity or grounding from which they can meet their uncertain and challenging future. conclude the best interests of the boys lies in permanent placement with MSS. 73) Accordingly, I make the following orders: (i) I find that David and Michael are children in need of protection under s. 11(1)(b) of The Child and Family Services Act. Further, there will be an order under s. 37(2) placing the boys in the permanent care of the Minister. (ii) I order that for as long as the children are in foster care, that the Ministry make arrangements for the boys to have regular access to their mother and to Art and Laura. The conditions respecting such access shall be as determined by MSS to be in the best interests of David and Michael or as ordered by the Court. 74) There shall be no order as to costs. J. R. S. Smith

The Ministry seeks an order under s. 37(2) which is a permanent committal and is a precursor to the boys Michael and David being placed for adoption. Art and Laura, the maternal grandparents oppose the application and want the boys returned to their care. The mother, Melody, supported her parent's application for custody. HELD: The boys are in need of protection and there is an order placing the boys in the permanent care of the Minister. As long as the boys are in foster care, the Ministry will make arrangements for the boys to have regular access to their mother and to Art and Laura. 1) There is no doubt but that Art and Laura love and wish the best for the boys. However, there are real concerns about Art and Laura' familial context. There is the fact that Art and Laura's own children were apprehended in 1989 and committed to the Minister. It is pertinent to note Art and Laura are estranged from four of their six children. Two of Art's children claim he sexually assaulted them. When Melody testified she said her first preference was that the boys be placed with Mary Stevens, their foster parent, but did acknowledge that the boys would be in good hands with Art and Laura. 2) While the Court accepts that the Stevens home is a positive and nurturing one, there is no question it is not an ideal physical place for 9 people. With organization, routine and discipline however, it can function at a satisfactory level. Further, if an order is made under s. 37(2), the boys have the opportunity to be adopted. The Court cannot lightly preclude that possibility.

c_2009skqb433.txt

J. Bankruptcy No. 4344 Estate No. 023291 J.C.R. IN THE QUEEN'S BENCH PROVINCE OF SASKATCHEWAN IN BANKRUPTCY AND INSOLVENCY IN THE MATTER OF THE BANKRUPTCY OF LARRY PETER CLOUTIER Larry Peter Cloutier, Bankrupt P.M. Tomney, Deloitte Touche Inc., Trustee Julie Rogers-Glabush, for Her Majesty the Queen in Right of Canada, as represented by the Minister of National Revenue, objecting creditor JUDGMENT MAURICE J. HERAUF, July 22, 1999 Registrar in Bankruptcy This discharge application involves another bankrupt who is self employed and through indifference, disregard and neglect does not pay his taxes. This is the second bankruptcy for this bankrupt. The sole unsecured creditor is Revenue Canada with a proved claim of just under $89,000.00 for unpaid income tax and unremitted G.S.T. It should come as no surprise that Revenue Canada was also the major creditor in the first bankruptcy. The bankrupt has horrendous record for non-payment of his tax obligations which stretches back at least 15 years. Not only does the bankrupt not pay his taxes he also does not file his returns. The bankrupt is 43 years of age, in good health and has no dependants. He is a self-employed contractor and has an enviable income. In fact, the only issue at the discharge hearing was the determination of the amount of surplus income available to pay toward conditional order. The trustee calculated surplus income at $435.00 per month and recommended a conditional order requiring the payment of $7800.00. It would take approximately 18 months to complete the terms of the order. The objecting creditor calculated surplus income at $750.00 and requested a four year conditional order providing for monthly payments of this sum. It should come as no surprise that the bankrupt preferred the recommendation of the trustee. have carefully reviewed the financial material on file and considered the submissions of the parties. I have concluded that the bankrupt can safely accommodate a payment of $500.00 per month for three years without jeopardizing his ability to pay toward his current tax obligations. Therefore, there will be an order requiring the bankrupt to pay to the trustee the sum of $18,000.00 for distribution to the unsecured creditors. The bankrupt shall pay this amount by monthly instalments of $500.00 per month commencing September 1, 1999 and continuing on the 1st of each month thereafter until paid in full. Judgement interest will accrue on any payment in arrears. The right of prepayment exists. Since the bankrupt denies any knowledge of his obligation to make regular instalment payments on his self-employment income would be remiss if did not offer the court’s assistance to educate the bankrupt relating to this obligation. Accordingly, there will also be an order that during the term of the conditional order the bankrupt will be required to make regular instalment payments on his self-employment income and comply with income tax and G.S.T. filing requirements. The objecting creditor is entitled to costs of $400.00 payable out of the estate. Registrar in Bankruptcy

The bankrupt was self-employed and failed to pay his taxes, owing Revenue Canada $89,000. The trustee calculated surplus income at $435 per month and recommended a conditional order of discharge requiring the payment of $7,800. Revenue Canada objected, requesting a conditional order for monthly payments of $750 over 4 years. HELD: Conditional order of discharge granted. The court found that the bankrupt was 43 years old, in good health and with no dependents. The bankrupt was also a self-employed contractor with an 'enviable' income. Following a review of the bankrupt's financial material on file, the court ordered the bankrupt to pay $500 per month for 3 years, to make regular installment payments on his self-employment income and comply with tax filing requirements.

d_1999canlii12779.txt

J. _Editor's Note: Addendum released June 27, 1996. Original judgment has been corrected with text of addendum appended. Q.B.G. A.D. 1995 No. 2983 J.C.R. IN THE QUEEN'S BENCH JUDICIAL CENTRE OF REGINA IN THE MATTER OF THE LEAGUE OF EDUCATIONAL ADMINISTRATORS, DIRECTORS AND SUPERINTENDENTS ACT, 1991, S.S. 1990-9l, c. L- 9.02 AND EUGENE PAQUIN, DIRECTOR OF EDUCATION FOR THE LAST MOUNTAIN SCHOOL DIVISION, IN THE PROVINCE OF SASKATCHEWAN BETWEEN: EUGENE PAQUIN and THE LEAGUE OF EDUCATIONAL ADMINISTRATORS, DIRECTORS AND SUPERINTENDENTS OF SASKATCHEWAN RESPONDENT A. A. Fox for the appellant R. A. Robertson for the respondent JUDGMENT GROTSKY J. May 31, 1996 PREAMBLE Pursuant to Rules 15 and 171 of the Rules of Practice and Procedure of this Court, the style of cause in the within proceedings is amended to read: IN THE MATTER OF THE LEAGUE OF EDUCATIONAL ADMINISTRATORS, DIRECTORS AND SUPERINTENDENTS ACT, 1991, S.S. 1990-91, c. L-9.02 AND EUGENE PAQUIN, DIRECTOR OF EDUCATION FOR THE LAST MOUNTAIN SCHOOL DIVISION, IN THE PROVINCE OF SASKATCHEWAN NATURE OF PROCEEDINGS This is an appeal, pursuant to the provisions of s. 51 of said The League of Educational Administrators, Directors and Superintendents Act, 1991, S.S. 1990-91, c. L-9.02, from the decisions of the Discipline Committee, and Executive Committee, of the League of Educational Administrators, Directors and Superintendents which found the appellant guilty of professional misconduct respecting the following particulars: 1.The Committee finds that Mr. E. Paquin intentionally caused Mr. D. Bonner to believe that he was conveying the substance of the written report prepared by Mrs. G. Dueck on the School Effectiveness Process at the meeting of April 10. The Committee is satisfied that by both his actions and the oral statements made at this meeting, Mr. E. Paquin misrepresented to Mr. D. Bonner that the report was critical of his leadership and recommended that he be transferred, when in fact this was not true. 2.The Discipline Committee finds that Mr. E. Paquin did threaten Mr. P. Bedier that if he did not submit his transfer request and resignation from the principalship that the matter would be dealt with at the Board table and that "it could get ugly". and, on August 8, 1995, imposed the following penalties on the 1. That Mr. Eugene Paquin be formally reprimanded through letter transmitted by the President and the Executive Director of LEADS and that the letter be maintained on file with LEADS for period of five years. 2. That Mr. Eugene Paquin be fined $2,500.00 with full payment to be made by October 31, 1995. 3. That the LEADS Executive Director contact Mr. Paquin by September 1, 1995 to offer on-going counsel and support. The grounds upon which this appeal is brought are: 1.The decision is against the law, the evidence and the weight of evidence; 2.The Discipline Committee erred in finding that the conduct of the Appellant constituted professional misconduct; 3.The Discipline Committee erred in finding that the Appellant intentionally misrepresented to Dale Bonner the contents of the SPDU report; 4.The Discipline Committee erred in its determination that the Appellant threatened Paul Bedier when he requested transfer and resignation from the principalship; 5.The Discipline Committee erred in its determination that the identified acts of the Appellant, in isolation, constituted coercion and thereby constituted professional misconduct; 6.The Discipline Committee made overriding and palpable errors in its findings of fact and (sic) application of those facts and otherwise erred in its application of the burden and standard of proof; 7.In the alternative, that the disposition imposed by the Respondent Executive Committee was excessive. RELIEF SOUGHT BY APPELLANT The appellant seeks an order that: a.The findings of guilt by the Discipline Committee, and the sentence imposed by the Executive Committee, be set aside; b. Alternatively, that new hearing be granted; c.In the further alternative, that the sentence be reduced. The appellant, at all times material, was the director of the Last Mountain School Division (hereafter "the division") and member of the League of Educational Administrators, Directors and Superintendents of Saskatchewan, (hereafter "LEADS"). At all times material said Dale Bonner was the principal of the Punnichy Saskatchewan Elementary School and said Paul Bedier was the principal of the Bulyea Saskatchewan Elementary School both of which said schools were part of the division. The appellant was charged that on, or about, the 11th day of April, 1995, at the said Town of Punnichy, he did coerce the resignation of said Dale Bonner from his principalship of said Punnichy Elementary School through the use of untrue statements, misrepresentations of report and threats, particulars whereof are as follows: 1.Communicating to said Dale Bonner that the Band Committee, the Local Punnichy Board and the Division Board wanted him gone; 2.Misrepresenting to said Dale Bonner that the school improvement process report for the division dated March, 1995, made by the Saskatchewan Professional Development Unit was critical of his leadership and recommended that he be transferred; 3.Threatening said Dale Bonner that if he remained as principal of the said Punnichy Elementary School there would be discrimination suit filed against the said school; 4.Threatening said Dale Bonner that if he did not resign as principal, and sign request for transfer, he would be intensely supervised with the Director or Assistant Director in his classroom at least once week, and further, some time before the end of May, 1995, the Division Board would transfer him anyway; and 5.Threatening said Dale Bonner with termination of his contract if, during his supervision period he was found to be incompetent. The appellant was also charged that he did on, or about, the 12th day of April, 1995, at the Town of Bulyea, Saskatchewan, coerce the resignation of said Paul Bedier from his principalship of said Bulyea school through the making of an untrue statement, and threat, particulars of which are as follows: 1.Communicating to said Paul Bedier that the Local Bulyea Board wanted him transferred; and 2.Threatening said Paul Bedier that if he did not apply for transfer and resign as principal, that the matter would be dealt with at the board table and that "it could get ugly". hearing was held before the Discipline Committee of LEADS in Saskatoon, Saskatchewan, on July 10 to 13, l995. In due course decision was rendered by the said Discipline Committee dismissing allegations 1, 3, and concerning said Dale Bonner and allegation concerning said Paul Bedier. The Discipline Committee found the appellant guilty of misrepresenting the school improvement process report involving said Dale Bonner and of threatening said Paul Bedier that if he did not apply for transfer and resign as principal of the said Bulyea School the matter would be dealt with at the board table and that "it could get ugly". The Discipline Committee recommended that reprimand be imposed. The matter of sentence was dealt with by the Executive Committee of LEADS on August 8, l995, and the appellant received reprimand (to be placed on his file for period of five years) and fine of $2,500.00. The issues raised by this application may besuccinctly stated as follows: ISSUE NUMBER 1: -Did the Discipline Committee err in itsfindings of fact as set forth in grounds 3, 4 and 6 of thenotice of appeal? ISSUE NUMBER 2: -If the facts as found by the DisciplineCommittee are in fact true, do they constitute unprofessionalconduct as set forth in grounds 2 and 5 of the notice ofappeal? ISSUE NUMBER 3: -Did the Discipline Committee err in itsapplication of the burden of proof as alleged in ground number6 of the notice of appeal? ISSUE NUMBER 4: -Was the penalty imposed by the ExecutiveCommittee excessive as alleged in ground Number 7 of thenotice of appeal? In order to determine the said issues, the following factors will have to be considered: 1.What standard of review is appropriate, and should be applied to the decision of the Discipline Committee? 2.Applying said standard of review, are any of thegrounds of appeal sustainable? 3. If so, what remedy is available to the appellant? WHAT STANDARD OF REVIEW IS APPROPRIATE TO BE APPLIED TO THE DECISION OF THE DISCIPLINE COMMITTEE? Section 52 of the Act sets forth the jurisdiction of the judge during the review. It states: 52In hearing an appeal pursuant to section 51 the judge shall: (a)dismiss the appeal; (b) vary decision of the discipline committee or an order of the executive; (c) substitute his or her own decision or order for decision of the discipline committee or an order of the executive; (d) quash decision of the discipline committee or an order of the executive; (e) direct new hearing or further inquiries by the discipline committee or the executive; or (f) quash the finding of guilt; and may make any order as to costs that the judge considers appropriate. As one can readily see, the powers of the reviewing judge are broad. However, the section does not comment on the exact nature or extent of the review. In these circumstances, one must have regard for the case law in the area. Both parties have submitted briefs of law in support of their respective positions. Both parties have cited cases in support of their positions. It appears that they agree that the leading cases in the area are Stephen v. College of Physicians and Surgeons (Sask.) (1991), 1991 CanLII 7664 (SK QB), 95 Sask. R. 176 (Sask. Q.B.) and Brand v. College of Physicians and Surgeons (Sask.) (1990), 1990 CanLII 7711 (SK CA), 86 Sask. R. 18 (Sask. C.A.), which have read and considered. Also mentioned by counsel, which have read and considered, were the cases of Huerto v. College of Physicians and Surgeons (1994), 1994 CanLII 4900 (SK QB), 124 Sask. R. 33 (Sask. Q.B.); Sugarman v. Saskatchewan Association of Optometrists (1990), 86 Sask. R. 207 (Sask. Q.B.); Mackey et al v. Chiropractors' Association (Sask.) et al (1991), 1990 CanLII 7407 (SK QB), 88 Sask. R. 274 (Sask. Q.B.); Re Del Core and Ontario College of Pharmacists (1985), 1985 CanLII 119 (ON CA), 51 O.R. (2d) at pp. and (Ont. C.A.); Harper v. R. (1982), 1982 CanLII 11 (SCC), 65 C.C.C. (2d) 193 (S.C.C.); MacDonald v. R. (1976), 1976 CanLII 140 (SCC), 29 C.C.C. (2d) 257 (S.C.C.) and Yebes v. R., [1987] S.C.R. 18 (S.C.C.). In Stephen, considered the standard of review and the power of an appellate court when reviewing decision of disciplinary board. quoted with approval from Re Milstein and Ontario College of Pharmacy et al (No.2) (1976), 13 O.R. (2d) 700 (Ont. H.C. (Div. Ct.)) at p. 707, where at p. 191 stated: The power of self-discipline perpetuated in the enabling legislation must be based on the principle that members of the profession are uniquely and best qualified to establish the standards of professional conduct. Members of the profession can best determine whether the conduct of fellow member has fallen below the requisite standards and determine the consequences. The peers of the professional person are deemed to have and, indeed, they must have special knowledge, training and skill that particularly adapts them to formulate their own professional standards and to judge the conduct of member of their profession. No other body could appreciate as well the problems and frustrations that beset fellow member. In Stephen, at pp. 191-92, also stated: As was observed in the case of Re Singh and College of Nurses of Ontario (1981), 1981 CanLII 1717 (ON SC), 123 D.L.R. (3d) 713 (Div. Ct.), at p. 714, however wide may be the powers of the appellate court, they do not amount to general warrant to retry cases decided by the Discipline Committee. It was also stated that the appellate court should not attempt to weigh the evidence which formed the basis for the conclusions by the Discipline Committee, unless there was no evidence to support the conclusion or the evidence was contrary to the conclusion which was reached. similar line of reasoning was expressed by the Court of Appeal of Saskatchewan in Brand. In Brand the Court was faced with decision of the Discipline Committee of the College of Physicians and Surgeons. Mr. Justice Wakeling considered the nature of the review that the Court should conduct in these matters and held at p. 34, with the majority of the Court agreeing, that: This Court has also dealt with the issue on several occasions, perhaps most recently in Green v. College of Physicians and Surgeons (1986), 1986 CanLII 3238 (SK CA), 51 Sask. R. 241 at 258: "The matter was not considered in detail during argument, but it is appropriate at this stage that consideration be given to the role which this court ought to play in the determination of this appeal. It is my view that this appeal is in no sense retrial of the issue but is to be considered on the same basis as any other civil appeal. It is not for this court to substitute its discretion for that of the appeal tribunal. We should leave the appeal tribunal's judgment alone unless we were to conclude that there was no evidence available to reasonably support the conclusions which it reached or that the inferences which were drawn were clearly wrong or it had misdirected itself in respect of point of law so as to warrant the conclusion that the judgment rendered could not be supported." The same factors now prevail in an appeal to Queen's Bench judge. The prime responsibility for the credibility of witnesses, as well as the determination of the facts, remains the function of the Discipline Committee. These functions have traditionally belonged to the trier of the facts: the trial judge, the jury, or entities such as Discipline Committee, who have first hand visual as well as audio contact with the parties and their witnesses. That responsibility is so well accepted and based on such sound reason that it would take clear and compelling legislation to require that such principle of first line responsibility be abandoned or materially diluted. There is no indication in the above legislation which appears to call for change in this traditional approach. The fact that an appellate judge may substitute his or her decision for that of the Discipline Committee or an order of the executive does not mean that the appellate court's view of the facts and credibility of witnesses supersedes in any way the role of the Discipline Committee unless the appellate court finds that there were inappropriate inferences drawn, conclusions reached which were not supported by the evidence, or misdirection on point of law. It simply clothes the appellate court with sufficient authority to overturn decision of the Discipline Committee where any of the factors above noted exist. similar view was expressed by Mr. Justice Halvorson in Huerto v. College of Physicians and Surgeons, supra, where at p. 48 he is reported as follows: Despite the breadth of this authority, the Court will be slow to substitute its opinion on the evidence for that of the committee. These transcript appeals should be considered in much the same fashion as summary conviction appeals. Of these, the court in R. v. Andres, [l982] W.W.R. 249; Sask. R. 96 (C.A.) stated at p. 251: "Thus, while the appeal court may differ with the trial judge as to the facts established by the evidence, it will disturb his findings of fact only if it is satisfied that such findings are not supported by the evidence or that the conclusion reached by the trial judge is so clearly wrong as to make that decision unreasonable." (emphasis added) Therefore, review of the Discipline Committee's decision will require that ensure that there is evidence to support the findings of fact made by the said Committee. It does not allow me to substitute my own views and opinions if they differ from that of the Committee unless the decision of the Committee is so clearly wrong, or not supported by the evidence, or that the conclusions reached by the Committee are so clearly wrong as to make their decision, and this is so with respect to each of the charges against the appellant, unreasonable. also note that the appellant suggests in his brief of law that the powers conferred on the Court by s. 52 of the Act are extremely broad and in fact [are] far more reaching than that found in s. 62(3) of The Medical Profession Act, 1981, c. M-10.1, which is the section relied upon in Stephen and Huerto. review of s. 62(3) of said The Medical Profession Act, 1981, satisfies me that it was, and is, the same today, as it was then. It provides as follows: 62(3) On hearing the appeal, the court may: (a) confirm the decision of the council; (b) vary the decision of the council; (c)substitute its own decision for that of the council; or (d)quash the decision of the council; (4) Where the court quashes the decision of the council, it may direct new hearing or further inquiry by the discipline committee. comparison of s. 52 of the Act, with s. 62 of The Medical Profession Act, l981, satisfies me that the two sections are virtually the same except for minor changes in wording or format. am, therefore, of the view, that the jurisprudence under said The Medical Profession Act, 1981, to the extent of the cases cited, is applicable to the standard of review open to me in this case. APPLYING SAID STANDARD OF REVIEW, ARE ANY OF THE GROUNDS OF APPEAL VALID? The notice of appeal, supra, sets forth several grounds of appeal. Grounds and are general in nature and relate to findings of fact, standard of proof and the decision of the Discipline Committee generally. Grounds and relate to the charges against the appellant respecting Dale Bonner and Paul Bedier. Grounds and relate to the issue of professional misconduct by the appellant. Ground relates to the penalty imposed. propose to deal with these grounds in the order in which have grouped them. GROUNDS AND The Discipline Committee clearly recognized the standard of proof required to be established by the respondent. In its Final Report to the Executive Committee, under the heading "Consideration of the Evidence" it stated, at p. thereof: In their closing submissions, both counsel directed the Committee to court decisions dealing with the burden of proof applicable in disciplinary proceedings alleging professional misconduct. In considering the evidence and reaching its conclusions in this case, the Committee was mindful of the fact that simple balance of probabilities is not sufficient standard, given the gravity of the charges and the serious impact which finding of professional misconduct can have on the career and livelihood of member. The Committee therefore applied the onus of proof as defined by the Saskatchewan Court of Appeal in Camgoz v. College of Physicians and Surgeons (1989), 1989 CanLII 4432 (SK CA), 74 Sask. R. 73, namely: "to establish the allegations by fair and reasonable preponderance of credible testimony" with the standard of proof being "the highest possible standard applicable to civil case." At p. of its said Final Report to the Executive Committee the Discipline Committee clearly identified the evidence, and the standard applied thereto, by which it had reached its conclusions. It clearly considered only direct evidence and did not consider hearsay evidence in reaching its conclusions. It reported as follows: The Discipline Committee heard and thoroughly considered all of the evidence that was presented by these witnesses. Through that process, the Discipline Committee identified all evidence that was considered to be of significant relevance to determination of the facts alleged in the charges. That evidence is outlined in the sections that follow. All other evidence, although not specifically listed, was considered by the Committee with respect to the other issues raised by counsel and in particular the issues of: (i) Mr. E. Paquin's intention or state of mind, and (ii) whether the conduct alleged, in all of the circumstances, was sufficiently serious to constitute "professional misconduct". Although considerable hearsay evidence was heard during the course of the hearing, the Committee was mindful of the fact that such evidence is not sufficiently reliable to be used as proof of any of the required elements of charge which involves an allegation of professional misconduct. The Committee therefore based its findings, as indicated below, upon the direct evidence of the witnesses testifying and the exhibits as filed by the parties. mine) GROUNDS AND These grounds deal with the charges found against the appellant, and the penalties imposed in respect of each of them. He was found guilty of one count respecting each of Messrs. Bonner and Bedier. propose to deal with each of them separately. CHARGE FOUND AGAINST MR. PAQUIN RE: BONNER The appellant was charged as follows: Misrepresenting to Mr. Bonner that the school improvement process report for the Last Mountain School Division dated March, 1995, made by the Saskatchewan Professional Development Unit was critical of his leadership and recommended that he be transferred, when no such reference was made. The finding of the Discipline Committee was as follows: The Committee finds that Mr. E. Paquin intentionally caused Mr. D. Bonner to believe that he was conveying the substance of the written report prepared by Mrs. G. Dueck on the School Effectiveness Process at the meeting of April 10. The Committee is satisfied that by both his actions and the oral statements made at this meeting, Mr. E. Paquin misrepresented to Mr. D. Bonner that the report was critical of his leadership and recommended that he be transferred, when in fact this was not true. The Discipline Committee noted the significant admissible evidence, produced by the respondent, in coming to its determination and conclusions on this charge. This charge results, in part, from the conducting of "School Effectiveness Process" on the Punnichy, Saskatchewan, elementary school of which Mr. Bonner was principal. Concerns had been raised by parents of children attending the school over the handling of several issues within the school. These included, amongst others, lack of motivation of the students, discipline, resource allocation and leadership. review of the school, in the form of "School Effectiveness Process" was to be conducted to "bring about the necessary changes in school with an end to improving learning outcomes, fostering teacher growth and collegiality and serving as basis for both short and long term goal setting and decision making." Mr. Paquin met with the executive director of the Saskatchewan Professional Development Unit: Mrs. Gwen Dueck, to have this carried out and she conducted the study. In March of 1995 Mrs. Dueck faxed to Mr. Paquin draft report along with list of recommendations. This was followed up by telephone conversation in which Mr. Paquin and Mrs. Dueck discussed the recommendations. This telephone conversation also included general conversation about the leadership of the school. Mr. Paquin then met with Mr. Bonner on April 10, 1995, and read to him from the notes he had earlier made regarding the report and his conversation with Mrs. Dueck. Mr. Paquin then discussed with Mr. Bonner the options of resigning as principal of said elementary school and transferring elsewhere. The Committee found that the written notes of Mr. Bonner misrepresented the School Improvement Process and the fact that he read them during the meeting with Mr. Bonner, without providing Mr. Bonner with copy thereof, increased the impact of the comments and caused Mr. Bonner to accept the comments as formal recommendations of the report. The Discipline Committee further found that this was what Mr. Paquin intended. The Discipline Committee concluded at p. 14 of its Final Report to the Executive Committee that: In order to achieve his desired end of changing the leadership at Punnichy Elementary School, Mr. E. Paquin made improper use of his candid discussions with Mrs. G. Dueck when he discussed the outcome of the study and recommendations in the S.P.D.U. report with Mr. D. Bonner on April 10. He conveyed the substance of these candid discussions to Mr. D. Bonner, while leading Mr. D. Bonner to believe that these were the formal recommendations made in the written report. The Committee is satisfied that in doing so, Mr. E. Paquin intentionally misrepresented the contents and recommendations set out in the written report as indicated in this charge. The appellant contends that when the conversation is considered in context, he had not acted inappropriately. He testified that he had had discussions with Mrs. Dueck which suggested general change of staff to revitalize the school. He further testified that he believed the Division Board, the Local Board, and the Band Committee would support such change at the school, and that the Division Board was considering transfer of Mr. Bonner. He also testified that he believed that the material he reviewed with Mr. Bonner was contained in either the report of Mrs. Dueck or in his discussion with her. He further testified that he never actually opened the draft of the report during his discussion with Mr. Bonner nor did he give it to Mr. Bonner to read. When asked about this charge specifically, he testified that he did discuss the Dueck report in terms of its being critical of Mr. Bonner's leadership but he denied that he suggested transfer. His evidence in this regard varies from that of Mr. Bonner. Mr. Bonner testified that transfer was discussed in the context of the Dueck report and its recommendations. Mr. Bonner also testified that he was not aware of Mr. Paquin having had conversation with Mrs. Dueck. He testified that he believed the notes Mr. Paquin was referring to were the report itself or notes from the report. The Discipline Committee after hearing, and seeing, both the appellant, and Mr. Bonner, (and others), testify, chose to accept the evidence of Mr. Bonner over that of the appellant. full and complete review of the transcript of the proceedings before the Discipline Committee satisfies me that its findings of fact, vis-�-vis the evidence of the appellant and Mrs. Gwen Dueck, is supported by the admissible evidence. Mrs. Dueck repeatedly stated in her evidence that she was not conducting staff evaluation. The appellant was well aware of her role. She also testified that while candid conversations took place between her and the appellant she did not make any specific comments on the nature of Mr. Bonner's leadership at the Punnichy school. That comments on leadership were general in nature and any conversation regarding the transferring of Mr. Bonner, she understood, were related to multitude of reasons which she was not privy to and were not related to her report or comments. This conflicts with the notes made by the appellant regarding his understanding of their conversation. Again, the Discipline Committee chose to accept the evidence of Mrs. Dueck over that of the appellant. This was finding of credibility. It is amply supported by the evidence. Taken as whole, cannot find that there were any inappropriate inferences drawn, conclusions reached which were not supported by the evidence, or, misdirection on point of law with respect to this charge against the appellant. There is therefore no basis upon which this ground of appeal can succeed. CHARGE FOUND AGAINST MR. PAQUIN RE: BEDIER This charge reads as follows: Threatening Mr. Bedier that if he did not apply for transfer and resign as principal, that the matter would be dealt with at the board table and that "it could get ugly". The Discipline Committee found, at p. 21 of its Final Report to the Executive Committee, that: The Discipline Committee finds that Mr. E. Paquin did threaten Mr. P. Bedier that if he did not submit his transfer request and resignation from the principalship that the matter would be dealt with at the Board table and that "it could get ugly". Mr. Bedier, at all times material, was the principal of the Bulyea, Saskatchewan, elementary school. He acknowledged that lack of confidence in him had developed in the 1994/95 school year. Several issues regarding his administrative duties had been raised. Mrs. Meyers, the Assistant Director, had suggested on March 31, l995 that he should consider applying for transfer to Strasbourg, Saskatchewan, where position for French teacher was open. This suggestion was made again by Mrs. Meyers on April 4, 1995. Mr. Bedier said he would consider such transfer. On April 5, 1995, the appellant telephoned and spoke with Mr. Bedier. Mr. Bedier testified that he was advised that he should apply for transfer within week. If he did not transfer, the matter would be dealt with at the board table and that it could get ugly. Mr. Bedier further testified that the appellant had stated to him that this was an opportunity for him to save face. After conversations with other persons, Mr. Bedier submitted his resignation. The appellant does not appeal from the finding of fact that he made the statement "it could get ugly". He, however, submits that there was no evidence to support the interpretation placed thereon by the Discipline Committee. The appellant submits that there was no evidence that he had any personal problem with Mr. Bedier and that [he said] the period of intensive supervision that would follow if transfer was not received would be an unpleasant process. The Discipline Committee accepted the evidence of Mr. Bedier regarding the April 5, 1995 telephone conversation. They accepted that the appellant had not discussed the actual process of not transferring and the intensive supervision that would follow. They accepted that the appellant said things "would become ugly" if Mr. Bedier did not transfer. They accepted the evidence of Mr. Bedier over that of the appellant. When considering the evidence which the Discipline Committee accepted, the nature of the telephone conversation of April 5, 1995, and the reaction of Mr. Bedier thereto, they concluded that the appellant was threatening Mr. Bedier in order to receive the transfer request and further concluded that he intended that result. Accepting the evidence as it did, it logically follows that it inferred that the conversation was designed to pressure Mr. Bedier into tendering his resignation and requesting transfer. That the impugned statement was not made in the context of future supervision that Mr. Bedier would face and the Discipline Committee had evidence that the appellant was anxious to receive the resignation in order to recruit new principal. The Discipline Committee in its Final Report to the Executive Committee, at p. 22, had this to say: In making this finding, the Committee takes note that the statements made by Mr. E. Paquin were not made professionally that is, in the context of discussing the established process which would normally be followed in the event that Mr. P. Bedier's resignation and request for transfer were not forthcoming. Rather, Mr. E. Paquin intended to convey that it would get uncomfortable or embarrassing for Mr. P. Bedier personally if he did not comply with the request for his resignation and transfer. [The Committee finds that Mr. E. Paquin's comments were not formal and professional] but were personal, suggesting harm to Mr. P. Bedier's personal and professional reputation through exposure of wrongdoing if he did not comply with the request. The Committee is satisfied, not only that Mr. P. Bedier did feel threatened and intimidated, but that it was Mr. E. Paquin's intention that he should feel threatened and intimidated with the objective of pressuring him into submitting his resignation and request for transfer sooner than he otherwise might have on his own initiative. Taken as whole, cannot find that there were any inappropriate inferences drawn, conclusions reached which were not supported by the evidence, or, misdirection on point of law with respect to this charge against the appellant. There is, therefore, no basis upon which this ground of appeal can succeed. GROUNDS AND This leaves for consideration whether or not the impugned conduct on the part of the appellant amounts to professional misconduct such as to attract the penalty provisions of the Act. This requires careful consideration of: 1.Whether the actions of the appellant coerced the resignations of Messrs. Bonner and Bedier; and if they did 2.Whether such actions amounted to professional misconduct. The Discipline Committee determined that the actions of the appellant were intended by him and had the effect of obtaining the resignations of Messrs. Bonner and Bedier. While noting that Messrs. Bonner and Bedier had had an opportunity to consider their positions, and to discuss same with colleagues, the Committee, however, were satisfied, that notwithstanding these factors, the actions of the appellant had forced them to resign and request transfer when they might otherwise not have done so. The appellant testified that Mr. Bonner was not coerced as he was candidly told of the problems with his principalship and that these concerns were supported by the facts. That, relating these facts to Mr. Bonner, could never be considered coercion. The appellant also testified that Mr. Bedier was well aware of his administrative difficulties and had considered other positions. He was informed by others that he should not submit his resignation unless he felt he wished to. The appellant suggests that these factors militate against any finding of coercion. Important to determining whether Messrs. Bonner and Bedier had been coerced is consideration of the context in which the comments by the appellant were made to them. They were informed by their supervisor, person in authority, that their work was unsatisfactory. He requested that they transfer. He left them with the impression indeed he so told them that they lacked support in their local communities. Mr. Bedier was told threatened that things would "get ugly" if he did not leave. While other options may have been open to them, they may not have appeared realistic in the face of the appellant's their supervisors" comments. On the whole of the evidence that of Messrs. Bonner and Bedier, and others, including the appellant the Committee found that Messrs. Bonner and Bedier felt they had to submit their resignations. This determination is supported by the evidence, and is reasonable one. PROFESSIONAL MISCONDUCT The Discipline Committee, in its Final Report to the Executive Committee, at p. 23, cited the definition of professional misconduct that is found in s. 37 of the Act. It reads as follows: 37 Professional misconduct is question of fact but any matter, conduct or thing, whether or not disgraceful or dishonourable, that: (a) is harmful to the best interests of the public or the members; (b) tends to harm the standing of the profession of educational administration; (c) is breach of this Act or the bylaws; or (d) is failure to comply with an order of the professional relations committee, the discipline committee or the executive; [is professional misconduct within the meaning of this Act.] The Act itself states that "Professional misconduct is question of fact" but any matter or thing, such as those cited, can be construed as being "professional misconduct". The Discipline Committee in its said Final Report noted that this was the first hearing of complaint under the Act. That there was no precedent to rely upon. It stated it relied on the definition in the Act and also referred to the general definition of professional misconduct in cases such as Pierce v. Law Society of British Columbia (1993), 103 D.L.R. (4th) 233 (B.C.S.C.) and Pearlman v. Manitoba Law Society Judicial Committee, [1991] S.C.R. 869 (S.C.C.), which held, at p. 24 of the said Final Report: Professional misconduct is wide and general term. It is conduct which would reasonably be regarded as disgraceful, dishonourable or unbecoming of member of the profession by persons of integrity and good reputation amongst the membership. In determining this issue, the Discipline Committee was also mindful of the limitations inherent in this definition. It held that the term did not include simple errors of judgment or even negligence because neither possessed the character of culpability or moral blameworthiness which is essential to finding of professional misconduct. The Discipline Committee found that the misrepresentation made by the appellant to Mr. Bonner and the threat made by him to Mr. Bedier did constitute professional misconduct. Using the report (of Mrs. Dueck) for purpose for which it was not intended, and misrepresenting its contents, the Discipline Committee found that it caused harm to the professional standing of LEADS and the profession of educational administrators, and that the threat to Mr. Bedier tarnished the image of the profession with teachers and the electors within the school division, and beyond. Considering the evidence as a whole, I am unable tosay that the Discipline Committee erred in its interpretationof "professional misconduct" or its application thereof to thefacts as found by it. Facts, which in my opinion, were reasonably open to it to find. For all of the foregoing reasons I dismiss theappeal. This leaves for consideration the question of penalty. The appellant submits that the "disposition imposed by the Executive Committee was excessive". He requests that the penalty be reduced. The Discipline Committee recommended the following penalty be imposed on the appellant: The Discipline Committee recommends that Mr. E. Paquin be formally reprimanded through letter transmitted by the President and Executive Director of L.E.A.D.S., that letter to be maintained on file with L.E.A.D.S. for period of five years, and that the same letter be copied to Mr. E. Paquin's employer and the complainant. On August 8, 1995 the LEADS Executive met and heard representations from both the representative of the Investigation Committee and Mr. Paquin's counsel. Thereafter, it imposed the penalty, supra. The appellant suggests that the penalty is excessive [considering Mr. Paquin had to travel to Saskatoon and Waskesiu, Saskatchewan, to deal with this matter] and that no written reasons were given for this decision. He also submits that the fine should be set aside as he successfully defended most of the allegations against him, has incurred significant costs in defending against these allegations, that the Committee had not recommended [such] fine, that he would be placed under significant amount of hardship if required to pay said fine, this was the first prosecution under the Act, he had no previous record, had only acted in his position for one year and lastly, the fact the Committee had stated its decision was designed to help newly appointed directors goes against the imposition of the fine. In Sugarman v. Saskatchewan Association of Optometrists, supra, Barclay J. of this Court held at p. 213: [32] The fine imposed by the Discipline Committee was the maximum authorized by the statute. In considering the appeal against penalty the courts have consistently held that the court should interfere with decision of the Discipline Committee only where there has been very serious error committed. [33] In the recent decision of Barik v. College of Physicians and Surgeons (Sask.) Q.B. 123/89, J.C. Yorkton, December 7, l989, Osborn, J. (as yet unreported), it was stated as follows: "The attitude the Court should take is demonstrated clearly in the decision Re: Milstein and Ontario College of Pharmacy (No.2) (1977), 1976 CanLII 858 (ON SC), 13 O.R. (2d) 700 (Ont. D.C.), Mr. Justice Cory, speaking for the majority, states at page 707: ". The power of self-discipline perpetuated in the enabling legislation must be based on the principle that members of the profession are uniquely and best qualified to establish the standards of professional conduct. Members of the profession can best determine whether the conduct of fellow member has fallen below the requisite standards and determine the consequences. The peers of the professional person are deemed to have and, indeed, they must have special knowledge, training and skill that particularly adapts them to formulate their own professional standards and to judge the conduct of member of their profession. No other body could appreciate as well the problems and frustrations that beset the fellow. "Given such unique qualifications for judgment and discipline of fellow members, the decisions and penalties of professional discipline committees ought not to be lightly interfered with." "The Ontario Divisional Court expressed similar view in relation to the discipline of lawyers in Spring v. Law Society of Upper Canada (1988), 28 O.A.C. 375, at page 379, Mr. Justice LaBrosse speaking for the majority stated: "I am mindful that the Disciplinary Tribunal is in the best position to determine the appropriate penalty in cases of professional misconduct and where it bases the penalty upon the evidence this Court should not interfere with its decision." "In Percheson v. College of Physicians and Surgeons (Ont.) (1985), 1985 CanLII 2062 (ON SC), 10 O.A.C. 76 (Ont. D.C.), the Court held at page 78 that the Court should interfere with the penalty imposed by Discipline Committee only if it is "very extreme case"." (emphasis added) Further, in Crawford v. Saskatchewan College of Physical Therapists (1986), 1986 CanLII 3566 (SK QB), 48 Sask. R. 155 (Sask. Q.B.) Matheson J. of this Court stated at p. 157 as follows: [13] As was stated in Page v. Saskatchewan Registered Nurses Association (1983), 1983 CanLII 2246 (SK QB), 26 Sask. R. 108, professional council is in the best position to know the seriousness of the misconduct of which member has been found guilty. Consequently, court should not interfere lightly with the sentence imposed by professional tribunal unless it appears that the tribunal has erred in some matter of high degree or principle: Re Solicitor (1924), 93 L.J.K.B. 761. [14] No error in principle by the Council was demonstrated. Although the appellant has complained that, from subjective aspect, the suspension order is harsh, the members of Council must have been aware of the effect which suspension would have on fellow professional. Here, similarly, the members of the Executive Committee of LEADS must have been aware of the effect which its decision would have on the appellant. They, notwithstanding, saw fit to impose it. Have they, in so doing, erred in some matter of high degree or principle? The courts in Manitoba have also held that it is difficult to interfere with the decision of Disciplinary Committee. In Lazar v. Association of Professional Engineers of Manitoba and Council of Association of Professional Engineers of Manitoba, 1971 CanLII 1003 (MB QB), [1971] W.W.R. 614 (Man. Q.B.), Matas J. states at p. 625: In McCoan v. General Medical Council, [1964] W.L.R. 1107, [1964] All E.R. 143, it was held at p. 147: "Their lordships are of opinion that Lord Parker, C.J., may have gone too far in Re Solicitor (No. 8), [1960] Q.B. 212 at 221, [1960] All E.R. 621 at 624, when he said that the appellate court would never differ from sentence in cases of professional misconduct, but their lordships agree with Lord Goddard, C.J., in Re Solicitor (No. 2), [1956] W.L.R. 1312, [1956] All E.R. 51 at 517, when he said that it would require very strong case to interfere with sentence in such case, because the Disciplinary Committee are the best possible people for weighing the seriousness of professional misconduct. No general test can be laid down, for each case must depend entirely on its own particular circumstances. All that can be said is that, if it is to be set aside, the sentence of erasure must appear to their lordships to be wrong and unjustified." (emphasis mine) review of s. 47 of the Act shows that the Executive Committee is given wide latitude in the nature of the punishment that it may impose upon person found guilty of professional misconduct. The Executive Committee are not bound by the recommendations of the Discipline Committee. They are only recommendations guide. The Executive Committee could have invoked the harsher penalty of expulsion from the league and that his name be struck from the register; it could have suspended the appellant for specified period of time; it could have recommended to the Minister that after the time for an appeal has expired or any appeal taken has been dismissed, the minister suspend or cancel the appellant's teaching certificate; it could have imposed fine in specified amount not exceeding $5,000.00; it could have ordered the appellant to pay the investigative and hearing costs; it could have ordered the appellant to pay its legal and witnesses' costs. This it did not do. cannot say that the Executive Committee erred in some matter of high degree or principle. I cannot say that bythe penalty it imposed the Executive Committee was wrong andunjustified. The appeal against penalty is dismissed. This raises the issue as to costs. By s. 51(l)(a) of the Act, member who has been found guilty of professional misconduct may appeal to judge of the court by serving the executive director of LEADS with copy of the notice of appeal and filing it with the local registrar of the court. This the appellant did. By s. 51(2) of said Act, on receipt of notice of appeal, the executive director is required ["shall file with the local registrar true copy of"] to file with the local registrar of the court, the several documents, including the formal complaint and the transcript of the evidence, presented to the Discipline Committee or the executive. Then, by s. 51(3) it is provided that the appellant, or his solicitor, may obtain from the executive director copy of the documents filed with the local registrar pursuant to s. 51(2) of the Act on payment of the costs of producing same. The Act is silent as to who shall bear the costs of providing to the court the documents filed pursuant to s. 5l(2) of the Act. Are they costs in the cause? Are they costs to be borne by the executive director of LEADS in any event of the cause? If they are costs in the cause, then why the need for s. 51(3)? Why is it not provided that upon receipt of notice of appeal the executive director of LEADS shall file with the local registrar the documents referred to in s. 51(2) of the Act and shall also provide the appellant with copy thereof, and that the costs of producing said documents shall become costs in the cause unless otherwise ordered? am of the view that if the Legislature had intended the costs of what is statutorily mandated to be provided to the local registrar are to be costs in the cause, the Legislature would have said so. Absent clear and explicit language to that effect, am of the view that ought to hold, and do hold, that the costs of providing the statutorily mandated materials pursuant to s. 51(2) of the Act ought to be borne by, in this case, LEADS. If am in error in so holding, I, in any event, pursuant to the inherent jurisdiction of this Court, and pursuant to s. 52 of the Act that ". may make any order as to costs that the judge considers appropriate", direct that in the particular circumstances, the costs of providing the materials pursuant to s. 51(2) of the Act be borne by the respondent. Subject to what has been stated in the immediately preceding paragraph hereof, the respondent will be entitled to recover its costs of, and incidental to, this appeal from the appellant, to be taxed on Column 3. J. Q.B.G. A.D. 1995 No. 2983 J.C.R. IN THE QUEEN'S BENCH JUDICIAL CENTRE OF REGINA IN THE MATTER OF THE LEAGUE OF EDUCATIONAL ADMINISTRATORS, DIRECTORS AND SUPERINTENDENTS ACT, 1991, S.S. 1990-91, C. l- 9.02 AND EUGENE PAQUIN, DIRECTOR OF EDUCATION FOR THE LAST MOUNTAIN SCHOOL DIVISION, IN THE PROVINCE OF SASKATCHEWAN BETWEEN: EUGENE PAQUIN and THE LEAGUE OF EDUCATIONAL ADMINISTRATORS, DIRECTORS AND SUPERINTENDENTS OF SASKATCHEWAN RESPONDENT K.A. Lang for the appellant R.A. Robertson for the respondent ADDENDUM GROTSKY J. June 27, 1996 The concluding paragraph of my judgment dated May 31, 1996, shall be amended to read as follows: Subject to what has been stated in the immediately preceding paragraph hereof, the respondent will be entitled to recover its costs of, and incidental to this appeal, from the appellant, to be taxed on Column 3.

A Director was charged with professional misconduct for coercing the resignation of two principals in his school division. The Discipline Committee found the appellant guilty of misrepresenting the school process report involving the first principal and of threatening the other principal that if he did not apply for a transfer and resign the matter would be dealt with at the board table and that 'it could get ugly'. The Executive Committee of LEADS issued a reprimand to be placed on his file for five years and a fine of $2,500. At issue was whether the Discipline Committee erred in its findings of fact and the burden of proof, whether the facts, if true, constituted professional misconduct and whether the penalty imposed was excessive. HELD: Appeal dismissed. 1)The legislation does not appear to call for a change in the traditional approach. The fact that an appellate judge can substitute his or her decision for that of the Discipline Committee or order of an executive does not mean that the appellate court's view of the facts and credibility of witnesses supercedes in any way the role of the Discipline Committee unless it finds there were inappropriate inferences drawn, conclusions reached which were not supported by the evidence, or a misdirection on a point of law. None were found in either case. The Discipline Committee did not err in its interpretation of 'professional misconduct' or its application to the facts. 2)Section 52 of the LEADS Act and s62 of the Medical Profession Act, 1981 are virtually the same except for minor changes in wording and format. The jurisprudence under the Medical Profession Act was applicable to the standard of review in this case. 3)The penalty imposed was not wrong or unjustified. Section 47 of the LEADS Act gives the Executive Committee wide latitude in the nature of punishment that it may impose upon a person found guilty of professional misconduct. The Executive is not bound by the recommendations of the Discipline Committee. They are only guidelines. 4)The Act is silent as to who shall bear costs of providing the documents filed pursuant to s51(2) of the Act. If the legislature had intended the statutorily mandated costs to be costs in the cause it would have said so. LEADS should bear the costs in this case. In any event pursuant to the court's inherent jurisdiction and pursuant to s52 of the Act the costs of providing the materials were to be borne by the respondent. 5)Subject to the above the respondent was entitled to costs of and incidental to the appeal.ADDENDUM to TWL QB96220. The concluding paragraph was amended to read: Subject to what has been stated in the immediately preceding paragraph hereof, the respondent will be entitled to recover its costs of, and incidental to this appeal, from the appellant, to be taxed on Column 3.

c_1996canlii6986.txt

nan QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2017 SKQB 219 Date: 2017 07 17 Docket: FLD 269 of 2008 Judicial Centre: Saskatoon (Family Law Division) BETWEEN: MEGAN ASHLEY WOLFE and SHAWN SCOTT DIEDERICHS and COLLEEN WOLFE THIRD PARTY Appearances: (Megan A. Wolfe deceased) Shawn S. Diederichs appearing on his own behalf Davin R. Burlingham appearing for the third party JUDGMENT WILSON J. July 17, 2017 Introduction [1] The third party in this matter is the maternal grandmother of the two children, Gage Arthur Diederichs [Arty], born September 18, 2006 and Haydn Lee Dion Wolfe, born May 1, 2008. The respondent, Shawn Diederichs, is the biological father of the two children. Sadly, the petitioner, Megan Wolfe, died of cancer on January 19, 2015. She was the biological mother of the two children. [2] The grandmother argues she is person of sufficient interest with respect to the two boys. Her position is that she and the father should have joint custody of the boys but her home be the children’s primary residence. She also seeks an order providing her with sole decision-making authority regarding medical care, counselling and education. She is willing to provide the father with parenting time with the children. [3] The father takes the position that it would be in the best interests of the children to move from the primary care of the grandmother to his primary care. He seeks an order that he have custody of the children. He is not opposed to the grandmother having reasonable and liberal access with the children. [4] Finally, the grandmother requests an order obligating the father to pay child support for the children if she is successful in her request for primary care of the children. [5] The following issues must be determined: 1. Is the maternal grandmother person of sufficient interest with respect to the children; 2. If the grandmother is person of sufficient interest, what parenting arrangement would be in the best interests of the children; and 3. If conclude that the children should remain in the primary care of the maternal grandmother, what, if any, child support should be payable by the father to the grandmother. History of Proceedings [6] The mother and father lived together as common-law spouses from January 2005 until January 2008. After the parties separated the mother proceeded with Petition, issued August 26, 2008, claiming custody of the children. The father did not respond to the Petition and was noted for default on October 7, 2008. However, the father subsequently obtained the services of counsel, and motion was made to set aside the noting for default. With the consent of counsel for the mother, the noting was set aside January 26, 2009. The father then filed his Answer and Counter-Petition. [7] In the father’s Answer he did not dispute the mother’s claim for declaration of parentage, her claim for child support or her request that the children be designated as beneficiaries of any life insurance, pension plan or health care plan he owned. He opposed the mother’s claim for custody and her request that she be allowed to appoint person to have custody of the children and be guardian of the property of the children upon her death. [8] The father brought notice of motion in March of 2009 requesting an interim order for joint custody of the two children. He also asked for liberal access to the children and declaration by the Court that he was the father of the children. After reviewing the extensive affidavit material filed and hearing from counsel on behalf of both the mother and father, Mills J. granted an interim order on March 27, 2009. Pursuant to the terms of the interim order, the father was declared to be the father of the two children. The father was granted supervised access to the two children through the Supervised Access Program offered by Family Justice Services. His access was stated to be “no more than one hour per week for the first month from the date of this order” and “no more than two hours per week for the next four months following”. [9] In August 2009 Family Justice Services filed with the Court the Supervised Access Program Reports regarding the father’s supervised access visits for the time period from April 2009 to August 2009. The issue of the father’s access was then argued before Dufour J. on October 9, 2009. Dufour J. amended the father’s access from supervised to unsupervised. He granted the father access every second weekend from Friday evening to Sunday evening. He did, however, specify that all access would be exercised in Saskatoon. Further, due to continuing conflict between the parents, exchange of the children was to be supervised by the Family Justice Services Supervised Exchange Program. Finally, Dufour J. indicated that the matter should once again come before the Court on December 11, 2009 for an update on the father’s access. [10] At the December 11, 2009 court appearance, Maher J. continued the access as set out by Dufour J. However, he added conditions to the father’s access. Specifically he ordered that the father not have in his residence alcohol or non-prescription drugs and not be under the influence of alcohol or non-prescription drugs for minimum of 12 hours prior to him obtaining access to the children and throughout the time the children were with him. [11] It was not until after the mother’s death in January 2015 that matters regarding the children came back before the Court. In May 2015 the grandmother brought an application requesting she be joined as party to the proceedings and she be named person of sufficient interest regarding the children. Further, she requested an interim order granting her sole custody of the children and an order that the father have supervised access to the children. [12] On May 20, 2015 Gabrielson J. made an interim order designating the grandmother as person of sufficient interest to the children and added her as party to the action. With respect to the father’s access with the children, he ordered the father’s access to be supervised by his aunt, Arlene Viden. [13] To their credit, the grandmother and father were able to come to an agreement and an interim consent order was granted by Dufour J. on July 15, 2015. In accordance with the terms of that order, the father’s access went from supervised to unsupervised and was to continue to occur every second weekend from Friday at 6:00 p.m. to Sunday at 6:00 p.m. The parties further agreed that the father would have telephone access to the children once per week. The matter was then adjourned over to the specific date of August 14, 2015. [14] On August 14, 2015 Tholl J. made an order that the grandmother and father have interim joint custody of the children. However, he granted the grandmother sole authority to make all decisions and provide all authorizations and consents regarding medical care, counselling and education for the two children. In his order he indicated that the father would have the right to be provided with all information regarding medical, counselling, educational issues directly from the care providers or the school or educational institution in the same manner as parent with sole custody would have. Finally, Tholl J. ordered the father would continue to have access to the children as ordered by Dufour J. and the children would continue to reside primarily with their grandmother. Tholl J. then directed the matter to proceed to an expedited pre-trial. [15] On January 7, 2016 the matter proceeded to pre-trial settlement conference. After settlement discussions, the parties agreed to an interim parenting arrangement whereby the father would have access with the boys for three weekends in row with no access on the fourth weekend. The parties also agreed to split the spring break and Easter holidays on an equal basis. This agreement was considered an interim arrangement to be tried by the parties. On November 16, 2016 the pre-trial conference was reconvened. Unfortunately, no agreement could be reached regarding the ongoing parenting arrangement for the two children. The matter then proceeded to trial before me. [16] At the conclusion of the trial made an order respecting access for the summer of 2017. In essence, set out specific dates such that the grandmother and the father would share the summer holidays in an approximately equal arrangement. Person of Sufficient Interest [17] There is an interim order designating the grandmother as a person of sufficient interest. This designation was made pursuant to s. 6 of The Children’s Law Act, 1997, SS 1997, c C-8.2. The designation of the grandmother as person of sufficient interest on an interim basis does not bind me when considering whether or not to grant person of sufficient interest status to the grandmother after having heard all of the evidence at trial. It is only if grant the grandmother the appropriate status that she can apply for custody of the children. Section 6.1 of The Children’s Law Act reads as follows: 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. [Emphasis added] [18] The Saskatchewan Court of Appeal decision in S.(G.E.) C.(D.L.), 2006 SKCA 79 (CanLII), 285 Sask 19 [S.(G.E.)], provides guidance regarding the steps must take when applications are brought by individuals other than mother or father. At para. 47 of that decision, Richards J.A. (as he then was) stated as follows: 47 The proper focus of an inquiry in relation to the “sufficient interest” question, in my view, is the nature of the relationship between the applicant and the child. The question of the child's best interests does not enter the analysis at that point. In determining whether non-family applicant is person with sufficient interest, the court should consider 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. Further, at least in relation to situations such as the one at issue in this appeal where there is no traditional family or blood relationship between the applicant and the child, it is necessary to consider whether the applicant can show settled commitment to the child and an intention to be continuing and meaningful presence in the life of the child. Overall, in the kinds of circumstances involved here, s. generally should be applied to screen out applicants who do not have both significant relationship with the child and demonstrated and settled ongoing commitment to the child. [19] The Court of Appeal in S.(G.E.) was dealing with request by third party “friend” of the children’s biological mother. He sought access visits with the mother’s twins. In the matter before me, the applicant is the maternal grandmother who is making an application for custody of the two boys. The two-stage analysis is equally applicable when family member pursues custody. [20] It is not disputed that the mother and father commenced cohabitating relationship in January 2005 when the mother was 18 and the father was 25 years old. The mother and father resided together until their separation in 2008. At the date of the separation the parties’ youngest child, Haydn, had not yet been born. The mother left with the oldest child, Arty, after police involvement. The father was charged with assault of the mother, but he denies having assaulted her. He did, however, acknowledge he signed peace bond to, as he put it, “get it over with”. The mother moved into the maternal grandmother’s home with Arty. The parties’ second child, Haydn, was born while the mother was continuing to reside with the maternal grandmother. As set out previously, the father’s initial access with the children was supervised and then proceeded to unsupervised access. [21] The mother and the two children lived with the maternal grandmother until the mother moved in with her boyfriend, Josh Melnyk, in approximately February 2011. The mother gave birth to twins from her relationship with Josh on November 26, 2011. The mother lived with Josh, the twins and Arty and Haydn until she went into the hospital in February of 2014. [22] The grandmother testified she looked after the children lot while the mother was living with her from 2008 to 2011. Further, even after the mother moved out to live with Josh, the maternal grandmother indicated that she stayed very involved. In February 2014 the children, Arty and Haydn, moved into the grandmother’s home as the mother needed to be hospitalized. The mother was in hospital for almost year before she passed away January 19, 2015. [23] The maternal grandmother was looking after the children full time, and she brought them to the hospital to see their mother every day. She ensured the children attended school and did everything she could to support the children as their mother was dying. [24] I have no difficulty determining that the maternal grandmother is a person of sufficient interest regarding Arty and Haydn. Not only does the grandmother have “blood tie” to the children, but the children have lived with the grandmother for significant portion of their lives. The grandmother has standing under The Children’s Law Act to bring her application for custody. CUSTODY AND ACCESS [25] The father was born July 7, 1979. He is now 38 years old. [26] The father currently resides at home in Saskatoon located at 3421 Harrington Street. There are four people living full time in the home. The father’s sister Tammy lives in the home and works days. The father’s nephew Gabriel lives in the home and attends school at Evan Hardy Collegiate. Finally, Arlene Viden, the father’s aunt, resides in the home on Harrington Street. She is currently not working as she is receiving disability as result of car accident. The father testified that the home is huge home located in friendly and safe neighbourhood. [27] The father filed photo album which includes number of photos of the home. There is delightful photo showing the front of the house with the children all dressed up for Halloween. There is photo of the bedroom where the two boys sleep when they stay at the father’s home. Each of the boys has single bed, and they appear to have decorated their room with movie posters. There is photo of the backyard of the home. There is large deck and large green space where the father said trampoline can be set up, and the kids can play catch. The large backyard is also used for activities like bonfires and tenting. photo taken in the summer of 2016 shows the father, the two boys and their cousin having fun in great tent in the back yard. [28] Across the street from the father’s home is very large park. The father testified that the children play in the park frequently. He also testified that there are three schools within walking distance of the home surrounding the park. If granted custody of the children, the father would move the children before September of 2017 from their current school into school closer to the home. [29] The father says he will remain in the Harrington Street home indefinitely. He acknowledged he was renting the home as opposed to purchasing the home but indicated that he had signed lease. Under cross-examination the father agreed he had moved many times in the past. The mother and father moved to Prince Albert when the mother was pregnant with the parties’ oldest son, Arty. The mother and father returned to Saskatoon and lived on Avenue North for few months and then separated while they were living at home on Avenue L. The father then lived at home on Wiggins Avenue, in trailer court on Rayner Avenue in Sutherland and has now moved into the College Park area with the home on Harrington Street. [30] The father is currently working in the construction industry doing renovations. He testified he is not employed for any one company and works on contract basis. He earns approximately $2,000 $3,000 per month. The father works from 9:00 a.m. until approximately 5:00 p.m. each day. [31] The father has had numerous employment positions in the past. When the parties were in Prince Albert, he worked for Husky Gas. He has subsequently worked for Night Owl Confectionery, Gas Plus, Saskatoon Wash World, Ramada Hotel in maintenance, the City of Saskatoon and Got Mold. [32] When asked why he had so many employment positions, the father said he had to quit or was fired as result of false allegations being made about him. He testified that the police were always showing up with accusations. This was during the time period after he had separated from the mother. He acknowledged, however, that not long after the mother left he was experiencing extreme stress and had to stop work as result of his health. [33] As set out previously, an interim order in this matter was granted in March 2009 specifying the father would have supervised access to the children. It is clear there were concerns regarding the father’s use of alcohol and drugs. Under cross-examination he conceded he smoked marijuana and “maybe” hashish. He acknowledged that when he was 20 he used crystal meth but said he never did meth on regular basis. [34] After the father’s supervised access returned to court for review, an order was made that he would have unsupervised access every second weekend from Friday to Sunday evening. The father’s access to the children was to be reviewed approximately two months later by the Court. The Maher J. order of December 11, 2009 continued the father’s every second weekend unsupervised access. However, there remained concerns about the father’s possible addictions to alcohol and drugs. Maher J. ordered the father not have any alcohol or non-prescription drugs in his residence. Further, Maher J. ordered the father not be under the influence of alcohol or non-prescription drugs for minimum of 12 hours prior to him obtaining access to the children and throughout the time the children were with him. [35] The father testified he stopped doing drugs approximately three years ago and only has one beer on occasion. He said “I do drink, but not lot”. He further clarified that the two children were not in his care when he would have drink. [36] In accordance with the order of Maher J. the father was to be having time with the children every second weekend. There is some conflict in the evidence as regards the father’s reliability in his access visits with the children. The grandmother testified that approximately year or so after his unsupervised visits started in December 2009, the father’s visits “fizzled out”. From the father’s evidence, which is not entirely clear, he was regularly having every second weekend with the children until August 2013. [37] It is not disputed that the mother entered into relationship with Josh Melnyk and commenced cohabitation with him in approximately February 2011. As set out previously, the mother and Josh had twins in November 2011. The mother and Josh originally lived in Saskatoon and subsequently lived in Young and Watrous, Saskatchewan. [38] The grandmother testified it was her understanding the father had not been involved with the children between 2011, when the mother moved in with Josh, until he expressed interest in seeing them month after the mother’s death. The father says he was seeing the children until August 2013 when the mother “abducted” the children. The father testified he could not contact the mother even though he sent messages to her numerous times. He said he went to the police, Social Services and the legal organization CLASSIC but was unable to get any help. However, the father admitted he was aware the mother had moved to Young, then to Watrous. He further acknowledged he knew where the grandmother resided at all times. Despite his knowledge, the father took no steps to bring this matter back to court requesting continuation of his access visits with the children. do not condone the mother’s actions of moving with the children without the consent of the father or an order of the Court. At minimum she should have given him notice of her intention to move. However, the father could have served her with an application for contempt by obtaining an order for substitutional service on the grandmother. am sure he would have been assisted by CLASSIC to represent himself. The father represented himself at trial. He was very prepared, and he more than adequately conducted his case before me. [39] If accept the father’s evidence, he was not seeing the children from August 2013 to May 2015, period of approximately two years. If accept the grandmother’s evidence, he was absent for approximately four years. It is likely that the father’s access visits were sporadic prior to the mother’s move. The father’s testimony on this point was weak. However, there are photos of the father with the children in the summer of 2011, the spring and summer of 2012, and the spring and summer of 2013. [40] In August 2014 the father found out the mother had been diagnosed with cancer. He connected with the mother via Facebook to express his sympathy and asked her to call him. This did not happen. Subsequently he saw the Facebook message saying that the mother had passed away on January 19, 2015. [41] The father first contacted the grandmother via Facebook January 21, 2015. After expressing his condolences, his message to the grandmother says that he is “hoping that we can talk about the boys. Would love to hear from them so much”. This was the day before the mother’s funeral. He did not hear back from the grandmother. [42] The father went to the children’s school on January 26, 2015 and showed the secretary copy of the court order providing him with every second weekend time with the children. He was told the principal would need to contact him. On February 5, 2015 he again went to the school. At that time he met with the grandmother and the school principal. He said he asked if his every second weekend time with the children could be reinstated. The grandmother said no. She told him the children were too emotional to see him at that time. [43] The grandmother applied for custody of the children. She was granted interim custody. By court order the father began seeing the children in late May 2015. His time with the children was supervised by his aunt, Arlene. His time with the children went from supervised to unsupervised by July 2015. In January 2016 the father and grandmother reached an agreement whereby the father would have access with the boys for three weekends in row with no access on the fourth weekend. In addition, the grandmother and the father were to split the spring break and Easter holidays on an equal basis. This agreement was considered an interim arrangement by the parties. This arrangement is currently the arrangement in place. However, at the conclusion of the trial, ordered specific access for each of the grandmother and the father during summer holidays of 2017. During this summer, the parties are having the children in their respective care in an approximately equal arrangement. [44] The father’s aunt, Ms. Viden, testified at the trial. She confirmed she currently resides with the father and two others in the home located on Harrington Street in Saskatoon. She has had the opportunity of watching the father parent the children during the times the children are in his care. She testified the father is very attentive, helping the children do homework, ride bikes and other activities. She believes the relationship between the father and the children to be “great”. She says the children are always saying “dad, dad, let’s do this”. She has seen the father attend to matters such as hygiene with teeth brushing and showers every night. [45] The father has been seeking custody of the children for some time. Originally he suggested that the children move to his full-time care as at July 1, 2016. His position at trial was that the children should be moved to his care during the summer of 2017 so that they could commence attending their new school, close to the father’s home, in September 2017. The father was clear he did not want to be weekend dad or what he referred to as “Disneyland dad”. [46] The father said he would have lot of help and support if the children were to come into his sole custody. He was of the view that the change in custody would go very smooth and that the children’s lives would “continue as normal” for the most part. The Grandmother [47] The grandmother is 48 years old and is the mother of four children. Her oldest child was the mother of Arty and Haydn. The grandmother resided in common-law relationship with Dion Palmer for 25 years. Dion was employed as long-haul truck driver. Sadly, Dion died in workplace accident in November 2013. The grandmother is not in relationship at this time. [48] The grandmother resides at 135 Avenue South in Saskatoon. She has lived in this home for 18 years. The grandmother owns the home in her sole name, and there is no mortgage on the home. There are five people currently residing in the home. In addition to the grandmother, Arty and Haydn, two of her other children live in the home. Macayla is 20 years old and works as nail technician. Kody is 24 years old and drives for moving company. [49] The grandmother had been working at pharmacy when the mother went into the hospital in February 2014. She left her employment to stay home to look after Arty and Haydn full time. The grandmother says it is not necessary for her to return to work as she receives monthly workplace insurance funds as result of the death of Dion. She will receive the approximate sum of $2,000 per month for the rest of her life. In accordance with the letter to the grandmother from the Workplace Safety and Insurance Board, the grandmother’s monthly payments will be adjusted every year to account for cost of living. In addition to the monthly pension funds, the grandmother received lump sum payment of $69,000. Finally, she receives approximately $1,000 for the children. [50] The grandmother has been one of or the primary care provider for the two boys for significant portion of their lives. The mother and the two boys moved into the grandmother’s home after the mother’s separation from the father and stayed from 2008 to 2011. The grandmother, once again, commenced providing daily care to Arty and Haydn when the mother went into the hospital in February 2014. After the death of the mother, the grandmother’s home has continued to be the primary residence for the children with the father commencing visits with the children in May 2015. In total, the children have resided with the maternal grandmother for period of seven years during their lives. The children are now 10 and 9 years old. It is apparent the youngest boy, Haydn, has known his grandmother’s home as the only home where he resides, as seven of his nine years have been spent living in the grandmother’s home. [51] During the year the mother was in the hospital prior to her death, the grandmother took the children to the hospital every day. The children were attending St. Marie Goretti school where they continue to attend. The oldest child, Arty, had been at that school before when the mother and two children were living with the grandmother after the mother’s separation from the father. [52] The grandmother provided numerous photos of the children. The first photos she submitted into evidence are heartbreaking. One of the photos shows the two boys with large teddy bear they brought to their mother in the hospital. The second photo shows their mother in her hospital bed with tiara on her head and the two boys standing around her bed. The next two photos show the urn containing the mother’s ashes. The grandmother said the urn sits on the fireplace hearth and the children decorate around the urn on Mother’s Day and other special occasions like Christmas. One photo shows two beautiful Mother’s Day cards beside the urn. [53] After their mother’s death, the grandmother wanted the children to attend counselling to deal with their grief. The father would not agree. The grandmother needed his consent before counselling became available to the children. According to the grandmother, the father said the children do not need counselling, “they just needed him”. The father, on the other hand, says he was unwilling to agree to counselling at Catholic Family Services as he wanted the children to move into his full-time care and do counselling at Sutherland school where he anticipated they would attend. At this time, the father was living in trailer court in Sutherland. [54] As result of the refusal of the father to allow for counselling, Tholl J. made an order on August 2015. Pursuant to that order, the grandmother was granted sole authority to make all decisions and provide all authorizations and consents regarding medical care, counselling and education for Arty and Haydn. After receiving this court order, the two children were in counselling for approximately year. The grandmother filed receipts showing her payments to Catholic Family Services for the counselling. The father did not contribute to the costs of the counselling. [55] The grandmother testified the boys were devastated by the loss of Dion in November 2013 and even more so with the loss of their mother in early 2015. She said the boys talk about their mother lot, as well as Dion. She is of the view the children are doing much better at this time, which is reflected in their school marks and achievements. [56] The grandmother wants the children to remain in her primary care and attend the same school they have been attending. She would like to see the children proceed on to college, and she has put money away, from the accident settlement, in order to pay for college. As regards the relationship with their father, the grandmother said she wanted the children to have good relationship with their father and believed she and the father had been working well together on planning holidays, changing the schedule to provide extra nights for the father and arranging phone calls between the children and their father. It is the grandmother’s view that the two children have settled into the current parenting arrangement and enjoy the time they have with their father. [57] The two children enjoy many activities while in the home of the grandmother. Each summer the children swim in the large above-ground pool in the grandmother’s backyard. They like to bake, and there are lovely photos of the boys making biscuits for supper as well as gingerbread cake at Christmas. The boys like to play games with the grandmother as well as Macayla and Kody. There are number of photos of the boys playing “Speak Out”. The children also go to parks and Ruckers with the grandmother or their aunt Macayla or uncle Kody. [58] According to witnesses who testified on behalf of the grandmother, the grandmother has very close relationship with the children. Macayla testified the boys are “so good” with their grandmother. Dave McCrea has been friend of the grandmother for 20 years. Dion and Mr. McCrea had close friendship, and after Dion died, Mr. McCrea maintained relationship with the grandmother. He was there to help the family after Dion died. His observations of the grandmother are very positive. He observes the grandmother interacting with the children as if she was their mother. It was his view the children feel safe with her and rarely misbehave. He indicated that if the grandmother ever needed anything, he and his wife, Melanie, would be there for her, day or night. [59] heard evidence from Darlene Callaghan, who described the grandmother as one of her best friends. Ms. Callaghan has weekly contact with the grandmother either by text, phone or visits. She has observed the interaction between the grandmother and the children and says they are “very close”. She testified that in her view Haydn was “nanny’s” boy. Further, she has witnessed their excitement to see the grandmother when they return from visit from their father’s home. She describes the grandmother as being very loving, supportive and kind. The Children [60] As set out previously, Arty is now 10 years old and Haydn is now years old. heard wonderful things about the children from the individuals who testified at trial. [61] The grandmother testified that the two children are quite different. She said that Arty is quieter than Haydn and more of thinker. She said Haydn was the “goofy” one. According to the grandmother, Arty is particularly interested in science and math and has told the grandmother that he wants to go to college. He has said he may want to be policeman, or perhaps join the army. The grandmother said Arty loves books and movies like The Chronicles of Narnia. [62] As regards Haydn, the grandmother said he liked school but not as much as his brother Arty. According to the grandmother, Haydn is very interested in cooking and consistently helps her make supper. He also watches cooking shows. Some days Haydn tells her he will go on to college and on other days he says he will complete grade 12 and then work as chef. [63] The children’s aunt, Macayla, confirms the grandmother’s testimony about the personalities of the children. She said that Haydn was very outgoing and adventurous. Arty is more laid back and more emotional. [64] Mr. McCrea saw the children couple weeks prior to the trial. It was his impression that the children were doing well and appeared happy. He said the children were “good kids”. Ms. Callaghan remarked that the children were very polite, very well-behaved, kind and generous. [65] The father talked lot about the activities he and the children do when the children are in his care. He did not provide his view as to the children’s personalities. Likewise, his aunt, Ms. Viden, talked primarily about the home the children live in when they are in the father’s care and the activities the children do with the father. [66] reviewed the children’s school report cards for the years from 2013/2014, 2015/2016 and to March 2017. The report cards reflect the struggles of the children during the year after their mother died. Haydn had more difficulty than Arty in school after his mother’s death. However, school reports show great improvement by March 2017. As testified to by the grandmother, Haydn received lot of “Y’s” but also some “S’s”. The stands for “usually evident” with the standing for “sometimes evident”. [67] Arty’s report card of March 2017 shows how well Arty is doing in school. He received solid Y’s and was meeting expectations in almost all subject matters. In fact, in “participation” he was shown as surpassing expectations. [68] Both Arty and Haydn have been awarded certificates for various activities and doing well in school. Arty has received the following awards: 1. Award for personal success for being humble and respecting others (December 10, 2014); 2. certificate from Run Jump Throw Athletics Canada for successfully completing their program (June 2015); 3. personal success award for continuing to be friendly, energetic and helpful classmate (May 12, 2016); 4. certificate of achievement for having completed program called Kids Kitchen (May 3, 2016); 5. further certificate for having completed the Run Jump Throw program (June 9, 2016); and 6. personal success award for being an example of participation to others (November 28, 2016). [69] Haydn has also received certificates from school. The two certificates filed with the Court are: 1. An award for personal success for being courageous person (June 9, 2015); and 2. certificate where he is named BOKS Kid of the Day for being friendly, showing good effort, having good attitude and being team player (October 15, 2016). The grandmother described the BOKS program as standing for Building Our Kids’ Success. It requires Haydn to go in early to school and do physical activity like running. The grandmother said that Haydn was very excited when he got his certificate as he had worked very hard on running laps. [70] was very pleased to receive evidence that the two children are basically healthy and have come long way after their mother’s death towards being happy. Legal Principles [71] This action is governed by The Children’s Law Act. The relevant portions of The Children’s Law Act are as follows: 3(1) Unless otherwise ordered by the court and subject to subsection (2) and an agreement pursuant to subsection (3), the parents of child are joint legal custodians of the child with equal rights, powers and duties. 4(1) Subject to subsection (3), if parent is deceased, the surviving parent of child: (a) is the legal custodian of that child. 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 (7) When making an order pursuant to this section, the court, in the manner and on the conditions that the court considers appropriate, may provide for: (a) the division and sharing of parental responsibilities; and (b) the granting of access. nan In making, varying or rescinding an order for custody of child, the court shall: (a) have regard only for the best interests of the child and for that purpose shall take into account: (i) the quality of the relationship that the child has with the person who is seeking custody and any other person who may have close connection with the child; (ii) the personality, character and emotional needs of the child; (iii) the physical, psychological, social and economic needs of the child; (iv) the capacity of the person who is seeking custody to act as legal custodian of the child; (v) the home environment proposed to be provided for the child; (vi) the plans that the person who is seeking custody has for the future of the child; and (vii) the wishes of the child, to the extent the court considers appropriate, having regard to the age and maturity of the child; (b) not take into consideration the past conduct of any person unless the conduct is relevant to the ability of that person to act as parent of child. [72] The father argued that he was entitled to custody of the children pursuant to s. 4(1) above. He said he is the surviving parent of the children and is, therefore, automatically the legal custodian of the children. However, the father failed to consider s. 6(1) which provides the Court with jurisdiction to order custody to parent or other person. Section 6(1) commences with the words “Notwithstanding sections to 5” allowing the Court to order custody to someone other than the surviving parent. [73] The father also argued that he has constitutional right to have custody of his children. He did not point to any provision of the Canadian Charter of Rights and Freedoms where such right is granted. In fact, there is no constitutional right. This case is not about the rights of the father. It is about the best interests of the children. [74] The father’s status as the biological father of the children is, however, factor that must be considered when determining the best interests of the children. As set out by Ryan-Froslie J. (as she then was) in S.A.L. K.H., 2011 SKQB 397 (CanLII), 384 Sask 263 [S.A.L.], the relationship between child and his biological parents is special one. In her decision she refers to the approach adopted by the Supreme Court of Canada in King Low, 1985 CanLII 59 (SCC), [1985] SCR 87. She states at paras. 106 and 107 of her decision as follows: 106 In King v. Low, supra, an unwed mother gave her son up for adoption few days after his birth to couple she had chosen. Less than three months later, she requested the child be returned to her care. The adoptive parents refused and an application for custody was initiated. In unanimous decision by the Supreme Court of Canada, McIntyre J. set out the law at para. 27 as follows: [27] This conclusion is consistent with modern authority in this Court and others: see Racine, Beson, and Re Moores and Feldstein. [Racine v. Woods, 1983 CanLII 27 (SCC), [1983] S.C.R. 173; Beson v. Director of Child Welfare (Nfld.), 1982 CanLII 32 (SCC), [1982] S.C.R. 716; and Re: Moores and Feldstein, 1973 CanLII 535 (ON CA), [1973] O.J. No. 2113, (1973), 12 R.F.L. 273(Ont. C.A.)] would therefore hold that in the case at bar the dominant consideration to which all other considerations must remain subordinate must be the welfare of the child. This is not to say that the question of custody will be determined by weighing the economic circumstances of the contending parties. The matter will not be determined solely on the basis of the physical comfort and material advantages that may be available in the home of one contender or the other. The welfare of the child must be decided on consideration of these and all other relevant factors, including the general psychological, spiritual and emotional welfare of the child. It must be the aim of the Court, when resolving disputes between rival claimants for the custody of child, to choose the course which will best provide for the healthy growth, development and education of the child so that he will be equipped to face the problems of life as mature adult. Parental claims must not be lightly set aside, and they are entitled to serious consideration in reaching any conclusion. Where it is clear that the welfare of the child requires it, however, they must be set aside. [Emphasis added] 107 It is obvious that parental ties are an important factor in determining custody. They must, however, give way to the welfare of the child. [75] In S.A.L. Ryan-Froslie J. refers to two decisions of our Court: Hendricks Swan, 2007 SKQB 36 (CanLII), 292 Sask 206 [Hendricks], decision of Smith J. and Edin Edin, 2008 SKQB 490 (CanLII), 328 Sask 54 [Edin], decision of Maher J. In Hendricks the dispute was between biological father and third-party respondents who had the care and custody of the child from the child’s birth. At para. 92 of his decision, Smith J. states as follows: 92 The direction from judicial authorities is crystal clear, namely, that consideration of any single factor, including kinship, must always remain and be subject to the primary consideration, namely, the best interests of the child. [76] After stating that the primary consideration for court in contests between birth parents and others is the best interests of child, Smith J. provides summary of the law as follows: 93 In summary, the instruction draw from the case law is that the critical elements the Court must consider in debate such as this are: (i) The paramount consideration is the best interests of the child; (ii) Blood ties are factor to be considered in determining the best interests of the child but they are to be considered from the point of view of the significance to the child, rather than the significance to the biological parent; (iii) The question must be asked which environment can best provide for the health, emotional well being, education, training, intellectual, economic and psychological needs of the child; (iv) The Court must consider uncertainties associated with transferring custody of child from known situation of security and stability to situation with many unknowns. In the case of an infant, the Court must consider the potential harm to child in disrupting attachments that have developed or are in the advanced stages of formation. [77] After consideration of these legal principles as applied to the circumstances before him, Smith J. dismissed the biological father’s claim for custody. [78] In Edin, the maternal grandmother petitioned for sole custody of her granddaughter. Maher J. refers to the summary of law as set out by Smith J. in Hendricks and concludes that there is strong psychological bond between the grandmother and granddaughter. He says neither of the biological parents have the same bond as they only recently became part of their child’s life. He makes comments about the child being able to stay at the same school, maintain relationships with her teachers, her friends and both of the biological parents if the child stayed in the care of the grandmother. [79] Of course, determination of the best interests of child is to be made on case-by-case basis with reflection on the circumstances of the family before the Court. There are Saskatchewan cases where biological fathers are granted custody as opposed to grandparent (see for example Haygarth Martel, 2012 SKQB 439 (CanLII), 410 Sask 96). [80] In making an order for custody must take into account only the best interests of these two children and, further, take into account the factors as set out in s. of The Children’s Law Act. [81] review of the factors as they relate to the family before me is as follows: (i) The quality of Arty and Haydn’s relationship to the grandmother and the father. [82] The grandmother has provided stability for the two children throughout their lives. She was there for them on daily basis to provide support when the relationship between the mother and father terminated. She was their primary caregiver during their mother’s one-year hospital stay before her death. She was there for them as they grieved their mother’s death, and she arranged for counselling to assist the children with the grieving process. The grandmother is keeping the children’s memories of their mother alive by marking special occasions like Mother’s Day. There is lovely photo of the two boys sending balloons into the air with messages to their mother inside on Mother’s Day. [83] The children refer to the grandmother as “nanna” and Ms. Callahagn described Haydn as “nanny’s” boy. On all of the evidence before me, the grandmother is the “psychological” parent for the boys. [84] The Saskatchewan Court of Appeal decision in Haider Malach (1999), 1999 CanLII 12363 (SK CA), 177 Sask 285, provides insight into the matter of psychological parents. Paragraph 82 of that decision states: 82 In Goertz v. Gordon, 1996 CanLII 191 (SCC), [1996] S.C.R. 27 at 92-93, L’Heureux-Dubé J. comments on the significance of the primary caregiver and psychological parent: The assessment of the child’s best interests also involves consideration of the particular role and emotional bonding the child enjoys with his or her primary caregiver. The importance of preserving the child’s relationship with his or her psychological parent has long been recognized by this Court on number of occasions (Catholic Children’s Aid Society of Metropolitan Toronto v. M.(C.), 1994 CanLII 83 (SCC), [1994] S.C.R. 165, at p. 202; Racine v. Woods, supra, at p. 188; King v. Low, 1985 CanLII 59 (SCC), [1985] S.C.R. 87, at p. 101). There is growing body of evidence that this relationship may well be the most determinative factor on the child’s long-term welfare. As mentioned in Young, supra, at p. 66 [1993 CanLII 34 (SCC), [1993] SCR 3], the vital link between continuity in the emotional bonding of the child with his or her psychological parent and the best interest of the child finds ample support in the literature: Goldstein, Freud and Solnit’s Beyond the Best Interests of the Child, supra, while perhaps lacking in empirical data, remains an influential analysis of the psychological needs of children following divorce. The authors emphasize, among other factors, the importance of continuity in the child’s relationships and conclude that the major focus of custody decisions should be to preserve and protect the relationship between the child and his or her psychological parent. [L’Heureux-Dubé J.’s emphasis] [85] The children are clearly emotionally bonded to their grandmother, and must recognize the importance of continuity in the children’s relationship with her. [86] The children have bond with their father as well. Since May 2015 the children have had time with their father on regular basis. His time with the children was set by adopting “staged” re-entrance into the children’s lives. [87] When the children are in the care of the father, it is obvious they enjoy being with him and doing all the activities he arranges for them. There is no evidence the children fear their father and do not want to have visits with him. Further, there is no evidence that the father is currently utilizing drugs or drinking in excess. commend the father for having been on the road to recovery for three years. (ii) The personality, character and emotional needs of the children [88] The evidence establishes that the two children have different personalities but are both considered polite, well-behaved, kind and generous children. It was pleasure to hear about the numerous activities the children enjoy when they are in the care of the grandmother and when they are in the care of the father. In my view, the two children have emotional needs that are unusual for children of their age. They have suffered two significant losses in their young lives. The death of Dion, their step-grandparent, was not easy to deal with for the children. Then, their mother passed away. The children’s mother had been the children’s primary caregiver from the time the mother and father separated in 2008. To lose their mother at such young age must, no doubt, have had and continue to have, huge effect on the children and what they require emotionally. (i) The physical, psychological, social and economic needs of the children [89] am satisfied both the grandmother and the father can provide for the physical, social and economic needs of the children. Both the grandmother and the father gave evidence that they would like to see the boys active and involved in activities other than “screen” games. The father had concerns regarding Haydn’s weight. It appears the grandmother, in conjunction with the school, is working on more physical activity. Thankfully neither child has any major medical issues and both parties would, in my view, be capable of handling any medical issues. [90] As regards the economic needs of the children, both the grandmother and the father can provide financially for the children. My only concern here is with regards to the father’s lack of stability in his employment. [91] The psychological needs of the children take on more significance in this matter given the losses of the children. The grandmother has, through her actions, satisfied me that she will always keep the children’s mother alive in their hearts. question whether the father will also do so. He provided no evidence that he ever discussed the mother in positive way with the children. Further, although the children have lovely bedroom in the father’s home, could not see picture of their mother. The only picture is of the father and the boys. [92] After finding out the mother had cancer, the father did not attempt to provide support to the children. This is troubling. He was aware of the mother’s cancer diagnosis and was aware of the grandmother’s place of residence. Short visits with the father may have assisted the children in coping with the fact they were losing their mother. His excuse for not doing so was that he did not think it was right to just show up and ring the grandmother’s doorbell. wonder why he did not prepare note to the grandmother and place it in her mailbox. His note could have expressed his willingness to do whatever was necessary and appropriate to support the children. [93] am also concerned the father believes nothing would really change if the children were transferred from the care of the grandmother to his home. He testified it would “continue as normal for them”. The father’s comments show an entire lack of understanding about the psychological issues for children when they are removed from their primary caregiver and are forced to change schools and neighbourhoods. have great doubt that he would, if determined he have custody, utilize counsellors to assist the children with the significant change in their lives. His opposition to counselling in the past is telling. accept the grandmother’s evidence that the father’s view is that the children only need him and all will be fine. (iv) The capacity of the person who is seeking custody to act as legal custodian of the children [94] On the evidence have determined that both the grandmother and the father have the capacity to act as legal custodians of the children. As set out previously, there is no evidence before me the father is struggling with the addictions he had in the past. Further, there is no evidence before me that he disciplines the children inappropriately, has an anger management issue or any other problem that would lead to the conclusion he could not parent the children. [95] The grandmother has raised her own children and has been raising Arty and Haydn for some time. The father provided no evidence of any concerns with the grandmother’s care of the children. The grandmother is physically capable of assuming custody of the children. Her age is not factor as she is very young grandmother, being 48 years old. (v) The home environment proposed to be provided for the children [96] Both parties have homes that can adequately provide for the children’s needs. Both the grandmother and the father have others living in their homes that provide support to the children. The boys share room in each home, and there is large backyard where the boys can play in each home. (vi) The plans that the person who is seeking custody has for the future of the children [97] Both the grandmother and the father would encourage the children to pursue post-secondary education. At present, the children are assisted with their homework by either the grandmother or the father or someone else in their respective homes. It is my belief that both the grandmother and the father want the children to be happy, healthy and independent at some point in their future. (vii) The wishes of the children, to the extent the Court considers appropriate, having regard to the age and maturity of the children [98] The children are only and 10 years old. It is not until they are older that any weight would be put on their wishes. With respect to their wishes, neither the grandmother nor the father testified that the children have expressed desire to either move to the father’s home or stay with the grandmother. The children did, according to the father, wish to spend the entire Easter week with their father as opposed to have the week shared between the grandmother and the father. This is quite normal. The children obviously wanted few more days with their father when it was holiday period. On the other hand, heard evidence that the children are very happy to see their grandmother when they return from an access visit with the father. Conclusion [99] After taking into account the factors as set out in s. 8 of The Children’s Law Act, and considering only the best interests of the children, I have determined that it is in the children’s best interests to remain in the custody of the grandmother. Although the children have accepted their father back into their lives and clearly enjoy spending time with him, the grandmother is their psychological parent, and stability is found by leaving the children in the grandmother’s care. The children can continue to go to the same school they have attended and where they know their teachers. They can continue to celebrate the life of their mother while in the home of the grandmother. The bond they have with their grandmother is strong, and believe the grandmother will best provide for the children’s psychological needs. [100] This is not to say that the father is inadequate and should have minimal time with his children. accept his evidence that he is very passionate about his children and loves them very much. also have no doubt that the children love their father. The father should play significant role in the children’s lives and become more of parent than the “Disneyland dad” he described. strongly believe that the grandmother and the father will be able to work together as they both recognize it is in the best interests of the children to do so. The children have already been through enough. Conflict between the grandmother and the father would damage the children. [101] am ordering the following: 1. The grandmother and the father shall have joint custody of Arty and Haydn. 2. The parties shall discuss and decide jointly all major decisions with respect to health, education and religion of the children. In the event the parties cannot agree on significant issue, the grandmother shall make the determination. 3. The grandmother shall have the sole authority to make all day-to-day decisions regarding health, dental care and counselling. She shall choose the children’s doctor and dentist but provide the names to the father. 4. The father shall be entitled to obtain all information direct from the school that the grandmother receives. He shall be entitled to attend parent/teacher interviews, either with the grandmother or on his own. 5. The residence of the grandmother shall be the primary residence for the children, and she shall have the primary care of the children. 6. The father will have the following parenting time with the children: a) Every second week from Wednesday after school to Sunday at 8:00 p.m. b) Every alternating week on Wednesday evenings from after school until 8:00 p.m. c) The parties shall each parent the children for one-half of all school holidays unless otherwise agreed. For example, the parties could agree that one party have the entire Easter break while one party have the entire February break. d) The grandmother shall be allowed to register the children for soccer. The father shall be allowed to register the children for Cubs/Scouts. CHILD SUPPORT [102] Although the grandmother suggested that the father should pay child support to her for the children, no argument was put forward for child support at the conclusion of the trial. Further, I do not, at this time, have adequate evidence to consider the child support issue. will order, however, that the grandmother pay for activities she arranges for the children and the father pay for activities he arranges for the children. In addition, the parties should share any medical or dental expenses, over and above any amount paid by insurance, on an equal basis. The grandmother can pursue child support through an application to the court should she desire. [103] This was very difficult matter, and both the grandmother and the father have been partially successful. Although determined that the grandmother would be the primary caregiver for the children, substantially increased the father’s time with the children and provided parenting time for him with the children during school weeks. In such way, the father will be more involved in their schooling and will do all things parenting entails like making school lunches, checking school bags and ensuring homework is done. There has been mixed success in this matter. For these reasons am not awarding costs be paid by either party. J. D.L. WILSON

HELD: The court found the following with respect to each issue: 1) the grandmother was a person of sufficient interest regarding the children pursuant to s. 6 of The Children’s Law Act, 1997 and had standing to bring her application for custody; 2) it would be in the best interests of the children, now aged ten and nine years of age, to have their primary residence with their grandmother as she was their psychological parent. They had resided with their grandmother for most of their lives and it was important to maintain their relationships with their school and friends. The respondent would have regular weekly parenting time with the children; and 3) the evidence was inadequate to consider child support.

e_2017skqb219.txt

SUPREME COURT OF NOVA SCOTIA Citation: Brogan v. RBC Dominion Securities Inc., 2009 NSSC 351 Date: 20091120 Docket: Syd. No. 28135 Registry: Halifax Between: Thomas Brogan, Romad Developments Ltd., Tom Brogan Sons Construction Ltd., Derrick Kimball, Nash T. Brogan and Jocelyn Brogan v. RBC Dominion Securities Inc. Defendant Judge: The Honourable Justice Arthur J. LeBlanc. Heard: May 29, 2009, in Halifax, Nova Scotia Final Written Submissions: April 16, 2009 Counsel: William P. Burchell, Esq. for the plaintiffs Alan V. Parish, Q.C. and Jason Cooke, Esq., for the defendant By the Court: [1] This is an application to dismiss a proceeding for want of prosecution pursuant to Rule 28.13 of the Civil Procedure Rules (1972). The application will be determined in accordance with the 1972 Rules because it was filed before December 31, 2008. Background [2] The plaintiffs filed an Originating Notice and Statement of Claim on September 21, 2000, in which they claimed that the defendant RBC caused them to suffer losses on investments. Two of the plaintiffs, Derrick Kimball and Nash Brogan, are associated in the practice of law. Ms. Foshay Kimball is the spouse and law partner of Mr. Kimball. Each plaintiff had an investment account with RBC. They allege that RBC and its representative, Patrick O’Neill, counselled them to make investments in listed companies, particularly Golden Rule Resources Inc. and Hixon Gold Resources Inc, despite RBC’s possession of information about the companies that was not communicated to the plaintiffs. According to the Statement of Claim, RBC “covered” the stock issues of the two companies. The plaintiffs allege that RBC guaranteed that the stock would appreciate. [3] The plaintiffs say they dealt with Mr. O’Neill, who is no longer employed by RBC. They allege that he advised them, and in particular Mr. Brogan, to buy stock in the companies, and provided information about available gold was misleading. The plaintiffs say RBC is liable for any breach of duty by Mr. O’Neill. [4] The plaintiffs also claim that, contrary to their instructions, RBC used their investment account balances to pay down loans and to meet other obligations. They also allege that some stock and security purchases were unauthorized. They say RBC failed to properly supervise Mr. O’Neill, and breached its duty of care and the applicable contracts. They claim damages for breach of fiduciary duty, breach of trust, breach of industry regulations and standards, breach of contract, negligence and professional malpractice. [5] RBC denies responsibility for any loss or damage sustained by the plaintiffs. It denies any wrongdoing on its part or that of Mr. O’Neill. It denies the existence of fiduciary relationship between itself (or Mr. O’Neill) and the plaintiffs. RBC also denies making promises or guarantees as to the future price of shares, and denies that the plaintiffs relied on such representations. It denies that Mr. O’Neill engaged in unauthorized or discretionary trading in the plaintiffs’ accounts, claiming that every purchase was approved or ratified, directly or indirectly, by Mr. Brogan. RBC denies that the purchases were inconsistent with the plaintiffs’ investment objectives. It denies improper supervision of O’Neill. It had compliance department, whose managers supervised him. RBC maintains that any decline in the value of the stock was directly attributable to the principals of the companies, who, it is alleged, withheld information, causing the price to fall. [6] RBC counterclaims for contribution and indemnity from Mr. Brogan, alleging that, as representative of the plaintiffs, he authorized actions with respect to the accounts, and that RBC relied on his representations to that effect. The course of the proceeding [7] The Statement of Claim was issued on September 21, 2000. RBC served Demand for Particulars pursuant to Rule 14.24 on October 10. The plaintiffs did not reply to the Demand for Particulars until December 2003. Mr. Parish, counsel for RBC, received the Reply in January 2004, some three years and three months after the Demand was served. In the meantime, the plaintiffs filed Notices of Intention to Proceed on May 15, 2001 and September 8, 2003. [8] After receiving the Reply to the Demand for Particulars, Mr. Parish indicated to Ms. Kimball on January 15, 2004, that he had believed that the claim was abandoned, in view of the time that had elapsed. He asked for time to review the file and determine whether the Reply was sufficient, and to file Statement of Defence. On January 16 Ms. Kimball informed him that RBC could have 30 days to file Defence. The plaintiffs filed list of documents the same day. RBC filed Defence, as well as Counterclaim against Mr. Brogan, on February 17, 2004, which was forwarded to Ms. Kimball on March 3. Defence to the Counterclaim was provided on March 17 and filed on March 22). In August 2004, she confirmed to Mr. Parish that the plaintiffs were proceeding with the claim. [9] In letter dated October 21, 2004, Mr. Parish questioned whether Ms. Kimball could represent the plaintiffs, in view of the relationships between the various plaintiffs and, in particular, the possibility that she might be required to undergo examination for discovery, and might have to testify at trial. Mr. Parish referred to paras. 14.5 and 14.17 of the Legal Ethics and Professional Conduct handbook. He informed Ms. Kimball that if she did not withdraw, RBC would apply to have her removed as solicitor of record. Ms. Kimball agreed to seek alternate counsel, by letter of the same date. She repeated the request for the defendant to file List of Documents. [10] On August 29, 2005, Derrick Kimball notified Mr. Parish that the plaintiffs were retaining alternate counsel. He also requested List of Documents, and asked for immediate notice if one could not be provided by the third week of September. Mr. Parish did not reply. On November 4, 2005, Mr. Kimball wrote again, indicating that the plaintiffs were considering an application to compel production of List of Documents. In letter dated November 7, Mr. Parish inquired whether Mr. Kimball would be acting for the plaintiffs, or whether there would be new counsel. He also stated that he was unavailable in the last week of November, but was otherwise available in December for the application. [11] On February 28, 2006, Mr. Brogan, on behalf of the plaintiffs, filed an Application for production of RBC’s List of Documents. On March 9, Mr. Parish wrote to Mr. Kimball, noting that Ms. Kimball remained solicitor of record and that Mr. Brogan was one of the plaintiffs. He said he intended to file List of Documents shortly, and that the application was not necessary. He also indicated that he was unwilling to accept documents signed by lawyer who was party. On March 10, Mr. Kimball indicated that the plaintiffs would retain an outside lawyer upon receipt of the List of Documents. On May 18 Mr. Kimball agreed that Mr. Parish would be allowed until June to file the List of Documents. Mr. Parish filed the List of Documents on May 31. It was served on Mr. Kimball. Thereafter, it appears, the matter did not advance for over 20 months. [12] On February 20, 2008, Mr. Kimball informed Mr. Parish that the plaintiffs had retained William P. Burchell, and that Notice of Change of Solicitor would be filed, as well as Notice of Intention to Proceed. He indicated that the plaintiffs wanted to move to the discovery stage. Mr. Burchell, on behalf of the plaintiffs, filed Notice of Change of Solicitor and Notice of Intention to Proceed on August 14, 2008. RBC made without prejudice offer to settle on March 20, 2008. Mr. Parish says the offer was for nominal amount. [13] There is additional evidence respecting the plaintiffs’ dealings with outside counsel. They say they retained Howard Crosby, Q.C., in 1988. There was an exchange of correspondence between Mr. Crosby and RBC, directed at locating Mr. O’Neill and outlining the nature of the losses alleged. Mr. Crosby did not initiate legal proceedings, but remained involved on behalf of the plaintiffs until his death on December 12, 2003. The plaintiffs indicate that they subsequently retained counsel in Ontario in November 2004, but, because of the logistical difficulties in dealing with out-of-province counsel, they ultimately retained Mr. Burchell instead. While Mr. Parish was advised in October 2004 and August 2005 that the plaintiffs intended to retain new counsel, RBC’s position is that it was not until February 2008 that the plaintiffs gave notice of the change of solicitor. Issue [14] RBC maintains that the Statement of Claim should be dismissed for want of prosecution, asserting that it has suffered significant prejudice due to delay, which will make it impossible to properly defend the claim should it proceed to trial. [15] Rule 28.13 of the Civil Procedure Rules (1972) provides: Where plaintiff does not set proceeding down for trial, the defendant may set it down for trial, or apply to the court to dismiss the proceeding for want of prosecution and the court may order the proceeding to be dismissed or make such order as is just. [16] The Nova Scotia Court of Appeal has repeatedly addressed the test on an application to dismiss proceeding for want of prosecution, following the analysis set out in Allen v. Sir Alfred McAlpine Sons, [1968] All E.R. 543 (Eng. C.A.). In that case, Salmon L.J. said, at p. 561: defendant may apply to have an action dismissed for want of prosecution either (a) because of the plaintiff's failure to comply with the Rules of the Supreme Court or (b) under the court's inherent jurisdiction. In my view it matters not whether the application comes under limb (a) or (b), the same principles apply. They are as follows: In order for such an application to succeed, the defendant must show: (i) that there has been inordinate delay. It would be highly undesirable and indeed impossible to attempt to lay down tariff so many years or more on one side of the line and lesser period on the other. What is or is not inordinate delay must depend on the facts of each particular case. These vary infinitely from case to case, but it should not be too difficult to recognise inordinate delay when it occurs. (ii) that this inordinate delay is inexcusable. As rule, until credible excuse is made out, the natural inference would be that it is inexcusable. (iii) that the defendants are likely to be seriously prejudiced by the delay. This may be prejudice at the trial of issues between themselves and the plaintiff, or between each other, or between themselves and the third parties. In addition to any inference that may properly be drawn from the delay itself, prejudice can sometimes be directly proved. As rule, the longer the delay, the greater the likelihood of serious prejudice at the trial. [17] Salmon, L.J. added that if these three factors were established, “the court, in exercising its discretion, must take into consideration the position of the plaintiff himself and strike balance.” If the plaintiff “is personally to blame for the delay, no difficulty arises. There can be no injustice in his bearing the consequences of his own fault.” On the other hand, “[i]f the delay is entirely due to the negligence of the plaintiff's solicitor and the plaintiff himself is blameless, it might be unjust to deprive him of the chance of recovering the damages to which he could otherwise be entitled” [18] Among the appeal decisions in this jurisdiction that have followed this general analysis are Martell v. Robert McAlpine Ltd. (1978), 1978 CanLII 2151 (NS CA), 25 N.S.R. (2d) 540, Moir v. Landry (1991), 1991 CanLII 2572 (NS CA), 104 N.S.R. (2d) 281, Savoie v. Fagan (1998), 1998 CanLII 6008 (NS CA), 165 N.S.R. (2d) 276, Hurley v. Co‑op General Insurance Co. (1998), 1998 CanLII 1789 (NS CA), 169 N.S.R. (2d) 22 (C.A.) and Clarke v. Sherman (2002), 205 N.S.R. (2d) 112, 2002 NSCA 64 (CanLII), 2002 CarswellNS 219. Saunders, J.A., for the court, summarized the analysis as follows in Clarke v. Sherman, supra, at para. 8: Thus, to summarize, in order to succeed the onus is upon defendant to show: first, that the plaintiff is to blame for inordinate delay; second, that the inordinate delay is inexcusable; and third, that the defendant is likely to be seriously prejudiced on account of the plaintiff's inordinate and inexcusable delay. If the defendant is successful in satisfying these three requirements, the court, before granting the application must, in exercising its discretion, go on to take into consideration the plaintiff's own position and strike balance in other words, do justice between the parties. [19] In Moir, supra, Hallett, J.A. referred (at para. 5) to Heichert v. A.M. Kelly and Son Limited et al. (1963), 1962 CanLII 470 (MB CA), 37 D.L.R. (2d) 55 (Man. C.A.), where Guy, J.A., stated, at p. 60: party who launches motion to dismiss an action completely so that it will never be heard on its merits, must file an affidavit in support of his application. In my opinion, that affidavit should set out some specific facts which support the contention of the applicant, that unless the action is dismissed immediately the applicant will be prejudiced. It is not enough, think, to rely upon the fact that all parties are prejudiced to some extent by the failure of memories of witnesses due to the effluxion of time. The applicant should prove his particular prejudice in more positive way, if he is to justify an application for final judgment in his favour without hearing any of the evidence as to the merits of his case. [Emphasis by Guy J.A.] [20] The onus is on the defendant/applicant, RBC to prove that the delay was inordinate and inexcusable, and caused it serious prejudice. If the plaintiffs do not raise some excuse or reasons for the delay, it will not be difficult to show that the delay was inexcusable. The more contentious point in this case is whether the delay attributable to the plaintiffs is sufficiently extreme to justify presumption of prejudice accruing to RBC. (1) inordinate delay [21] Whether there has been inordinate delay must be examined on the facts of the case. In Hurley, supra, Flinn, J.A. held that the Chambers judge's finding that delay of three years was inordinate was incorrect. He said, at para. 31: The appellant's action against the insurer was commenced in November 1994. Therefore, at the time the Chambers judge dismissed the action, for want of prosecution, three years had passed. Unless proceeding is lying dormant, period of three years, on its face, is not, in my view, an inordinate period of time in which to bring matter to trial. The cases which the insurer's counsel has referred to the court where proceeding has been dismissed for want of prosecution because of inordinate delay were all cases where the period of delay was considerably in excess of three years. In Savoie v. Fagan, supra, the circumstances of that case and the resulting ten (10) year delay, was found to have been inordinate. In Martell v. Robert McAlpine Ltd., supra, there was found to be inordinate delay because, in the words of Justice Cooper, "the action was allowed to sleep for seven years and no explanation for this delay was forthcoming except that it was lost sight of". In Allen v. Sir Alfred McAlpine Sons, supra, the court reviewed and decided three separate appeals simultaneously. The first appeal involved an action where there had been delay in excess of six years. The second appeal involved claim which was precipitated by an injury suffered in the course of the plaintiff's employment. Nine years passed and little was done to advance the action. The third appeal involved delays amounting to three and half years with little done to forward the claims and fourteen years passing since the time the cause of action arose. The first and third appeals were dismissed upholding the lower court's decision to dismiss the claims. The second appeal was allowed even in light of the delays because the court did not accept that the defendants had been prejudiced by the delays. [22] On the other hand, in Moir, supra, delay of three years was held to be inordinate and inexcusable although not sufficiently so to give rise to presumption of prejudice (para. 10). The amount of time that passes between accrual of the cause of action and the commencement of the action will also have an impact on whether the delay is classified as inordinate: Anil Canada v. Industrial Estates Ltd. (1986), 75 N.S.R. (2d) 181 (S.C.T.D.), at para. 4. [23] RBC says the delay attributable to the plaintiffs is not only inordinate but constitutes “extreme delay,” analogous to the delay in cases where presumption of prejudice was applied against the plaintiffs. The Plaintiffs claim that given the chronology of events and actions by both sides, the delay is not inordinate. They cite Buxton v. Sable Offshore Energy Inc., 2007 NSSC 105 (CanLII), for the principle that the behaviour of the defendant is relevant in determining whether the delay is inordinate. The original authority for that principle is Canada (Attorney General) v. Foundation Co. of Canada (1990), 1990 CanLII 2522 (NS CA), 99 N.S.R. (2d) 327 (S.C.A.D,), where there had been eight years without activity. In that case, Chipman, J.A. said, for the court, at para. 48: plaintiff's conduct of the proceeding can and should also be judged to some degree in the context of that of the defendants. Acquiescence or waiver on the part of the defence are proper matters to be taken into account in determining the excusability of plaintiff's conduct.... There is no duty on defendant to actually take positive steps to move the matter forward or to send out warnings and exhortations to the plaintiff to proceed. However, the presence or absence of these actions may be relevant in determining whether the defence acquiesced in the slow tempo of litigation. [24] The plaintiffs submit that RBC waited until their counsel had been changed to bring this application, not having attempted to advance the matter prior to that. RBC submits that Buxton is distinguishable on the facts and on the basis that the scope of the maximum possible limitation period has passed; in Buxton, where the delay was approximately eight years, the question was raised as to whether plaintiff on such an application “should be in worse position than an individual who had not commenced an action and who succeeded in extending the period of time in which lawsuit could be pursued” (para. 27). [25] The Plaintiffs claim that the delay is not inordinate because of the delay caused by the Defendants in not filing their list of documents and their acquiescence to the slow pace of litigation. In Foundation Co. of Canada, supra, acquiescence or waiver was considered under the heading of excusability, not inordinacy (para. 48). The actions of defendant will also be important at the balancing stage of the test: Clarke v. Sherman, supra, at para. 36. will consider the actions of the Defendant under the headings of inexcusable delay and balancing the positions of the parties. [26] Even discounting the two years of delay between the filing of the Defence to the Counterclaim and the filing of the Defendant's List of Documents, at least five years of delay lie at the feet of the plaintiffs. This five-year period of dormancy, combined with the overall 12-to-13-year delay since the accrual of the cause of action, is sufficient to establish inordinate delay. There has been inordinate delay. The activities forming the basis of the Statement of Claim are alleged to have occurred in 1996 and 1997. Between 1996 and 2003 the plaintiffs did not move the matter forward, with the exception of Mr. Crosby's inquiries as to Mr. O'Neill's whereabouts, and commencing the proceeding. At the end of 2003, they replied to the Demand for Particulars. This delay covers about seven years. There was further delay between the filing of RBC’s List of Documents and correspondence from Mr. Kimball in 2008 indicating that Mr. Burchell would be representing the Plaintiffs. This period covers some 18 months. [27] There was, of course, additional time where nothing happened on the file due to delay by RBC, period of about two‑and‑a‑half years. This accounts for the 11 years between the time the alleged activities occurred and this application. Even allowing for two-and-a-half years of delay attributable to RBC, this means the delay of attributable to the Plaintiffs was of some eight-and-a-half years, which I am satisfied is inordinate. (ii) inexcusable delay [28] RBC cites Clarke, supra, and submits that the court should infer that the delay is inexcusable unless the plaintiffs can demonstrate otherwise. Savoie v. Fagan, supra, suggests that consideration should be given to whether the parties are sophisticated (para. 27). The delay in Clarke, supra, was largely attributable to the plaintiff’s solicitor and not to the plaintiff himself. As result, the Court refused to dismiss the proceedings. In Savoie, supra, Bateman, J.A. held that the evidence did not adequately explain the delay. She said, at para. ... In his affidavit filed on the application Mr. Savoie (who is lawyer) recited several factors to which the Court was to infer that the delay was attributable: Mr. Garson chose not to continue with this claim while another lawyer, acting for Mr. Savoie, pursued an action resulting from boating accident in which he was injured. That accident occurred in September of 1988 and was settled in June of 1991. In August and October of 1992 he was hospitalized for cardiac investigations. He does not say for how long. In addition, his brother had passed away (he does not say when) and he was having difficulty dealing with his death. After retaining Mr. Wagner and while sorting through the medical records of Dr. Stalker, Mr. Savoie was "faced with lot of personal emotions arising from the notes concerning his past" He suffered further unspecified injuries in an accident in January of 1996 and underwent extensive medical treatment, requiring him to wear shoulder harness for six weeks and attend physiotherapy. In December 1996, he fell down and injured his hand which required cast. In January 1997, he fell on ice and re‑injured his hand. That same month he required oral surgery to remove an infected tooth. There was misunderstanding between him and Mr. Wagner about draft settlement proposal prepared in March of 1997, as result of which it was not forwarded to Mr. Miller. In March of 1997, he applied for employment with Mr. Miller's firm. Absent is any specific evidence detailing how the intervening injuries and other events impeded Mr. Savoie's progress with this file. Nowhere in his lengthy affidavit does he say that he was unable to instruct his solicitor to the extent necessary. At least part of the delay is attributable to conscious decision not to pursue this action while working on settlement in relation to subsequent accident. It is telling that when Mr. Miller, in his letter of August 29, 1994, asked for an explanation of the delay, Mr. Wagner responded only that it was due to the inaction of Mr. Savoie's previous solicitor. He did not attribute it to any inability on Mr. Savoie's part to advance this lawsuit. [29] Two of the plaintiffs, Mr. Brogan and Mr. Kimball, are experienced members of the bar; as such, the RBC submits, the delay cannot be excused on account of lack of knowledge of court procedure or of the legal consequences of delay. RBC also points to para. 17 of the Statement of Claim, where the plaintiffs state that Mr. Brogan “acted as the contact person for all plaintiffs in dealing with Patrick O'Neill and RBC Dominion.” [30] The plaintiffs submit that their delay was caused in part by the death of Howard Crosby, who had originally advanced the claim, and the difficulty in locating competent counsel to advance the claim after his death. They retained counsel in Ontario between November 2004 and November 2007. It is submitted that one difficulty was the inability to provide counsel with RBC's list of documents, which was not produced until May 2006. After this, time was required for counsel to review the documents. RBC maintains that Mr. Crosby’s death had no impact on the litigation, noting that as of September 2000, Ms. Kimball was the plaintiffs’ solicitor of record. It also says there were Nova Scotia counsel who could have taken the case (see the affidavit of Jason Cooke, dated Jan 29, 2009). RBC also argues that given interprovincial mobility for lawyers, and the available technology, the arguments with respect to the difficulty in working with Ontario counsel are unconvincing. [31] RBC says the delay in filing its List of Documents spanning August 2004 until May 2006 is explicable for several reasons: difficulty in determining relevance; the quantity of documents to review; the need to review documents carefully to identify confidential information on non‑party investors; and the time required to review some 20 communications for privilege. [32] The plaintiffs submit that RBC could have compelled Mr. O'Neill to attend examination, while they could not, because they did not have his contact information. RBC sayss the plaintiffs never asked for those particulars. [33] The Plaintiffs provide number of reasons for finding the delay excusable. They submit that RBC, as defendant, was responsible for a considerable period of delay, and that RBC acquiesced to a slow tempo of litigation. In Foundation Co., supra, Chipman, J.A., as noted above, held that “[t]here is no duty on defendant to actually take positive steps to move the matter forward or to send out warnings and exhortations to the plaintiff to proceed. However, the presence or absence of these actions may be relevant in determining whether the defence acquiesced in the slow tempo of litigation.” Foundation Co. concerned construction claim in which the extent of damages would not be known until five years’ restoration work was complete. Chipman, J.A. found that there was an understanding that the matter would not proceed until that time. This understanding was held to be form of acquiescence and the matter was allowed to proceed to trial. [34] On the question of plaintiff's reliance on defendant's representations that matter would proceed to trial, Roebuck v. Mungovin, [1994] A.C. 224 (H.L.) provides some guidance. The cause of action related to car accident in 1984. The writ and statement of claim were issued in 1986, followed by nearly four years of inordinate and inexcusable delay. In 1990, the defendant, upon receiving some particulars, pursued discovery examinations and statement of damages, with numerous communications to the plaintiff's lawyers. The Court of Appeal held that the letters sent by the defendant's solicitors in 1990 amounted to representation that the matter would proceed to trial. Lord Browne‑Wilkinson said, at p. 236: Where plaintiff has been guilty of inordinate and inexcusable delay which has prejudiced the defendant, subsequent conduct by the defendant which induces the plaintiff to incur further expense in pursuing the action does not, in law, constitute an absolute bar preventing the defendant from obtaining striking out order. Such conduct of the defendant is, of course, relevant factor to be taken into account by the judge in exercising his discretion whether or not to strike out the claim, the weight to be attached to such conduct depending upon all the circumstances of the particular case. At one extreme, there will be cases like the present where the defendant's actions are minor (as compared with the inordinate delay by the plaintiff) and cannot have lulled the plaintiff into any major additional expenditure; in such case judge exercising his discretion will be likely to attach only slight weight to the defendant's actions. At the other extreme one can conceive of case where, the plaintiff having been guilty of inordinate delay, the defendant has for years thereafter continued with the action thereby leading the plaintiff to incur substantial legal costs; in such case the judge may attach considerable weight to the defendant's activities. But it is for the judge in each case in exercising his discretion to decide what weight to attach in all the circumstances of the case to the defendant's actions and trust that in the future there will be few occasions on which the Court of Appeal will be invited to review his decision on the point. [35] In the case at bar, there are number of factors to note. First, RBC was in contact with Mr. O\'Neill as early as October, 2000, and could have compelled him to attend discovery, but did not do so. Second, RBC delayed for slightly less than two years before filing List of Documents. Third, RBC requested change of counsel by the plaintiffs in 2004, and later took the position that documents would not be accepted until this was done. Fourth, on March 20, 2008, RBC made without prejudice offer to settle. (RBC submits that the offer was for nominal amount, thus distinguishing it from the without prejudice offers from Clarke, supra, where "substantial offer" was made.) [36] The backdrop to these events is that the plaintiffs delayed for three years in responding to the Demand for Particulars. It is RBC’s position that it believed the matter would not be pursued, and that the delay in filing List of Documents was the result of this assumption. The limitation period had not expired, however, and RBC did not take steps to ascertain the plaintiffs’ position. Furthermore, the affidavit of Mr. Parish indicates that contact had been made with Mr. O'Neill, and that RBC did not disclose this information to the plaintiffs or actively take steps to compel examination of Mr. O'Neill. [37] There is also the question of whether RBC was responsible for the period of delay before filing its List of Documents, between August 2004 and May 30, 2006. Mr. Parrish’s affidavit indicates that RBC was hesitant to proceed while Ms. Kimball was solicitor of record for the plaintiffs. RBC also submits that the assembly of documents was extensive and was hampered by the plaintiffs’ delay in responding to the Demand for Particulars. Accepting that there were many documents to be reviewed for relevance and privilege, it is not clear how the passage of time made their collection more difficult. The process of locating and collecting documents could have begun as early as 2000. [38] The record suggests that RBC’s concern about Ms. Kimball remaining solicitor of record after the death of Mr. Crosby was not unfounded, as there was potential for conflict of interest where she was plaintiff herself. On the other hand, the request for change of counsel may be taken as an indication by RBC of willingness to proceed once new counsel was retained. [39] Even if the Court accepts that RBC’s actions constitute waiver or estoppel, there is further delay attributable to the plaintiffs after RBC filed its List of Documents. Between May 30, 2006, and February 20, 2008, there was no action on the file. In February 2008 the plaintiffs informed RBC of the change of counsel and gave notice that they were prepared to proceed to discovery. On March 20, 2008, RBC made the without prejudice offer. It would be hard to characterize the offer to settle as representation of the sort contemplated by Roebuck, supra. There is no evidence that the plaintiffs relied upon it or incurred any costs as result of it. The request for change of solicitor, however, may be characterized as representation of willingness to proceed. If the delay between May 2006 and February 2008 is inordinate and inexcusable, then, per Roebuck, the question of prejudice to RBC must be considered. [40] The plaintiffs say they retained counsel in Ontario, and that it was logistically difficult to move the matter forward from there. Their evidence does not disclose direct evidence of this retainer. Although Ontario counsel may have been retained between 2004 and 2007, all of the correspondence from the plaintiffs, including requests for List of Documents, were sent from the Kimball Brogan law firm. Ms. Kimball was sending correspondence as early as May 15, 2001. This also suggests that Mr. Crosby was less actively involved in the file than the Plaintiffs suggest. [41] If it is accepted that Mr. Crosby’s death caused some difficulty in moving the matter forward, it should be remembered that most of the plaintiffs are lawyers, factor militating in favour of the defendant (even in the case of hardship) in, for instance, Savoie, supra. While the death of Mr. Crosby certainly caused some difficulty, it does not furnish an excuse for the delay. As for the inability to find local counsel, the plaintiffs do not provide evidence of attempts to retain Nova Scotia counsel. [42] am satisfied that the parties shared responsibility for the delay. While the plaintiff’s delay, viewed in isolation, can be described as inexcusable, RBC’s own contribution to the reasons for delay was not irrelevant. (iii) serious prejudice [43] RBC submits that the delay in this case gives rise to presumption of prejudice which the plaintiffs must rebut. Beyond the presumption of prejudice, RBC argues that the core of the case is oral communications between Patrick O'Neill and the Plaintiffs. Where no discoveries have taken place, Mr. O'Neill no longer works for RBC and more than twelve years have intervened between the events and the trial, RBC argues that witness recall will be impaired. [44] The affidavit of Mr. Parish of October 27, 2008, addresses attempts to communicate with Mr. O’Neill (see paras. 6, 9, 11, 22-23). Mr. Parrish unsuccessfully requested interviews with Mr. O'Neill in October 2000 and in October 2004. The unavailability of this witness is one of the sources of prejudice asserted by RBC. RBC points to specific items from the Statement of Claim that will allegedly hinge on recollections of oral communications. [45] The plaintiffs submit that there is no prejudice to RBC. They say the documents are intact and have not been destroyed or lost because of the delay. Furthermore, RBC has been in contact with Mr. O'Neill on two occasions and could have filed Notice of Examination. As the plaintiffs did not have Mr. O'Neill's contact information, it is argued that they could not have done the same. [46] Several Nova Scotia cases have dealt with the question of presumed prejudice. In Martell, supra, the cause of action arose from alleged damage to home caused by construction blasting in 1967. The action was commenced, and after some activity between 1968 and 1970, nothing occurred for seven years. By the time of the application, about ten years had elapsed since the cause of action arose. MacKeigan, C.J.N.S. held that, given the length of time, the burden was on the plaintiff to establish that the defendant had not been seriously prejudiced by witnesses becoming unavailable, their recollections being affected or documents being lost. In separate reasons, Cooper, J.A. stated that the seven-year delay raised presumption of prejudice, requiring the plaintiff to give satisfactory explanation. The Court ruled that the plaintiff could not establish that the defendant would not suffer prejudice as result of the long delay. The plaintiff had not provided any evidence that key witnesses could be produced or that important records were still available. [47] In Anil Canada, supra, Nathanson, J. applied presumption of prejudice against the plaintiffs where the defendants had not provided proof of prejudice. The factors favouring the presumption were that one corporate defendants had ceased to exist, witnesses and defendants had retired, changed jobs or moved, and to 13 years had passed since the events complained of. [48] In Saulnier v. Dartmouth Fuels Ltd. (1991), 1991 CanLII 2428 (NS CA), 106 N.S.R. (2d) 425 (N.S.C.A.), Chipman, J.A. said, at para. 24: All that can be said generally about onus is that while the onus is initially upon the defendant as applicant to show prejudice, there may be cases where the delay is so inordinate as to give rise in the circumstances to an inference of prejudice that falls upon the plaintiff to displace. The strength of the inference to be derived from any given period of delay will depend upon all the circumstances in the case. review of the record and the positions advanced by the parties in this case leads to the conclusion that the inference of prejudice is dubious. [49] In Saulnier, the total delay was six years, but there had been complete inaction for four years after settlement negotiations. One factor mitigating the hardship to the defendant was that the claim was one for fire damage, and there had been detailed investigation by the insurer (paragraph 25). Although the delay was inordinate and inexcusable, no presumption of prejudice was applied. [50] Although Martell, supra, is frequently cited as basis for the proposition that presumption of prejudice arises if there is lengthy delay without activity, in Moir v. Landry, supra, Hallett, J.A. took the view that the applicant in Martell had established prejudice by evidence. He said, at para. 8: The comments of Chief Justice MacKeigan and Cooper, J.A., in the Martell case that indicate there is an onus on the plaintiff to satisfy the Court that the defendant has not been seriously prejudiced by the delay must be read in the context of that case, recognizing that in the Martell case there had been delay of ten years and in that case the defendant's counsel had signed an affidavit that in his belief memories of witnesses had been impaired and that many records would no longer be available. It is only in cases of extremely lengthy delay, such as the ten years in the Martell case, that the concept of presumed prejudice [would] be considered. [51] Hallett, J.A. stated that “as general rule the defendant to succeed on an application for dismissal for want of prosecution must not only show inexcusable and inordinate delay but show that such delay has caused serious prejudice to the defendant's right to fair trial” (para. 10; emphasis by Hallett, J.A.). [52] In Savoie v. Fagan, supra, after motor vehicle accident, the plaintiff commenced actions in New Brunswick in September 1987 and in Nova Scotia in May 1988. He underwent an independent medical examination in April 1988. The defendants filed defence to the Nova Scotia action in June 1989. Dealing with the application to dismiss, Bateman, J.A., for the court, said, at paras. 4-8: Appellants’ counsel, Mr. Miller, had been provided with medical reports generated in the late summer and early fall of 1987. On September, 12, 1989, appellants' counsel wrote to Mr. Garson [plaintiff’s counsel] asking for any additional medical reports and copies of Mr. Savoie's law school file. He received no response. There was no further action until January 11, 1994, when the Prothonotary gave notice of intention to dismiss the action pursuant to Civil Procedure Rule 28.11, the case having been on the General List for more than three years. The notice called for an answer within 60 days to forestall dismissal of the action. On March 4, 1994, by letter, Mr. Garson, advised that his client intended to continue with the action. The request for medical records and additional information in Mr. Miller's letter of September 12, 1989, remained unanswered. On June 28, 1994, Raymond Wagner, Mr. Savoie's current counsel, advised that he was assuming conduct of the action. On July 18, 1994, counsel for the appellants acknowledged receipt of Mr. Wagner's letter and noted the years of inaction on the file. In reply, on July 29, 1994, Mr. Wagner advised that he intended to proceed with the matter and was gathering medical records which he would provide as soon as available. Hearing nothing, Mr. Miller again wrote to Mr. Wagner on August 29, 1994. He asked for an explanation for the prolonged delay in advancing the action. On September 19, 1994, Mr. Wagner advised that he had received several medical documents that he would provide after review. On the matter of delay, he responded that Mr. Savoie was of the view that his previous solicitor had not moved the matter forward efficiently. No further material being forthcoming, Mr. Miller again wrote Mr. Wagner on March 21, 1995, noting that the eighth anniversary of the accident was approaching and absent some action on the file he anticipated instructions to apply for dismissal for want of prosecution. Mr. Wagner replied indicating that he anticipated receipt of requested medical information shortly and intended to expeditiously pursue the matter. On August 16, 1995, Mr. Miller again wrote to Mr. Wagner. Receiving no response, Mr. Miller followed up with letters dated October 11, 1995 and December 8, 1995. On December 19, 1996, Mr. Wagner advised that he would forward volume of documents and settlement proposal in January of 1997. Such was not forthcoming. [53] The defendants applied for dismissal for want of prosecution in July 1997. The Chambers judge dismissed the application. On appeal, Bateman, J.A. held that the ten-year delay “was of sufficient length to give rise to presumption of prejudice” to the defendants/respondents (para. 20). She held that the plaintiff/respondent’s statement in his affidavit that “he does not believe that the appellants will be seriously prejudiced, that he has excellent recall of the events surrounding the accident and that he knows of no eroded memories in other witnesses” was “not sufficient to rebut the presumption of prejudice, bearing in mind the comments of McKeigan, J.A. in Martell...” (para. 23). She continued: The impact of delay can vary depending upon the nature of the case. In this regard, the comments of Macdonald, J.A. from Martell, supra are instructive. Although in dissent on the result, he said at p.554: In cases such as those arising out of motor vehicle accidents one can readily appreciate how delay of several years or longer can so affect the memory of witnesses as to what they saw and observed as to make it practically impossible for defendant to then properly prepare and present his case. [54] Bateman, J.A. held that the appellants had established prejudice, and set out the details: It is the appellants' submission that not only did the respondent fail to offer evidence sufficient to rebut the presumption of prejudice arising from the delay, but that the appellants had shown actual prejudice. agree. In particular the appellants say: (i) The respondent failed to respond to request in 1989 that the respondent provide his law school records. (The respondent had commenced attendance at Dalhousie Law School in 1983 and took leave of absence in 1986, graduating in 1990.) Those records are no longer available. (ii) In 1994 the respondent was asked to produce copies of income tax records, in relation to any loss of income claim. The respondent is now not certain what, if any, records are available for the pre‑1991 period. (iii) In August of 1994 the appellants requested all relevant medical reports and records relating to Mr. Savoie to that date. They were not produced. In particular the running chart notes of the doctor who treated him immediately after the accident have not been produced and the respondent does not know if they are available. (iv) The respondent does not know where the physiotherapist with whom he had extensive therapy after the accident is today. (v) The respondent has suffered series of accidents since the motor vehicle accident in 1987 in particular, boating accident in September of 1988, fall in April of 1995, fall down stairs in December of 1996, serious car accident in January 1996 resulting in closed head injury and fall on ice in January of 1997. The relationship of these accidents to the respondent's current state of health will be difficult to determine. Sorting out the complexities of the respondent's medical situation will be difficult as the appellants have not conducted further independent medical examinations after these events. (vi) While the respondent professed excellent recall of the events leading up to the accident, on cross‑examination at the application counsel for the appellants established that he is reported to have given substantially different estimates (to various medical professionals) of the speed at which the vehicle was traveling and the location in which the vehicle came to rest. The speed of the vehicle is particularly material on liability. [55] Based on these submissions, “the appellant had established that, should the action continue, there would be actual prejudice on both the question of liability and damages” (para. 26). The result of proceeding would be patent injustice. Bateman, J.A. said, at paras. 27-28: In my view, patent injustice would result if the action were permitted to proceed. make this determination taking into account the prejudice presumed to result from this inordinately lengthy delay; the fact that the delay was not adequately explained; the fact that the respondent is not an unsophisticated plaintiff, being both lawyer and involved in other personal injury actions at the relevant time; that there is serious issue of liability; that the respondent's professed excellent [recollection] of the events is suspect; that the appellants, although no onus lies upon them to do so, actively prompted the respondents to move the action along, and warned of this application some two years in advance. The words of Lord Diplock in Allen v. Sir Alfred McAlpine Sons Ltd. (1967), [1968] All E.R. 543 (Eng. C.A.) are apt. At p.553: Moreover, where the case is one in which at the trial disputed facts will have to be ascertained from oral testimony of witnesses recounting what they then recall of events which happened in the past, memories grow dim, witnesses may die or disappear. The chances of the court's being able to find out what really happened are progressively reduced as time goes on. This puts justice to the hazard. If the trial is allowed to proceed, this is more likely to operate to the prejudice of the plaintiff on whom the onus of satisfying the court as to what happened generally lies. There may come time, however, when the interval between the events alleged to constitute the cause of action and the trial of the action is so prolonged that there is substantial risk that fair trial of the issues will be no longer possible. When this stage has been reached, the public interest in the administration of justice demands that the action should not be allowed to proceed. [Emphasis by Bateman J.A.] [56] As such, the proceeding was dismissed. [57] In A.J.M. v. Children’s Aid Society of Cape Breton, 2006 NSCA 13 (CanLII), Hamilton, J.A. affirmed the chambers judge’s decision to apply presumption of prejudice where the delay was more than ten years. There had been no period of more than two years of consecutive delay. [58] In this case, the delay between the filing of the Statement of Claim and the application to dismiss is about nine years. More than 12 years have passed since the relevant events took place. This length of time creates an argument for presuming prejudice, particularly if accept RBC’s view that the case revolves around evidence of oral communications between the Plaintiffs and Mr. O'Neill. [59] On the other hand, it is imperative to consider the reasons for finding the delay to be inordinate and inexcusable, as this analysis will inform decision on whether or not the delay is “extreme” in the circumstances. [60] To presume prejudice to RBC puts heavy burden on the plaintiffs. If RBC is responsible for substantial part of the delay, or if some parts of the delay are excusable, it could be argued that this is not case of extreme, inordinate and inexcusable delay, as contemplated by Hallett, J.A. in Moir, supra. For example, the fact that RBC could have discovered Mr. O'Neill earlier will weigh against presumption. [61] As articulated in Clarke, supra, there must be causal connection between the delay and the prejudice, in particular, between the blameworthy conduct and the prejudice (paragraph 23). The nature of the prejudice will depend in the facts. In Clarke, although some documents had been destroyed and medical experts had relocated, this did not prejudice the defendant such that it was not possible to have fair trial. Also, liability was not live issue and the majority of the evidence on damages was documentary evidence. [62] Where liability is in dispute and the core of the case relates to oral communications between the parties, credibility will be significant issue. In such cases, the longer the delay, the more serious the prejudice. Lord Diplock said in Allen, supra, at p. 553: Moreover, where the case is one in which at the trial disputed facts will have to be ascertained from oral testimony of witnesses recounting what they then recall of events which happened in the past, memories grow dim, witnesses may die or disappear. The chances of the court's being able to find out what really happened are progressively reduced as time goes on. This puts justice to the hazard. If the trial is allowed to proceed, this is more likely to operate to the prejudice of the plaintiff on whom the onus of satisfying the court as to what happened generally lies. There may come time, however, when the interval between the events alleged to constitute the cause of action and the trial of the action is so prolonged that there is substantial risk that fair trial of the issues will be no longer possible. When this stage has been reached, the public interest in the administration of justice demands that the action should not be allowed to proceed. [63] In this case, there is significant documentary record of the transactions between Mr. O'Neill and the Plaintiffs. RBC says many aspects of the claim relate to communications and meetings between Mr. Kimball and Mr. O'Neill of which there is no record. Mr. Parrish does not aver in his affidavit that there is loss of records or memory, but in argument submits that Mr. O'Neill would have lost much of his recollection of the events. Neither party has suggested that relevant documents are missing. [64] RBC further submits that examinations for discovery have not been held, and the parties will thus not have the benefit of discovery transcript recorded closer in time to when the events occurred. It was, however, within RBC’s power to compel discoveries and mitigate the effects of the passage of time. It does not appear that the plaintiffs were aware until this application that RBC had been in contact with Mr. O'Neill, or that they knew of his whereabouts. [65] Moir v. Landry, supra, indicates that the period of delay where presumed prejudice should be applied would be limited to cases where the delay was extremely lengthy, as in Martell, Savoie and A.J.M. On the basis of these cases, am unwilling to make presumption of prejudice in this case. [66] Although it is the responsibility of the plaintiff to bring the matter on to trial and to conduct pretrial procedures with reasonable dispatch, am satisfied that Mr. O'Neill’s whereabouts were known to RBC, and do not accept that RBC can rely on its own failure to take steps to secure Mr. O’Neill’s evidence simply because it was not RBC’s responsibility to advance the proceeding. Admittedly, Mr. O'Neill apparently did not wish to cooperate and was unwilling to provide statement without being discovered. Faced with the position taken by Mr. O'Neill, RBC chose to wait and see whether the plaintiffs could secure his attendance at discovery. RBC chose not to discover Mr. O'Neill or to obtain his evidence by means of interrogatories or other pretrial procedures. RBC was within its rights to proceed (or not to proceed) in this manner, but it cannot rely on the resulting lack of evidence as basis upon which to find prejudice arising from delay. [67] have taken note of some Ontario caselaw that suggests that dismissal will not be granted where the defendant shares responsibility for the delay: see, for instance, Hacquoil Construction Ltd. v. Uptown Motor Hotels Ltd. (1976), C.P.C. 73, 1976 CarswellOnt 329 (Ont. S.C. (H.C.J.)) and Copenace v. Fort Frances Times Ltd. (1991), C.P.C. (3d) 64, 1991 CarswellOnt 374 (Ont. C.J. (Gen. Div.)). While these cases are not binding, and the Nova Scotia caselaw does not appear to go this far, this reasoning is of some persuasive value in considering the significance of the defendant’s own contribution to the delay. [68] RBC has argued that the evidence on various specific issues will be lacking due to the deterioration of witness recall. am not satisfied that the evidence can establish this. The evidentiary record is likely to be heavily documentary. This is not situation like motor vehicle accident, where the witnesses’ recollections are crucial. In the circumstances, even if there is a possibility of some prejudice, I do not believe that the defendant has established that the delay caused it serious prejudice (my emphasis). will nevertheless proceed to consider the balance between the parties’ positions. (iv) Balancing [69] In addition to the three-step test outlined above, the court must step back and assess the positions of the parties keeping in mind the draconian nature of the dismissal remedy. In the words of Lord Salmon, in Allen, supra: If the defendant establishes the three factors to which have referred, the court, in exercising its discretion, must take into consideration the position of the plaintiff himself and strike balance. If he is personally to blame for the delay, no difficulty arises. There can be no injustice in his bearing the consequences of his own fault. If, however, the delay is entirely due to the negligence of the plaintiff's solicitor and the plaintiff himself is blameless, it might be unjust to deprive him of the chance of recovering the damages to which he could otherwise be entitled. [70] While RBC has not established all three elements of the basis test, will nevertheless consider the additional balancing analysis, in the alternative. The plaintiffs urge the Court to consider that before the application to dismiss, RBC requested change of solicitor by them, and consented to an order requiring its List of Documents to be filed. Furthermore, after RBC was advised that the Plaintiffs were prepared to proceed with discoveries, it made without prejudice offer to settle. [71] The conduct of these parties falls between the extremes outlined by Lord Salmon. While there is certainly a significant amount of delay attributable to the Plaintiffs, RBC was also responsible for some delay. It is likely that both parties will be prejudiced by the effects of the passage of time on witness recall. note also that it is not suggested that witnesses’ recall will not be assisted by the availability of the documents; it appears that the documents and the oral evidence will relate to the same general circumstances and events. [72] In Clarke, supra, the Chambers decision was overturned on the ground that the issue balancing was not addressed. Saunders, J.A., for the Court of Appeal, reviewed the evidence before the Chambers judge “in order to assess Mr. Clarke's own conduct and strike fair and just balance between the parties,” and said, at para. ... cannot conclude that Mr. Clarke is personally to blame for the delay. Much of it can be explained from the fact that his first lawyer took full two years to commence the action; he was then suspended from the practice of law; the action was initially misconceived in that the true defendants were not discovered; and that after 1996, once Judgment Recovery (N.S.) Ltd. and other counsel were engaged, the claim was not pursued as aggressively as one might have hoped. That said there can be no doubt that there ensued substantial, fairly regular and meaningful exchanges of information and documentation among the parties and their counsel in recent years. Importantly, this has included an exchange of lists of documents such as employment records, hospital documentation and physicians' files and reports. All parties have filed their pleadings. The parties have voluntarily participated in case management conferences, the first held by Davison, J. on June 29, 2000, and the second on March 1, 2001, at which time the parties agreed that discoveries of the named parties would be held by July 31, 2001. In fact, arrangements for discovery examinations of the parties and some of the plaintiff's experts were initially scheduled for July, 2001, in Ottawa and in London, Ontario. Despite these initiatives to move the litigation forward and some indications in 1999 by counsel for Raheem Ismaily that he anticipated making an application to strike on the basis of delay, it was only in July and August 2001 that the respondents applied to strike the plaintiff's claim for want of prosecution. Having regard to these circumstances and other similar features that are apparent from the record, am of the opinion that it would be unjust to visit upon the appellant consequences that were not of his own making thereby depriving him of the chance to recover the damages for his injuries to which he would otherwise be entitled. [73] The facts of this case are not as strong as those in Clarke: discoveries have not been conducted, the plaintiffs themselves are more likely to blame for the delay and their loss is purely economic, while the plaintiff in Clarke was seriously injured. At the same time, RBC itself caused not inconsiderable periods of delay, and repeatedly conducted itself in such way as to give the plaintiffs the impression that it intended to proceed. RBC attributes its own delay to the collection and preparation of documents; the three-year delay attributed to the plaintiffs in responding to the Demand for Particulars concerned the preparation of similar documentation. Moreover, the Demand for Particulars requested details of conversations with Mr. O'Neill that could have been explored through the discovery process. [74] On balance, in view of the drastic nature of the dismissal remedy and the divided responsibility for the cumulative delay, I believe that the balance weighs in favour of preserving the proceeding. [75] Although there has been inordinate and inexcusable delay, am not prepared to hold that this is case of such delay as to require presumption of prejudice, nor can find that RBC has demonstrated the existence of actual prejudice. In any event, the balancing analysis would lead to the conclusion that the proceeding should be preserved. [76] Accordingly, the application is dismissed. The parties shall bear their own costs.

The action, originally filed in 2000, concerned allegations of breach of - fiduciary duty, trust, industry regulations/standards, contract; and claims of negligence and malpractice. These claims related to the actions of an investor formerly employed by the defendant. The matter had languished at a slow pace for many years. The evidence showed the plaintiffs had taken three years to reply to a demand for particulars. There was also delay when the defendant requested a change in the plaintiff's counsel (because of a conflict of interest). The defendant applied to dismiss the plaintiffs' action, claiming want of prosecution under the Rule 28.13 of the old Civil Procedure Rules (1972), and asserting it has suffered significant prejudice as a result of the delay such that it will be impossible to properly defend the claim. Application dismissed. While there has been inordinate delay (eight-and-a-half-years) attributable to the plaintiffs, the defendant is also responsible for some of the delay (another two-and-a-half-years). While the plaintiff's delay could be considered inexcusable if viewed in isolation, the defendant's contribution to the delay is not irrelevant. There were actions on the part of the defendant that could be interpreted as acquiescing to the delay. After considering the case law concerning the circumstances in which a presumption of prejudice will arise as a result of the passage of time, the court found no presumption of prejudice here. On the facts, there is not a sufficient causal connection between the delay/blameworthy conduct and the prejudice. There is a significant documentary record of the transactions. The defendant has been in contact with its former employee and could have taken the opportunity to discover him sooner. The defendant's failure to act to secure the evidence available to them at time mitigates the effects of the passage of time. While there is a possibility of some prejudice should the matter proceed, the defendant has not established it will suffer serious prejudice. Even if there was serious prejudice, the balance of convenience weighs in favour of the plaintiffs given that dismissing the action would leave them with no other recourse.

8_2009nssc351.txt

nan Q.B.J. A.D. 1995 No. 52 J.C.S. IN THE QUEEN'S BENCH JUDICIAL CENTRE OF SASKATOON BETWEEN: HER MAJESTY THE QUEEN and CUONG SAM, THONG NGUYEN, SHAWN L'HERAULT, KEN CHHAN D.G. Curliss for the Crown J.P. Kwok for the defendant, Cuong Sam N.J. Stooshinoff for the defendant, Thong Nguyen R.P. Piche for the defendant, Shawn L'Herault K.C. Coroi for the defendant, Ken Chhan FIAT LAING J. May 16, 1996 The Crown applies to have the witness Annette Cook,who is an unindicted co-conspirator in this matter andseparately charged with drug offences arising out of this sameinvestigation, declared adverse pursuant to s. 9 of the CanadaEvidence Act, R.S.C. 1985, c. C-5, on the basis that in thecourse of giving her evidence to date, she has demonstrated ahostile attitude towards the position of the Crown, and hascontradicted in a substantial way, her prior video-tapedstatement to police officers made shortly after her arrest. The Crown seeks to use her prior statement, not only for the purposes of impeaching her credibility at trial, but also as substantive evidence that may be left with the jury at the end of the trial. Position of the Parties It is the position of the Crown that it has satisfied the requirements for substantive use of the statement set out by the Supreme Court of Canada in R. v. K.G.B. (1993), 1993 CanLII 116 (SCC), 79 C.C.C. (3d) 257 and in R. v. U. (F.J.) (1996), 1995 CanLII 74 (SCC), 42 C.R. (4th) 133. The defence takes the position:(1)that Annette Cook is not adverse, but is now telling thetruth after lying about certain matters in her statement;(2)the statement was improperly obtained in breach of theconfession rules of voluntariness;(3)the statement does not meet the requirements set out in R.v. K.G.B., supra. In particular, the oath was not administered prior to the taking of the statement, and there was no warning provided at that time, of the perjury consequences of not telling the truth. They state it fails to meet the threshold of reliability. Video-taped Interview Annette Cook was arrested on August 15, 1994, at approximately 7:30 p.m. in possession of approximately four grams of cocaine, immediately after exiting an apartment building at 1901 22nd Street in the City of Saskatoon. She had been under surveillance, and the arrest was planned. She was given the standard police cautions and her rights with respect to legal counsel upon her arrest. She was co- operative from the outset. Immediately following her arrest and the "cautions", Constable Wylie asked her who had given her the cocaine. She replied "Thong did, he got it from the kitchen". At that point, Constable Wylie went back into the apartment building and arrested the accused Thong Nguyen. Shortly thereafter, Constable Wylie turned Ms. Cook over to Constable Morgan for transport. Constable Morgan also asked Ms. Cook who gave her the cocaine. She stated: "Thong gave it to me and said tell the guys to send over $750.00." Upon reaching the Detention Centre in the company of Constable Morgan she was placed private room and offered telephone. At 7:59 p.m. she called lawyer. Upon concluding the call, Constable Morgan asked if she had spoken to lawyer and she indicated she had. He asked her what advice she had received. She stated the lawyer told her "Not to say anything". Constable Morgan then asked her what she wished to do and she stated "I don't know". At this point Constable Morgan states he advised her that he wanted her to know that he would not be opposing her release the following morning. Ms. Cook asked "What does that mean?" Constable Morgan replied "We don't want you locked up before court. You have kids and you are pregnant we won't insist on locking you up until trial okay?" He asked her if she understood what he had said and she said yes. He then went on to say "I would like statement from you about your involvement in cocaine trafficking at 1111 23rd Street West." At this time he stated words to the effect: Now, if you are convicted of possession for the purpose of trafficking, will let the prosecutor know that you were helpful in assisting us in this investigation. nan can't promise you anything in exchange for your help. But can let the prosecutor know you were helpful. At this point Ms. Cook said "Do you think will go to jail?" Constable Morgan replied: "I don't know, but the prosecutor will know if you decide to co-operate with us". Ms. Cook replied okay. Constable Morgan then asked her if she would provide statement regarding her involvement with and knowledge of drug dealing at 1111 23rd Street West. She replied "Okay". Following her agreement to provide statement Constable Morgan proceeded to question her and she provided answers. Constable Morgan testified that when he realized the amount of information she had, he decided that it would be preferable if she was interviewed on video-tape. She agreed. Constable Morgan testified that he stressed to her that with respect to the taped interview, he wished her to tell only the truth and that if she didn't tell the truth, the prosecutor would question her credibility. At the commencement of the video-tape interview Ms. Cook was again warned that she need not say anything. She was also advised that nothing that was said to her by any police officer prior to the interview should influence her in any respect. She agreed she was not threatened or promised with any favours. She was asked why she was upset and she stated she was upset because she was arrested. She again agreed to give statement. The taped interview commenced at approximately 20:15, approximately 16 minutes after she had spoken to lawyer. It lasted approximately 50 minutes. At the commencement of the interview Ms. Cook appears upset and is crying and sniffling in quiet manner. As the interview progresses she appears to settle down and ceases to appear emotional. During the interview Constable Morgan and Constable Woodley were present. In the interview, Ms. Cook confirms the information she previously supplied to Constable Morgan and provides additional information about the activities of the four accused. It is fair to say her statement implicates all four accused in trafficking in narcotics. During the interview, she readily admitted that she had been picking up cocaine at 1901 22nd Street West for approximately two months prior to her arrest and delivering the same to house at 1111 23rd Street West where she delivered the same to either her cousin Leighton Cook, or to another individual who lived at the house named, Chin Nguyen. Both of these individuals are unindicted co-conspirators, and have had charges arising out of this same investigation disposed of. The procedure Ms. Cook described to Constable Morgan was that her cousin Leighton Cook would call her at home and tell her to pick up the cocaine. After receiving the call from her cousin, she would telephone telephone pager number 1-797-0381 which she said was carried by Thong's friends, Tony (evidence establishes is the nickname of the accused Cuong Sam) and Ken (Chhan). She would leave Leighton's telephone number on the pager and would then proceed to an apartment block at 1901 22nd Street West where she would make the cocaine pickup. In the interview she also provided the pager number of Thong Nyugen which she identified as 1-797-3554. Evidence in the trial indicates that the pager she identified as Thong Nguyen's was found in his apartment at the time of his arrest. The other pager number was registered to Chin Nguyen, and was carried by Cuong Sam at the time of his arrest. She indicated in the interview that when she attended at Thong's residence at apartment no. at 1901 22nd Street West sometimes Ken and Tony were there, but mostly it was just Thong. She stated that she had been provided cocaine by all three of these individuals, but she would always deliver it to her cousin Leighton Cook or to Chin Nguyen at 1111 23rd Street West. With respect to the accused, Shawn L'Herault, she stated that she had only met him several days before. She stated when she first met him he was buyer of cocaine and visiting her cousin Leighton. That on at least one occasion she observed him working the back door of the house at 1111 23rd Street West from which it is alleged retail cocaine sales took place and that he was involved in taking money and passing cocaine to retail purchasers. Annette Cook was released the following morning. One week later on August 22, 1994, she was requested to attend at the City Police Station by Constable Wylie and before justice of the peace she swore an affidavit which stated in part as follows: nan willingly provided information in video-taped interview to Constable Gavin Morgan and Constable John Woodley regarding my involvement in this particular investigation. At no time was given any promise or favour or threatened in any manner to provide this information. This information is true to the best of my knowledge and was provided to the officers of my own free will and choosing. Constable Wylie advised her that if there was anything she disagreed with in the affidavit she was free to indicate that. Prior to her swearing it he read it aloud to her and gave her the opportunity to read it herself. Constable Wylie agreed that prosecutor had requested an affidavit from Annette Cook and that the purpose for requesting it was to comply with the Supreme Court of Canada requirements in R. v. K.G.B., supra. Annette Cook testified at the preliminary inquiry. Her lawyer was present. At Vol. I, pp. 69-70, Question 200, she was asked if the video-taped statement was true and she stated it was. Shortly thereafter Crown counsel advised the Court that he would be applying for ruling under s. of the Canada Evidence Act for declaration of hostility on the part of Ms. Cook. It may be assumed that her answers up until that point in time differed to some extent from the contents of the video-tape. The preliminary inquiry adjourned prior to the conclusion of Annette Cook's testimony. She did not return to the preliminary inquiry and she was not cross-examined at all by counsel for the accused. One week before the trial commenced, Annette Cook reviewed the video-tape for the first time in the presence of her lawyer, city police officer, and prosecutor. The city police officer testified that at the time she confirmed her statements on the video-tape with minor exception. Ms. Cook's Testimony at Trial Ms. Cook testified before the jury, that she had not obtained the cocaine she had in her possession at the time of her arrest from Mr. Thong Nguyen, but rather had gone into the apartment and retrieved the same from under the sink in the bathroom without the involvement of Mr. Nguyen. She also testified she did not know if any of the co-accused had telephone pagers, denied she telephoned telephone pager number prior to attending at 1901 22nd Street West to arrange pickup, and denied that Cuong Sam or Ken Chhan ever provided her with cocaine at that location or any location. It was at this point the Crown requested that the jury be excused and this application was brought. Evidence on Voir Dire Prior to invoking the Milgaard procedure R. v. Milgaard (1971), 14 C.R. 34), Crown counsel asked Ms. Cook if reviewing the video-tape would assist her in recollecting facts. (Vide: R. v. Stewart (1977), 1976 CanLII 202 (SCC), 31 C.C.C. (2d) 497 at pp. 500 and 504 (S.C.C.). She denied that it would. She stated that at the time the video-tape was taken she was high on cocaine and pregnant and she said things that were not true. She said she was concerned about what was going to happen to her and she "Made up most of it". She stated most of her video-taped statement with respect to the accused in this matter, was false. It should be stated that at the time of her arrest, Ms. Cook was 19 years old, the mother of four children, and was eight and one-half months pregnant with her fifth child. After receiving the foregoing answers the Crown then invoked the Milgaard procedure and proceeded to take her through the video-tape and ask her at each relevant stage whether the answers she had provided she could now recall and if so, whether they were true or false. fair summary is that Ms. Cook denied every answer she had provided on the video-tape that implicated any of the accused. She readily agreed with the statement she had given with respect to her own personal involvement and the involvement of her cousin, Leighton Cook, and Mr. Chin Nguyen. In the course of the video-taped interview, she had exonerated her father, Edwin Gullickson, from any involvement in dealing with cocaine. She agreed that her evidence in this respect was false and confirmed her father has in fact, plead guilty and is presently incarcerated with respect to his involvement in this matter. Constable Morgan indicated he knew at the time of the video-taped interview her statements in this respect were false because he had independent evidence of Mr. Gullickson's involvement. He stated he did not make an issue of it because he considered it natural that she would wish to protect her father. Section Ruling am satisfied, and did not understand defence counsel to challenge, that the video-taped interview given by Annette Cook is inconsistent with the evidence she has provided so far in the trial, and is inconsistent with what she now states is the truth. The thrust of the defence argument against the ruling that she is adverse, is that she was vulnerable at the time of her arrest, and was induced by police officer to provide statement that would benefit her personal position. They state that because she was under arrest and to be charged with possession of narcotics for the purpose of trafficking, her statement is only admissible if it meets the test of voluntariness applicable to confessions. They say it does not. They state she should not be ruled an adverse witness on the basis of an involuntary statement. As will touch on later, an inconsistent statement is not the only basis on which ruling of adversity can be made. (Vide: R. v. Cassibo (1983), 1982 CanLII 1953 (ON CA), 70 C.C.C. (2d) 498. However, the issue of voluntariness of the statement is relevant when considering whether prior statement should be ruled inconsistent or can be used substantively pursuant to R. v. K.G.B., supra. There is no issue of Annette Cook not being aware that she could choose to remain silent. She had been cautioned accordingly by the police officer, and had been so advised by legal counsel. Therefore, there is nothing unfair or that would bring the administration of justice into disrepute in the police request for statement. (Vide: McLachlin J. in R. v. Hebert (1990), 1990 CanLII 118 (SCC), 77 C.R. (3d) 145 at p. 175 et seq.). Defence counsel say her statement was induced by promise of advantage. In this case, they allege two such inducements: (1)That the police would not oppose Annette Cook's release on remand despite the fact there was reverse onus on her under the Narcotic Control Act; (2)That if she was convicted on the charges she was facing, the police would advise the prosecutor that she had co-operated in their investigation. They state the foregoing inducements were offered at time she was vulnerable emotionally due to her arrest and her family situation. In her testimony on the voir dire Annette Cook testified: (1)That she gave the statement because she thought it would help her. (2)She said anything that came into her mind just to get it over with. (3)That she implicated the accused because they "were around". (4)She stuck with her story about the tape being true until this trial, because she was afraid to admit she had lied. (5)She agreed in general terms that no threats or promises had been made to her by the police officers as she understood those terms. As to the inducements alleged, accept the evidence of Constable Morgan that she would not be held on remand, was unconditional in its terms, (R. v. Fairfield (1993), 39 W.A.C. 17 (B.C.C.A.)) and should have been so understood by Annette Cook. therefore do not consider this statement an inducement. With respect to Constable Morgan's statement that he would tell the prosecutor of the accused's cooperation, the first thing to be noted is that he did not promise any results with this communication. Such statements from police officers have to be looked at in the context in which they are made. (Vide: D.P.P. v. Ping Lin (1976), 62 Cr.App.R. 14 (H.L.); R. v. Hatton (1978), 1978 CanLII 2398 (ON CA), 39 C.C.C. (2d) 281; R. v. Reyat (1993), 80 C.C.C. (3d) 210.) The context in this case, was that Constable Morgan was looking for Annette Cook's assistance to further the investigation with respect to third parties. Based on the surveillance evidence and the cocaine she had in her possession at the time of her arrest, he already had sufficient evidence against her to support charge of possession of cocaine for the purpose of trafficking. This is not factual situation in which the accused person had much down-side in speaking to the police. It is my opinion that Annette Cook concluded she could help herself, as opposed to hurt herself, in making the statement she did. It was business decision regularly made by accused persons who are asked to cooperate. As noted above, she had been willing to offer information to the police officers from the moment of her arrest. It is my view, that Constable Morgan's statement simply encouraged her to make statement she was otherwise inclined to make. The fact that her motivation to do so was to help herself is factor to be taken into account in assessing the reliability of her statement as it relates to third parties, but it does not affect its voluntariness. am satisfied, applying the burden of proof of beyond reasonable doubt, that her statement was voluntary and would be admissible against her. With respect to other evidence am to consider with respect to this application, am satisfied that Annette Cook demonstrated, both in her attitude and in her responses, an adverse position to the Crown. This was most obvious in her pliant responses to anything suggested to her by defence counsel. On the other hand, her responses to Crown counsel's questions were curt, aggressive, and defensive. Taking the foregoing into account as well her inconsistent statement, conclude she is adverse to the Crown within the meaning of s. of the Canada Evidence Act. The Crown is therefore entitled to use cross-examination in the balance of its questioning of her. Substantive Use of the Statement The next question to be addressed is whether the Crown is entitled to place Annette Cook's prior statement (edited to exclude inadmissible portions) before the jury as substantive evidence in the trial. A prior inconsistent statement cannot be introducedin evidence for its substantive content, unless the requirementof necessity, and a threshold of reliability arrived at on abalance of probabilities are established. R. v. K.G.B., supra). When a witness recants, the requirement of necessityis established (R. v. U. (F.J.), supra), and so it is in thiscase. The real issue is whether the prior statement meets thetest for reliability. In U. (F.J.), supra, Lamer C.J. reviewed again the criteria for establishing the threshold of reliability set out in the earlier decision of R. v. K.G.B. He emphasized that the criteria are flexible. He noted: (1)The most important criteria identified is the right of opposing counsel to cross-examine the party providing the prior inconsistent statement in order that the trier of fact may assess the credibility of the same. This criteria is met in this instance. (2)That there be available to the trier of fact "demeanour" evidence which will assist the trier of fact in assessing the credibility of the statement made. The best form of demeanour evidence is video-tape, and the same is available in this matter. (3)The third criteria which is absent in this case, is the administration of contemporaneous oath or affirmation, accompanied by warning that the witness could be subject to perjury charges if the statement turns out to be untrue. In this case, an oath was administered to Annette Cook one week following the video-taped statement in which she swore generally that everything she had said in the statement was true without again viewing that statement. At this time, she knew, and the police knew, that portion of her statement was untrue in which she exonerated her father from any involvement in drugs. She nevertheless swore the affidavit. am of the view, there simply was not enough solemnity attached to the occasion of her swearing the affidavit, to "bring home to her" in the manner contemplated by Lamer C.J. in the foregoing decision, that the oath she was taking would have the same effect as if she was testifying in court before judge. As noted above there was no discussion with her on the consequences of lying. Nevertheless, she did swear that her statement was true within period of time reasonably close to when she made the statement, and such oath viewed objectively, does place her statement one step up from an unsworn statement. As noted above, the witness again swore at the preliminary inquiry that the contents of her video-taped statement were true, while at the same time she apparently offered evidence different from her statement. What defence are really arguing with respect to the oath criteria is that the reliability threshold is not met, even if the witness is sworn and warned prior to giving the statement, when it is subsequently known that at least portion of the statement is false. In other words, form should not override substance. If all or most of the statement was demonstrably false, would agree. However, as with any other testimony offered in the courtroom, the trier of fact is free to accept all, some, or none of the testimony offered. When, as here, there is only one demonstrably falsepiece of testimony in the statement, which does not implicateanyone, but rather attempts to exonerate someone, I am notprepared to say that ipso facto the balance of the statementis unreliable. It is to be noted that the Supreme Court in R. v. U. (F.J.), supra, at p. 149-50 indicated the reliability threshold can be met in the absence of an oath where appropriate substitutes for the oath exist. nan It follows from Smith that there may be situations in which the trial judge concludes that an appropriate substitute for the oath is established and that notwithstanding the absence of an oath the statement is reliable. nan The existence of corroboration is another way of determining the reliability of testimony. In R. v. C.(B.) (1993), 1993 CanLII 8564 (ON CA), 80 C.C.C. (3d) 467, Finlayson J.A. at p. 473 noted the relaxed definition of corroboration as articulated in R. v. Vetrovec (1982), 1982 CanLII 20 (SCC), 67 C.C.C. (2d) (S.C.C.): nan Corroboration is evidence which confirms witness's testimony making the testimony more likely to be true. nan In this case there is evidence introduced on the voir dire which confirms Annette Cook's prior statement in at least number of important particulars. Such evidence includes: (1)She identified from memory two telephone pager numbers, one of which she stated she would call prior to attending at 1901 22nd Street West to pick up cocaine. One such pager was found at the residence of Thong Nguyen at the time he was arrested. The other pager is registered to an unindicted co- conspirator, Chin Nguyen, and was found on the accused Cuong Sam at the time of his arrest. (2)She stated that she would make the telephone call to the pager numbers from pay phone. Independent surveillance evidence confirms that she would stop on route at pay phone and place call. (3)She stated that most of the time she received the cocaine at 1901 22nd Street West from Thong Nguyen. Independent surveillance the day before her arrest observed the accused Thong Nguyen arrive by car at 1901 22nd Street West at approximately the same time Annette Cook did, and they entered the apartment building together. (4)She indicated she would travel to pick up the cocaine by taxi. Independent surveillance evidence confirms this. (5)She stated she would deliver the cocaine to 1111 23rd Street West. Independent surveillance evidence confirms this. The foregoing independent evidence does not corroborate everyaspect of Annette Cook's statement, but does so sufficiently,in enough different particulars, that I am satisfied on thebalance of probabilities that her statement, but for thedemonstrably false portion, meets the threshold ofreliability. It follows that Annette Cook's prior statement maybe introduced in evidence for the substantive truth of itscontents. It will be for the jury to decide after receivingappropriate instructions with respect to the evidence of anaccomplice, and the evidence of a person who has providedinconsistent testimony, what, if any, portions of suchstatement they wish to accept.

FIAT. The Crown applied to have a witness, who was an unindicted co-conspirator and separately charged with drug offences arising out of the same investigation, declared adverse pursuant to s9 of the Canada Evidence Act. She had contradicted her prior video taped statement made shortly after her arrest and had demonstrated hostile attitude towards the Crown. The defence took the position that she was now telling the truth; that the statement was improperly obtained in breach of the confession rules of voluntariness and the statement did not meet the requirements set out in R. v. K.G.B. HELD: The witness' prior statement may be introduced in evidence for the substantive truth of its contents. It will be for the jury to decide what, if any, portions of such statement they wish to accept. 1)A prior inconsistent statement cannot be introduced in evidence for its substantive content, unless the requirement of necessity, and a threshold of reliability arrived at on a balance of probabilities are established. When, as here, a witness recants, the requirement of necessity is established. The real issue is whether the prior statement meets the test for reliability. When, as here, there is only one demonstrably false piece of testimony in the statement, which does not implicate anyone but rather attempts to exonerate someone, the Court was not prepared to say ipso facto the statement is unreliable. 2)The independent evidence sufficiently corroborated her statement in enough different particulars that, but for the demonstrably false portion, it met the threshold of reliability.

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nan Bankruptcy No. 4700 Estate Nos. 025924 J.C.R. IN THE QUEEN'S BENCH PROVINCE OF SASKATCHEWAN IN BANKRUPTCY AND INSOLVENCY IN THE MATTER OF THE BANKRUPTCY OF JERRY ABRAHAM GIESBRECHT Jerry Abraham Giesbrecht, bankrupt Anne E. Hardy, for the bankrupt Marla Adams, Deloitte Touche Inc., Trustee JUDGMENT MAURICE J. HERAUF, October 16, 1998 Registrar in Bankruptcy The bankrupt has applied to annul his bankruptcy. Section 181 of the Bankruptcy and Insolvency Act reads as "(1) Where, in the opinion of the court, receiving order ought not to have been made on an assignment ought not to have been filed, the court may by order annul the bankruptcy." The bankrupt`s submission is twofold. Firstly thatthe bankrupt received misinformation or had amisunderstanding concerning the effect of an assignment onthe status of potential builders` lien claimants andsecondly the undervaluation of his assets. Along withthose two grounds the bankrupt also asserts that thebankruptcy proceedings are of no value to him. am not going to repeat the facts in detail. The bankrupt submits that he received wrong legal advice concerning the status of the builders` lien claimants. In essence, he states he "thought" he was advised that the various subcontractors would not be able to pursue claims against the home he was constructing or against himself. Of course, as it turns out the builders` lien claimantshave status akin to secured creditors and can pursue thebankrupt personally for any deficiency that may arise ifthe home is sold and the proceeds divided among theclaimants. On the other hand, the trustee maintains the bankrupt was repeatedly advised or cautioned that bankruptcy may not effect the majority of his creditors, ie: those relating to the construction of his home. With respect to the value of his assets the bankrupt estimated the value of his unfinished home at $40,000.00. He has since obtained appraisals which place the value at up to $150,000.00. The bankrupt is now eligible to obtain mortgage financing of over $96,000.00. One of the conditions for the financing is that the bankrupt get out of bankruptcy. Hence, this application. It should also be mentioned that prior to bankruptcy the bankrupt attempted to deal with his financial problem through the orderly payment of debts. He also considered proposal post-bankruptcy but found out on an informal basis that it would be defeated. There is likely merit to the bankrupt`s contention that the bankruptcy proceedings have been of no value to him. It also appears from the facts that the majority of creditors, who are secured, would also benefit from the bankrupt`s request being granted. If, as the bankrupt states, an annulment of the assignment would allow him to obtain financing it would likely result in these creditors being paid in full, much more expeditiously than it would otherwise take. Certain of the builders` lien claimants have already commenced an action. There are other actions by secured creditors returnable in Queen`s Bench as early as next week. According to the trustee, the bankrupt has been far from model bankrupt. He has yet to file monthlyfinancial statements and has not made payments as agreed tocover the costs of the administration of the estate. have carefully reviewed the decisions relating to this issue including Re Wale (1997) 1996 CanLII 8275 (ON SC), 45 C.B.R. (3d) 15 (Ont. Gen. Div.) and Re Louis Peter Co. (1988), 67 C.B.R. (N.S.) 176 (Ont. S.C.) Section 181 vests wide discretion in the court when considering an application to annul the assignment. have not been convinced that should exercise this discretion in favour of the bankrupt. The bankrupt met the definition of an insolvent personat the date of the assignment. It would be dangerous toset a precedent which would allow an application like thisto be successful because of circumstances that havetranspired post bankruptcy. An improved financial situation and the ability to pay debts in full should not be used as criterion to launch section 181 application. Having come to this conclusion feel compelled to point out other options to the bankrupt. The bankruptwould be entitled to an automatic discharge on November 15,1998. The onus will be on the bankrupt to comply with therequirements of the trustee in order to qualify for anautomatic discharge. The bankrupt also has the ability to apply for anearly discharge before that time as provided for in section168.1(2) of the Act. Once again the bankrupt mustcooperate with the trustee in order to ensure that he hascomplied with his duties in order to avoid an objectionbeing filed by the trustee. In the end result the application by the bankrupt foran order annulling his assignment is dismissed. Registrar in Bankruptcy

The bankrupt applied to annul his bankruptcy on the grounds that he received misinformation or had a misunderstanding concerning the effect of an assignment on the status of potential builders' lien claimants and because his assets had been undervalued. He also asserted that the bankruptcy proceedings were of no value to him as builders' lien claimants have status akin to secured creditors and could pursue the bankrupt personally for any deficiency that may arise if the home is sold and the proceeds distributed among the claimants. The trustee maintained the bankrupt was repeatedly advised or cautioned that bankruptcy may not affect the majority of his creditors. Subsequent appraisals placed the value of his unfinished home at $150,000 rather than $40,000. The bankrupt was now eligible to obtain mortgage financing but first had to get out of bankruptcy. The bankrupt had attempted an orderly payment of debts prior to bankruptcy and had considered proposal post-bankruptcy. HELD: The application for an order annulling the assignment was dismissed. 1)The bankrupt met the definition of an insolvent person at the date of the assignment. It would be dangerous to set a precedent which would allow such an application because of post-bankruptcy circumstances. An improved financial situation and the ability to pay debts in full should not be used as criteria to launch section181 application. 2)The bankrupt had not filed monthly financial statements nor made payments as agreed to cover the costs of the administration of the estate. The onus will be on the bankrupt to comply with the requirements of the trustee to qualify for an automatic discharge on November 15/98 or an early discharge as provided for in s168.1(2).

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J.C. Y. IN THE QUEEN'S BENCH JUDICIAL CENTRE OF YORKTON BETWEEN: STEPHIE SOKULSKI PLAINTIFF (APPLICANT) and DWAYNE SOKULSKI DEFENDANT (RESPONDENT) and THE LUMSDEN HOTEL and THE ROYAL BANK OF CANADA GARNISHEES R.A. Leland for the applicant No one appearing for the respondent. No one appearing for the garnishees. JUDGMENT GUNN J. September 28, 1995 Stephie Sokulski ("the applicant") applies for anorder pursuant to s. 14 of The Attachment of Debts Act, R.S.S.1978, c. A-32 ("the Act"), paying out to her certain moniespaid into court by the Royal Bank of Canada and by MartindaleHoldings Ltd. (The Lumsden Hotel) plus the interest thereon. Dwayne Sokulski ("the respondent") was personally served with notice of this application, but he did not appear. The applicant obtained judgment against the respondent May 11, 1987, in the Court of Queen's Bench for the province of Alberta. The judgment was registered as judgment of the Court of Queen's Bench for Saskatchewan July 7, 1987, in the sum of $11,634.74. garnishee summons naming the Royal Bank as the proposed garnishee was issued on November 26, 1987, and served on the Royal Bank November 30, 1987. The Royal Bank paid the sum of $50.11 into court December 2, 1987. garnishee summons naming the Lumsden Hotel as the proposed garnishee was issued on December 15, 1988, and served on the Lumsden Hotel on January 9, 1989, and January 28, 1989. The respondent was served with the garnishee summons January 24, 1989. Martindale Holdings Ltd. (The Lumsden Hotel) paid the following sums into court: 1. February 9, 1989 $33.87 2. March 7, 1989 $99.57 3. April 17, 1989 $66.72 4. May 5, 1989 $66.72 5. June 13, 1989 $66.72 THE LEGISLATION The relevant provisions of the Act are as follows: 5(1) Service of the summons on the garnishee shall bind any debt due or accruing due from the garnishee to the defendant or judgment debtor and all wages or salary that become due or payable at any time within five days after service of the summons. (3) copy of the garnishee summons shall be served on the defendant or judgment debtor, or his solicitor, within 20 days after service on the garnishee, or within such further time as the court or judge may order ex parte. 14(1) No order shall be made against the garnishee or for payment out of any money paid into court by the garnishee, until at least ten days after service of the summons on the defendant or judgment debtor and on the garnishee, nor when garnishee summons issues prior to judgement[sic] until the plaintiff has recovered judgment against the defendant. DISCUSSION There are number of deficiencies in the procedure adopted. The respondent was never served with the garnishee summons naming the Royal Bank as garnishee. With respect to the Lumsden Hotel, there is evidence it was served on two occasions with garnishee summons, but it paid money into court on five occasions. The judgment debtor appears only to have been served with the garnishee summons once. There has been no application by the judgment debtor to set aside either garnishee summons garnishees, nor did he appear to speak to the application for payment out. The applicant invites me to exercise my discretion to allow the money to be paid out, given the passage of time, even with all of the above deficiencies. The total amount paid into court by both garnishees was $383.71. Interest accrued to the amount paid into court equals $197.92 for total sum of $581.63 remaining in court. The question is whether, considering the deficiencies, there is any authority for the court to exercise its discretion to order the money to be paid out to the plaintiff. The court has exercised its inherent power to controlits own process in garnishment proceedings on a number ofoccasions. In Kroma Kolor Photo Labs v. Snyder et al. (1991), 1991 CanLII 7588 (SK QB), 98 Sask. R. 257 (Q.B.), Halvorson J. expressly exercised this discretion to resolve matter not within the purview of the Act. Halvorson J. ruled that ss. 11(1) of the Act did not empower the court to set aside judgment entered against non-appearing garnishee pursuant to motion under s. 18 of that Act. However, Halvorson J. held the court had jurisdiction to intervene based on its inherent power to supervise its own process. Consequently, Halvorson J. exercised this discretion and set aside the judgment obtained against non-appearing garnishee. With regard to the power of superior court to pay money out of court, Sorsdahl v. Dahl House Inc., [1991] W.W.R. 730 (Sask. C.A.) is instructive. In that case the appellant appealed decision of chambers judge ordering the return of money mistakenly paid into court by garnishee. Cameron J.A. speaking for the court said the following at pp. 730-731 of his judgment: Whether or not power exists in the court under the Attachment of Debts Act to return money paid in by mistake is neither here nor there, for in our opinion the court enjoys general power to do so. It would be incongruous were it otherwise. The court, after all, is superior court, charged generally with the administration of justice, and enjoys inherent as well as statutory jurisdiction. Were there no other source of power to rectify mistakes of this nature, the court could draw upon its inherent powers to do so. An example of the exercise of the court's inherent power is found in decision of Johnson C.J.Q.B. in Bank of Nova Scotia v. Bulych, MacEachern, Richardson, Lovell and Sydco Management Ltd. (1981), 1981 CanLII 2416 (SK QB), 13 Sask. R. 332 (Q.B.) where he upheld lower court ruling setting aside two pre-judgment garnishee summons. As consequence of the invalidity of the summons, the court was asked to determine who should receive monies already paid into court. The plaintiff contended that the court should pay the money out to the garnishees. In response, Johnson C.J.Q.B. stated at pp. 334-335 of his judgment: Counsel for the plaintiff contends that the status quo immediately prior to service of the defective documents should be restored and the money should be paid back to the garnishees. With the utmost respect it is my view that the money should be paid to the defendants. Each of the garnishees paid the money into court and by their respective acts they acknowledged that the funds in question were owned by the defendants to whom each was indebted. There is no good case in my view for the funds to be paid back to the respective garnishees. Accordingly after the time for appeal has elapsed and if no appeal is taken the funds, including any accrued interest, will be paid to each of the defendants. Although not expressly stated, Johnson C.J.Q.B. utilized the inherent powers of the court to direct payment out of money paid into court under an invalid garnishee summons. Perhaps the most persuasive case is Kirby v. Townsend (1988), 1988 CanLII 5256 (SK CA), 72 Sask. R. 12 (C.A.) reversing in part 1988 CanLII 5217 (SK CA), 72 Sask. R. (Q.B.) where Tallis J.A. speaking for the court, upheld an order setting aside pre-judgment garnishee summons. However, Tallis J.A. further held that the chambers judge erred by "freezing" the money already paid into court under the invalid garnishee summons pending resolution of the trial of the action. Rather, the court stated that the chambers judge should have directed that the monies "be forthwith paid out to the defendants" (at p. 15). However, Tallis J.A. also noted that, by reason of the court's earlier statements upholding the trial decision of the action, payment of the monies out of court to the defendant was no longer an issue. He stated at p. 15: There is, however, complicating factor because the plaintiff succeeded at trial and recovered judgment from which an appeal has now been dismissed today. If the defendants had brought this garnishment appeal forward in timely way, we would have directed that the monies be paid out to them but now that the plaintiff has successfully resisted the appeal from the trial judgment, we decline to do so. The monies now in court are available for payment of the judgment. However, we emphasize the clear error of the learned Chamber judge in making the order that he did and wish to make it clear that this practice should not be followed in future. Accordingly am satisfied in the circumstances before me that the monies paid into court by the Royal Bank and the Lumsden Hotel are available for payment of the plaintiff's judgment notwithstanding the deficiencies. I amalso satisfied the court has the discretion to order thepayment of the money to the plaintiff as a judgment creditor. I order that the monies held in court to the creditof this cause be paid to the plaintiff. I make no order as tocosts as this chambers application would have been unnecessaryhad the proper procedures been followed in the first instance.

The Plaintiff applied for payment out of certain monies paid into court in response to 3 garnishee summons served on 2 garnishees after judgment. The first summons was never served on the Defendant. Of the other 2, only 1 was served on the Defendant. Further, although 1 garnishee was only served twice, it paid monies into court on 5 occasions. There was no application to set aside any of the garnishee summons' by the Defendant and he did not appear on this application. HELD: Application allowed. 1)The court has an inherent power to control its own process in garnishment proceedings. 2)The court also has the discretion to order the payment of the money to the plaintiff as a judgment creditor. 3)The chambers judge ordered that the monies held in court to the credit of this cause be paid to the plaintiff, but made no order as to costs.

c_1995canlii6136.txt

Q.B. No. 1051 A.D. 1994 Estate No. 021092 J.C.S. IN THE COURT OF QUEEN'S BENCH JUDICIAL CENTRE OF SASKATOON IN THE MATTER OF THE BANKRUPTCY AND INSOLVENCY ACT BETWEEN: SASKATCHEWAN ECONOMIC DEVELOPMENT CORPORATION and COOPERS LYBRAND LIMITED, TRUSTEES IN BANKRUPTCY RESPONDENT M.M. Tobin for the applicant G.J. Den Brok, manager of the trustee for the respondent JUDGMENT HRABINSKY J. May 2, 1994 This is an application for an order pursuant to s. 135(4) of the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3 and amendments thereto, granting the applicant's appeal of the trustee's decision to disallow the applicant's security. The ground on which this application is broughtis that the applicant\'s security interest was not registereddefectively, according to The Personal Property Security ActRegulations. In the alternative if the applicant\'s securityinterest is found to have been registered defectively, s.66(1) of The Personal Property Security Act, S.S. 1979-80, c.P-6.1, should be applied to remedy such defect. FACTS On February 15, 1993 the applicant advanced $5,000.00 to Joan E. Fladseth via the Martensville Small Business Corporation. Joan E. Fladseth executed demand promissory note and security agreement in favour of the Martensville Small Business Corporation which corporation executed an assignment of its interest in the assets of Joan E. Fladseth to the applicant. The demand promissory note and the security agreement were both executed in the following manner: "Mrs. Joan E. Fladseth op. as Joan E. Craft and Supplies". On March 22, 1993 the applicant registered its interest in the assets of Joan Elaine Fladseth and in the assets of the business debtor, Joan E. Craft and Supplies. However, in doing so, the applicant misspelled "Fladseth" as "Eladseth" on the financing statement. On February 15, 1994 Joan E. Fladseth filed an assignment in bankruptcy and in her statement of affairs she named Martensville Small Business Corporation as secured creditor in the sum of $4,000.00. The trustee in bankruptcy disallowed the applicant's secured party claim for $4,105.91 on the ground that the applicant did not properly register its security interest. The applicant appeals that decision pursuant to s. 135 of the Bankruptcy and Insolvency Act. Section 135 reads: 135.(1) The trustee shall examine every proof of claim or proof of security and the grounds therefor and may require further evidence in support of the claim or security. (2)The trustee may disallow, in whole or in part, (a)any claim; (b)any right to priority under the applicable order of priority set out in this Act; or (c)any security. (3) Where, pursuant to subsection (2), the trustee disallows, in whole or in part, any claim, any right to priority or any security, the trustee shall forthwith provide, in the prescribed manner, to the person whose claim, right to priority or security was disallowed, notice in the prescribed form setting out the reasons for the disallowance. (4) disallowance referred to in subsection (2) is final and conclusive unless, within thirty day period after the service of the notice referred to in subsection (3) or such further time as the court may on application made within that period allow, the person to whom the notice was provided appeals from the trustee's decision to the court in accordance with the General Rules. (5) The court may expunge or reduce proof of claim or proof of security on the application of creditor or of the debtor, if the trustee declines to interfere in the ISSUES 1.Did SEDCO register its security interest in the businessassets of the bankrupt, Joan E. Fladseth, in accordance withThe Personal Property Security Act and the Regulationsthereunder? 2.If SEDCO did not register its security interest inaccordance with The Personal Property Security Act and theRegulations thereunder, can s. 66(1) of The Personal PropertySecurity Act be applied to cure the defect? LAW Part IX of the Regulations of The Personal Property Security Act sets out the particulars of content of form. The pertinent portions of Regulation 35 read as 35(1) Where an individual is debtor, the name to be set out in the financing statement or financing change statement in the area designated for "individual debtor" is the surname followed by the first given name and the second given name or initial, if any. (2) Where an artificial body is debtor, the name to be set out in the financial statement or financing change statement in the area designated for "business debtor" is, where the artificial body is: (h) any artificial body, other than one described in clauses (a) to (g): (i) the name of the artificial body; and (ii) the name of each person representing the artificial body in the transaction giving rise to the registration and, where such person is: (A) an individual, the information required under subsection (1); or (B) an artificial body, the information required under this subsection. (4) Where person named as debtor carries on business under name or style other than his own name, this name may also be separately set out on financing statement or on financing change statement in the area of the form designated for business debtor name in accordance with subsection (2). Although the registration against Joan E. Craftand Supplies complied with the Regulations, the registrationagainst Joan E. Fladseth did not. Accordingly, the issue is whether s. 66(1) of The Personal Property Security Act should be applied to cure the defect. Section 66(1) reads: 66.-(1) The validity or effectiveness of document to which this Act applies is not affected by reason of defect, irregularity, omission or error therein or in the execution or registration thereof unless the defect, irregularity, omission or error is seriously misleading. find that the error in this instance was not seriously misleading. The applicant is the only secured party and the trustee had notice of the security interest. The applicant incurred risk by advancing credit and obtained security interest and registered financing statement to protect its interest. The applicant acted within The Personal Property Security Act and Regulations thereunder but in so doing it committed an error by placing an "E" instead of an "F" for the first letter of the debtor's surname. The trustee appeared late on the scene and has never incurred any risk. It never acted on the financing statement containing the error. The trustee has not been misled, has not been prejudiced and has not acted to its detriment. This is a matter where s. 66(1) of The PersonalProperty Security Act should be applied. To hold otherwisewould result in an underserving windfall to unsecuredcreditors who have not been misled. Applying s. 66(1) of The Personal Property Security Act find that the financing statement of the applicant is validly registered. In reaching my conclusion have referred to numerous decisions including International Harvester Credit Corporation of Canada Limited v. Frontier Peterbilt Sales Ltd., 1983 CanLII 2356 (SK QB), [1983] W.W.R. 328; Elmcrest Furniture Manufacturing Ltd. v. Price Waterhouse Ltd. as Receiver and Manager of 216200 Alberta Ltd. (1985), 1985 CanLII 2783 (SK QB), P.P.S.A.C. 22; Royal Bank v. Agricultural Credit Corp. of Sask. (1991), P.P.S.A.C. (2d) 338; Ford Credit Can. Ltd. v. Percival Mercury Sales Ltd. (1986), 1986 CanLII 3248 (SK CA), P.P.S.A.C. 288 (Sask. C.A.) and Peat Marwick Ltd. v. G.M.A.C. of Can. Ltd., [1990] 282. The appeal from the trustee's decision is allowed. The parties are given leave to speak to costs.

Saskatchewan Economic Development Corporation (SEDCO) made a business loan to Fladseth, but misspelled her name in its PPSA registration as Eladseth. It also properly registered against her trade name, 'Joan E. Craft Supplies'. After her assignment in bankruptcy, the trustee disallowed Sedco's security on the basis that its registration was defective. Sedco appealed this decision under section 135 of the Bankruptcy Act. ISSUES: 1)Did Sedco register its interest in accordance with the PPSA Regulations? 2)If not, can the registration be cured under section 66 of the PPSA? HELD: 1)The personal registration did not comply with the PPSA Regulations. The registration against the trade name was proper. 2)This is a matter where section 66 should be applied. To hold otherwise would result in an undeserving windfall to unsecured creditors who have not been mislead.

3_1994canlii5118.txt

IN THE PROVINCIAL COURT OF NOVA SCOTIA R. v. Cater 2012 NSPC 18 Date: March 14, 2012 Docket: 1997518 to 1997550; 2035773 to 2035784 Registry: Halifax BETWEEN: Her Majesty The Queen Kyle Cater TRIAL DECISION Editorial Notice Two telephone numbers have been removed from this electronic version of the judgment. JUDGE: The Honourable Anne S. Derrick HEARD: February 13, 14, 15, 16, 17, 21, 22, 23, 24, 27, March 1, 5, 6, 7, and 8, 2012 DECISION: March 14, 2012 CHARGES: Sections 86(1) x3; 88(1) x3; 95(1) 2; 92(1) 2; 92(2) 1; 100(2) 6; 99(2) 6; of the Criminal Code COUNSEL: Richard Hartlen and Marian Fortune-Stone, for the Crown DEFENCE: Elizabeth Cooper, for Kyle Cater By the Court: Introduction [1] January 15, 2009 began eventfully for Kyle Cater. His stepmother, Torina Lewis, called him early in the morning with the news that there had been police raid on the home she shared with Kyle’s father. In series of calls that morning, she told Kyle what had happened. The police had made apparent what they were looking for: they were looking for guns. [2] Kyle Cater’s father, Paul Cater, and Torina Lewis lived at 80 Cavendish Road in Spryfield, neighbourhood in Halifax. Kyle did not live there. He lived with his mother, Barbara Cater, on Purcells Cove Road, also in Spryfield. The search warrant for 80 Cavendish Road was primarily based on intercepted telephone conversations from December 2008 that led the police to believe there were guns at the residence. [3] The search of 80 Cavendish Road occurred in the context of much wider police investigation, Operation Intrude. Operation Intrude was investigating suspected criminal activity involving drugs and guns. On November 18, 2008, police investigators had obtained Part VI Criminal Code authorization to intercept the private communications of named targets believed to be involved in the drug trade. One of the named targets was Kyle Cater. [4] Operation Intrude’s Part VI authorization was still up and running on January 15, 2009. Monitors were listening to calls to and from Kyle Cater’s cell phone as well as the land line where he was living. Calls between Torina Lewis and Kyle Cater on January 15 after the police began their search of 80 Cavendish led investigators to believe Kyle Cater knew about and had some control over the guns located at his father’s residence. [5] Paul Cater, Torina Lewis, and Kyle Cater were all charged on January 15 with charges relating to firearms and ammunition that were found by police at 80 Cavendish. Also as a result of the Part VI authorized intercepts, on April 29, 2009, Kyle Cater was charged with trafficking firearms. Intercepted private communications constitute the primary evidence offered against Kyle Cater on all the charges. [6] will note here that, without any disrespect intended, on occasion in these reasons refer to Kyle Cater as Kyle and Paul Cater as Paul so as to avoid any confusion. For symmetry will also be referring to Ms. Lewis by her first name. The Charges [7] The joint information against Kyle Cater, Paul Cater and Torina Lewis lists eleven charges. They are: the unlawful storage of a sawed off Cooey 84 shotgun, a Lakefield Mark II rifle, and an AA Arms Model AP 9 handgun, and ammunition, in a careless manner (contrary to Criminal Code section 86(1) x 3), unlawful possession of the sawed off Cooey 84 shotgun, the Lakefield Mark II rifle and the AA Arms Model AP 9 handgun (contrary to Criminal Code section 88(1) x 3), unlawful possession of a loaded prohibited weapon – the AA Arms Model AP 9 handgun, and unlawful possession of a loaded prohibited firearm – the sawed off Cooey 84 shotgun (contrary to Criminal Code section 95(1) x 2), unlawful possession of the sawed off Cooey and the AP 9 handgun, knowing that possession is unauthorized (contrary to Criminal Code section 92(1) x 2), and unlawful possession of two over capacity magazines, a prohibited device (contrary to Criminal Code section 92(2)). [8] Kyle Cater is also solely charged with twelve (12) firearms trafficking charges pursuant to sections 100(2) and 99(2) of the Criminal Code, for the between dates of November 18, 2008 and January 16, 2009. [9] On February 24 at the close of the Crown’s case against Kyle, I granted an amendment to Count #8 of the January 15, 2009 Information to allege, pursuant to section 95(1) of the Criminal Code, unlawful possession by Kyle Cater of an unloaded prohibited firearm - the AA Arms Model AP 9 handgun together with readily accessible ammunition that was capable of being discharged in the firearm. The Crown had provided notice of its intention to seek this amendment at the start of Kyle’s trial on February 13, prior to the calling of evidence. The Burden of Proof and Reasonable Doubt [10] As have noted many times during these proceedings, Kyle Cater is presumed to be innocent until the Crown proves he is guilty beyond reasonable doubt. The function of the reasonable doubt standard is not to weigh individual items of evidence. It is the whole of the evidence that must be assessed in the determination of whether the Crown has made out its case. (R. v. Morin, 1988 CanLII (SCC), [1988] S.C.J. No. 80) [11] The burden of proof rests on the prosecution throughout the case and never shifts to the accused. An assessment that an accused is probably guilty is insufficient. Reasonable doubt is based on reason and common sense and is logically connected to the evidence or lack thereof. (R. v. Lifchus, [1977] S.C.J. No. 77) Trial Management and Paul Cater’s and Torina Lewis’ Change of Plea [12] Five substantive case management conferences were held in this matter, primarily to deal with issues raised in relation to Kyle Cater. Trial dates were set, number of which were used for voir dires. Kyle Cater agreed that the firearms possession and his firearms trafficking charges could be heard together and the case proceeded on this basis. [13] On December 20, 2011, Paul Cater and Torina Lewis pleaded guilty to various charges relating to the guns seized at 80 Cavendish Road. These pleas were entered following my decision on the validity of the search of 80 Cavendish. (R. v. Cater, [2011] N.S.J. No. 691) Sentencing is scheduled for April 18, 2012. have heard no facts, evidence, or submissions relating to these pleas. This decision is in relation to the charges against Kyle Cater. [14] Ms. Cooper has asserted that the guilty pleas of Paul Cater are relevant to the issue of Kyle’s criminal liability on the firearms possession charges. do not agree. The Crown’s case against Kyle Cater rests on his having constructive and/or joint possession of the firearms at 80 Cavendish. Kyle Cater can still be guilty even if his father was also in possession. [15] The key evidence on the firearms possession charges are the intercepts. The intercepts are also of pivotal importance to the firearms trafficking charges. [16] conducted eight voir dires in advance of the evidentiary phase of the trial commencing on February 13, 2012. All but two of these voir dires were for Defence applications. The Crown made two applications for the summary dismissal of Defence motions. My decisions on the voir dires are reported as follows: R. v. Cater, 2011 NSPC 75 (CanLII), [2011] N.S.J. No. 561 (plea negotiation privilege); R. v. Cater, 2011 NSPC 80 (CanLII), [2011] N.S.J. No. 610 (delay); R. v. Cater, [2011] N.S.J. No. 624 (disclosure); R. v. Cater, [2011] N.S.J. No. 708 (Crown application for summary dismissal of Garofoli application/Defence application for leave to cross-examine Affiant); R. v. Cater, [2011] N.S.J. No. 626 (Garofoli application); R. v. Cater, [2011] N.S.J. No. 627 (Crown motion for summary dismissal of abuse of process and arbitrary detention applications); R. v. Cater, [2011] N.S.J. No. 691 (section challenge to the validity of the search warrant for 80 Cavendish Road); and R. v. Cater, 2012 NSPC (CanLII), [2012] N.S.J. No. 22 (section challenge to the search of Kyle Cater’s cell phone). [17] As result of certain of the decisions mentioned above, admitted into evidence the firearms seized from 80 Cavendish Road, intercepted private communications obtained pursuant to the Part VI authorization, and the contents of the cellular phone seized from Kyle Cater on his arrest. In the course of the trial also heard submissions and ruled on the admissibility of hearsay evidence contained in the intercepts and the text messages from the cell phone. (R. v. Cater,[2012] N.S.J. No. 111) admitted into evidence the communications of the Part VI authorized intercepts for the truth of their content. [18] Almost nothing was conceded by Defence for Kyle Cater. As consequence, these reasons will address the continuity and integrity of exhibits, including the intercepts, and voice identification. Operation Intrude [19] Operation Intrude, joint operation of the RCMP and Halifax Regional obtained Part VI authorization that targeted number of individuals believed to be associated including Kyle Cater, Jeremy LeBlanc, Shawn Shea and Aaron Marriott. The sixty-day authorization netted 64,000 intercepts. According to Det/Cst. Nick Pepler, the lead investigator for Operation Intrude, approximately 5000 of these intercepts captured conversations involving Kyle. [20] January 15, 2009 was take-down day for Operation Intrude. Although Kyle had not been on the arrest list for January 15, following the intercepted telephone calls with Torina Lewis, he was arrested for possession of the firearms found at 80 Cavendish. will have more to say about these, and other intercepted telephone conversations later in these reasons. The Firearms Seized at 80 Cavendish Road [21] Cpl. Mark Cameron was the Exhibit Officer for the search of 80 Cavendish Road. Police officers searching the residence brought to his attention number of items which he then seized. These items were: .22 calibre Mark II rifle, serial number 68355 with loaded magazine and catridge in the chamber; box of ammunition (50 rounds of .38 special ammunition); loose rounds; box of shotgun shells; 30-30 Winchester bullet; 20 gauge Cooey sawed off shotgun, serial number 82867, loaded with one shell; three 20 gauge shotgun shells; an unloaded AP Luger fully automatic, serial number 049948; fully loaded magazine and single shotgun shell. [22] The Mark II rifle was located, propped up, to the right of the headboard in the master bedroom on the third level of 80 Cavendish. The AP Luger was in the second (bottom) drawer of the night table next to where the rifle was found. The loaded magazine for the AP was in television stand behind set of ceramic hands which had two little roses decorating their wrists. Cpl. Cameron estimated the distance between the location of the AP and the magazine to be little more than six feet, close enough to be readily accessible. single 20 calibre shotgun shell was found sitting on top of the dresser in the bedroom. Three 20 gauge shotgun shells were found in the first (top) drawer of the night table which held the AP 9. The Cooey shotgun was seized from the kitchen, in Cpl. Cameron’s estimation, about eight feet from the main entrance into the home. The boxes of ammunition the .38 special rounds and the shot gun shells were found high up in kitchen cupboard, about 7.5 feet off the floor. The two loose rounds of .38 special ammunition were also found in this location as was the 30-30 Winchester bullet. In drawer in the kitchen table police found, and Cpl. Cameron seized, four 20 gauge shotgun shells. [23] The three guns and the ammunition were tendered into evidence as were Cpl. Cameron’s photographs of them (Exhibit 5) in their original locations at 80 Cavendish. [24] Cst. Andre Habib of the HRPS IDENT unit was dispatched to 80 Cavendish where he took possession of the exhibits collected by Cpl. Cameron. He returned to HRPS headquarters with the exhibits, photographed them and swabbed them for fingerprints and DNA. They were kept locked in his personal exhibit locker in the locked police lab until he turned them over to Cst. Christian Moreau in March 2009. Cst. Habib’s 39 photographs of the seized items were tendered into evidence as Exhibit 6. [25] The firearms seized from 80 Cavendish were forwarded to Martin Champion, firearms analyst with the RCMP. Mr. Champion was qualified without objection by the Defence as firearms analyst/technologist able to give opinion evidence as to the identification, classification and functionality of firearms and related devices, ammunition, or any part or component of such items. In the course of his testimony he examined Exhibit 14 (the Mark II Lakefield rifle, Exhibit 20 (the Cooey shotgun), Exhibit 23 (the AA Arms AP 9), Exhibit 24 (the Luger magazine and the seventeen Winchester brand mm Luger catridges), and Exhibit 15 (the six .22 calibre cartridges and related magazine.) He confirmed that these Exhibits were the items provided to him for analysis as to their mechanical condition and legal classification. [26] Mr. Champion adopted the contents of his report (Exhibit 31) and the firearms certificates of analysis he prepared. (Exhibit 8) Previously Cpl. Allan Rogers had testified that he served Kyle Cater with the firearms certificates (Exhibit 8) on July 8, 2009 at the door of Mr. Cater’s apartment. Cpl. Rogers’ Affidavit of Service is attached to, and forms part of, Exhibit [27] Mr. Champion testified as follows: The Mark II Lakefield rifle fired properly when tested. Mr. Champion used the magazine that had been seized with the rifle and one of the rounds from that magazine in testing the mechanical condition of the rifle. The rifle is non-restricted firearm. Mr. Champion certified in Exhibit 8, “Certificate of Analysis” for the Lakefield Mark II rifle that the rifle “is firearm within the meaning of Section of the Criminal Code of Canada, in that it is barreled weapon from which projectile can be discharged and that is capable of causing serious bodily injury or death to person.” The Cooey shotgun is in modified condition having had its stock and barrel cut. In this condition it is prohibited firearm. The Cooey fired properly with .20 calibre shotgun shell. Mr. Champion used shell from the RCMP Forensic Lab stock of ammunition to test the Cooey. Mr. Champion certified in Exhibit 8, “Certificate of Analysis” for the Cooey, model 84, 20 gauge single shot shotgun that the shotgun “is firearm within the meaning of Section of the Criminal Code of Canada, in that it is barreled weapon from which projectile can be discharged and that is capable of causing serious bodily injury or death to person, and furthermore, that said shotgun is prohibited weapon within the meaning of Section 84(1) of the Criminal Code of Canada, in that it is adapted by cutting and as so adapted is less than 660 mm in length.” The AP Luger fired properly when tested using the magazine and one of the catridges seized from 80 Cavendish. The AP 9’s disconnector had been cut off converting the gun from its manufactured semi-automatic mode to fully automatic weapon. When Mr. Champion tested the AP it fired in full automatic mode. In this condition it is prohibited firearm. Mr. Champion certified in Exhibit 8, “Certificate of Analysis” for the AA Arms, model AP 9, mm Luger calibre full-automatic pistol that it “is firearm within the meaning of Section of the Criminal Code of Canada, in that it is barreled weapon from which projectile can be discharged and that is capable of causing serious bodily injury or death to person, and furthermore, [it] is an automatic firearm and prohibited firearm within the meaning of Section 84(1) of the Criminal Code of Canada, in that it is firearm that is designed and manufactured with the capability of discharging projectiles in rapid succession during one pressure of the trigger.” Mr. Champion certified in Exhibit 8, “Certificate of Analysis” for the cartridge magazine that was found in the master bedroom at 80 Cavendish Road that it is “a prohibited device within the meaning of Section 84(1) of the Criminal Code of Canada and Section of Part of the Regulations Prescribing Certain Firearms and Other Weapons, Components and Parts of Weapons, Accessories, Cartridge Magazines, Ammunition and Projectiles and Prohibited or Restricted, in that it is capable of containing more than ten cartridges of the type for which it was originally designed and that it is designed for use in semi-automatic handgun.” Mr. Champion also examined Exhibit 21, shotgun shell seized at 80 Cavendish. He testified that all its components were present so that it was in fire-able condition. Mr. Champion was not provided with Exhibit 17, box of shotgun shells seized at 80 Cavendish. He examined them in the witness box and confirmed that the head stamps for these shells indicated they were .20 gauge shotgun shells. Mr. Champion testified that these shotgun shells were designed to be fired in the Cooey sawed-off shotgun. [28] Mr. Champion received the exhibits in the condition they were in when he re-examined them in court. He testified that when he had finished with the firearms and ammunition he taped up all the boxes and returned the exhibits to the police. He indicated that no one tampered with any of the exhibits. Canada Firearms Centre Evidence [29] Exhibit includes “Notice of Documents Section 28 Canada Evidence Act” and Det/Cst. Nick Pepler’s certification that on April 29, 2009 he personally served Kyle Cater with Affidavits of Firearms Checks. These documents included the Affidavit dated January 21, 2009 of Maarten Kramers, Chief Firearms Officer, Provincial Firearms Office for Nova Scotia in which he confirms that the Canadian Firearms Registry has been searched and Kyle Cater does not possess Firearms Acquisition Certificate, issued under the former Part III of the Criminal Code of Canada, or Possession Only License or Possession and Acquisition License issued under the Firearms Act, S.C. 1995, C-39, and furthermore, no application for firearms license of firearm registration in the name Kyle Cater has been found in the Canadian Firearms Information System. Affidavits sworn on January 27, 2009 by Denis Deveau, Police Line Operator with the Canada Firearms Centre indicate that Kyle Cater has not been issued valid registration certificate under the authority of the Firearms Act. Nor is there any record of valid registration certificate for the Lakefield Mark II rifle, serial number 68355 or the AA Arms AP9 millimeter handgun, serial number 049948 or the Cooey model 84 20 gauge shotgun, serial number 82867. [30] The testimony of Cpl. Cameron, Mr. Champion and Cst. Christian Moreau, and the documentary exhibits entered through, or referred to by them, left me with no doubt about the continuity and integrity of the exhibits being relied on by the Crown which were seized from 80 Cavendish Road. will further note that Ms. Cooper did not even cross-examine the lead exhibit officer for Operation Intrude, Cst. Moreau. Her cross-examination of Cpl. Cameron did not challenge his handling or transfer of the exhibits seized from 80 Cavendish. Although the Defence did not concede continuity, there was nothing in the evidence to support any suggestion of continuity problem. Continuity of the Seized Firearms, Their Identification and Classification [31] There is nothing to the continuity/integrity of the exhibits issue. Indeed have been unable to see why it was even made an issue at all. There is nothing to suggest that the guns and ammunition introduced as evidence in this trial are not the ones that were located in Paul Cater’s and Torina Lewis’ home. am also fully satisfied that all three guns the Mark II Lakefield rifle, the Cooey shotgun, and the AP nine millimeter handgun are “firearms” within the definition under section of the Criminal Code, that is to say they are each “a barreled weapon from which any shot, bullet or other projectile can be discharged and that is capable of causing serious bodily injury or death to person…” There is no evidence to refute the opinion of Martin Champion in this regard. [32] There is also no evidence that refutes Mr. Champion’s opinion as to the classification of the 80 Cavendish firearms and ammunition in accordance with section 84(1) of the Criminal Code. accept that the Mark II Lakefield rifle is non-restricted firearm, the sawed-off Cooey shotgun is prohibited firearm, the fully automatic AP is prohibited firearm, the cartridge magazine found in the master bedroom of 80 Cavendish is prohibited device within the meaning of section 84(1) of the Criminal Code and section of Part of the Regulations. [33] also note that in Martin Champion’s report (Exhibit 31), he indicated that the cartridge magazine to the Mark II Lakefield rifle “has capacity of up to thirty (30) 7.62 39 mm Russian calibre cartridges.” (Exhibit 31, page 2, #9 under Results) As Mr. Champion concluded in his report, this makes that rifle magazine prohibited device within the meaning of section 84(1) of the Criminal Code and section of Part of the Regulations. (Exhibit 31, page 3, #9 under Conclusions) The Relevance of the Identification and Classification Evidence and the Canada Firearms Centre Evidence to the Charges Relating to the 80 Cavendish Guns [34] am wholly satisfied that the guns seized from 80 Cavendish are firearms within the meaning of the Criminal Code and that they and the two magazines have been correctly identified and classified in the charges against Kyle Cater, Paul Cater and Torina Lewis. am also wholly satisfied that Kyle Cater did not have, at any time material to the charges, Firearms Acquisition Certificate or any other kind of license for possessing firearms nor did he have valid registration certificate for any of the 80 Cavendish firearms or any firearms. [35] Therefore, the essential issue on the charges against Kyle Cater in relation to the 80 Cavendish Road firearms and ammunition is whether Kyle had constructive and/or joint possession of the loaded Mark II Lakefield rifle, the loaded Cooey sawed-off shotgun, the unloaded fully automatic AP 9 nine millimeter pistol, and the two over-capacity magazines. In due course will address the law and evidence relating to the possession issue. [36] Before embark upon discussion of the rest of the Crown’s evidence, want to note that the possession issue does not decide everything on the charges relating to the 80 Cavendish firearms. Kyle Cater is also charged with careless storage of the 80 Cavendish firearms and ammunition. He cannot of course be found guilty of careless storage if he is not guilty of possession. But even if he is guilty of possession that does not determine that he is therefore guilty of careless storage. These charges have to be decided on their own merits. [37] will now move on to discuss Kyle Cater’s cell phone, the technical evidence relating to the interceptions, and voice identification. Kyle Cater’s Cell Phone [38] One of the phones monitored pursuant to the Part VI authorization was cell phone used by Kyle Cater. Barbara Chase confirmed that she was the subscriber to the phone which had the number 229-4400 but that it was Kyle who used it. She was shown Exhibit on cross-examination and agreed that it looked like the phone her son had used. [39] Exhibit is the phone seized from Kyle on his arrest. Det/Cst. Donald Buell testified that on January 15, 2009 he oversaw the processing of prisoners who had been arrested in the Operation Intrude take-down. Personal effects were seized from Kyle when he was arrested. Included in these personal effects was cell phone. Det/Cst. Buell confirmed that Exhibit is that cell phone, in the exact same condition as when he seized it from Kyle’s personal effects and removed the battery. The battery removal was in accordance with instructions the investigators had received from the RCMP Technological Crime Unit on how to handle seized cell phones. Det/Cst. Buell did not examine or use the phone. After removing the battery, he stored the phone and the battery in an exhibit bag in drug locker. He turned the phone over to Cst. Christian Moreau on January 22. Det/Cst. Buell confirmed that no one had, in the meantime, accessed or manipulated any of the seized phones, including the one taken from Kyle Cater. [40] Cst. Moreau forwarded the seized phone to Cst. (now Cpl.) Aaron Gallagher of the RCMP Technological Crime Unit in Fredericton. Exhibit 33, the exhibit control document for the Samsung cell phone confirms the continuity of the cell phone which has been maintained in police custody since being returned by Cpl. Gallagher, until it was provided by Cpl. Moreau to the Crown on December 21, 2011 for this trial. Since February 13, 2012, the phone has been in the custody of the court as an exhibit in the trial. The Admissibility of the Cell Phone [41] In R. v. Cater, 2012 NSPC (CanLII), [2012] N.S.J. No. 22, determined that the contents of Mr. Cater’s cell phone were admissible as evidence in this trial. [42] Before move on to discuss what was found on the phone, will address an issue that, in Ms. Cooper’s view, has not been dispensed with. She continues to insist that Kyle’s Charter application in relation to the cell phone does not associate him with the phone, and entitles him at trial to demand that the Crown prove the phone is his. cannot agree. addressed this issue in R. v. Cater, 2012 NSPC (CanLII), [2012] N.S.J. No. 22 at paragraphs 7. As said there, in part: 5… Mr. Cater has chosen to advance challenge to the search of cell phone seized from him at the time of his arrest. To advance such challenge he must establish that he has standing to do so. He has standing only if he can claim reasonable expectation of privacy in the phone. He cannot subsequently claim to have no interest in the phone. Engaging section rights in Charter voir dire and then at trial claiming no connection to the phone would be, to put it mildly, disingenuous. [43] I am unable to accept that Kyle Cater can assert a privacy interest in order to obtain the protection of section 8 of the Charter and then, when that application goes badly and the evidence is admitted, turn around and claim to be a stranger to the item in which the privacy interest resided. [44] In any event have not resorted to Kyle’s assertion of reasonable expectation of privacy in the Samsung cell phone in determining that the phone is his. am satisfied the evidence led by the Crown has established that the phone with the number 229-4400 was Kyle Cater’s cell phone. His mother testified that she subscribed to cell phone for his use that had this number. The phone contains contact information that Ms. Chase, the subscriber (under the name she was using at the time Barbara Cater), did not enter. It has photographs on it of Kyle’s girlfriend, Katie Mills, and himself. Det/Cst. Pepler gave evidence that he found no evidence in the intercepts that anyone else was using this phone. find there is ample evidence of the phone being Kyle Cater’s, independent of the fact that he asserted reasonable expectation of privacy in the phone when he advanced his section Charter challenge to its seizure. The Cell Phone The Forensic Analysis [45] Cpl. Aaron Gallagher, computer forensic analyst, who is now the supervisor of the RCMP Integrated Technological Crime Unit, was qualified by me to give opinion evidence in “computer forensic analysis and the recovery and interpretation of electronic data and data stored electronically.” His qualifications to provide expert opinion evidence were not contested by Defence. [46] Cpl. Gallagher identified contact information and images (photographs) and used ZRT (Zippy Reporting Tool), camera, to capture images of the phone’s display screen and its record of outgoing and incoming calls, missed calls, and text messages. He accessed the metadata of the phone which included the date when images were created by the phone, i.e. dates when photographs were taken. His “Mobile Device Analysis Report” was completed on March 31, 2009. In his report, Cpl. Gallagher described the procedures and software he used on the Samsung: “The electronic data stored on [the phone] was extracted using combination of the CellBrite and XRY forensic tools as well as the ZRT capture device.” [47] Cpl. Gallagher confirmed in his testimony that he had not manipulated or changed any of the information or images extracted from the cell phone nor had any other law enforcement personnel done so. accept his evidence, which was not challenged, that his forensic analysis was done in accordance with strictly observed protocols to protect the integrity of the data stored in the phone. The Contents of the Cell Phone Contacts [48] Cpl. Gallagher’s forensic analysis of Kyle Cater’s Samsung phone enabled him to access the 156 contacts listed in the phone, some of which will make specific reference to when discuss the intercepts. The Contents of the Cell Phone Photographs [49] The phone also contained 28 still images (photographs), including images of young woman Det/Cst. Pepler and Barbara Chase identified as Katie Mills, Mr. Cater’s girlfriend during the relevant period. Also obtained from the cell phone were images of brown pitbull, stacks of money, and three photographs that depict handguns. There is single image of young man lying on sofa with the brown pitbull. When shown the photograph blown up, Mr. Cater’s mother, Barbara Chase, testified that it was photograph of Kyle with Paul’s and Torina’s pitbull, Kyla. [50] Cpl. Gallagher was able to determine from the metadata in the Samsung that the images of the handguns were created on October and October 13, 2008. The Contents of the Cell Phone Text Messages [51] Also retrieved from the Samsung by Cpl. Gallagher were screen shots of outgoing (20/20) and incoming (20/20) calls and text messages. The Samsung’s capacity was 20 calls in each category (outgoing and incoming) and 20 texts. [52] The 20 outgoing calls spanned the period of January 14, 2009 at 2:04 p.m. to January 15, 2009 at 8:32 a.m. The incoming calls were received between January 14, 2009 at 4:25 p.m. and January 15, 2009 at 8:21 a.m. Twenty missed calls were also recorded, between January 13, 2009 at 8:28 p.m. and January 15, 2009 at 9:08 a.m. In addition, the forensic analysis retrieved 11 text messages that were received and 10 that were sent. Many of the calls and texts went to or came from the listed contacts that Mr. Cater had stored in his phone. will refer to certain texts in due course. The Intercepts Technical Evidence [53] Evidence was led by the Crown about the monitoring and oversight processes for the interception of private communications in Operation Intrude pursuant to the Part VI authorization. have previously concluded that the authorization was valid. (R. v. Cater, [2011] N.S.J. No. 626) The Crown has shown that Kyle was either personally served or served through Ms. Cooper copies of the digital audio recordings of the intercepts and the corresponding transcripts as well as Session Lists, and Statements of Time, Date and Place pursuant to section 189(5) of the Criminal Code. It has also been established that there is no evidence whatsoever of any tampering with or manipulation of either the audio recordings of the intercepted communications, the transcripts prepared from those audio recordings or the text messages that were reviewed and recorded in transcription form. [54] Holly Good, an experienced intercept monitor, described this as “quite an easy file” with an “easy dialect” and “very easy transcriptions.” She confirmed that Exhibit 13 contains the original transcripts that she prepared of the intercepts. She further confirmed that Exhibits 1, 2, and are copies of the transcripts in Exhibit 13 and that everything in Exhibits 1, 2, and 4, are found in Exhibit 13. Ms. Good also testified that the transcripts she prepared and verified are, to the best of her ability, accurate representations of the intercepts. [55] On cross-examination, Ms. Good confirmed that the police investigators could not alter document that she was working on, that there is no way to change the audio recording of the intercepts and that the entire call is transcribed, never just portion. She testified that there is no way for anyone to access the software program used for the intercept and delete portion of call. [56] Glennis Sullivan, Ms. Good’s supervisor and the manager of all the intercept monitors, testified that the intercepts entered into evidence were obtained pursuant to Part VI authorization (Exhibit 29) with which she was familiar, as was Ms. Good. The recording equipment was functioning as was the software program used by the monitors. Ms. Sullivan burned the CD’s that were requested for this trial and created the CD’s that are included in Exhibits 1, 2, and 4. Exhibit is compilation of intercept sessions, 57 in total. She had no trouble preparing the burned CD’s. She maintained continuity of the CD’s by locking them in her exhibit locker once they were created and then bringing them to court. [57] Ms. Sullivan also burned CD’s as requested for voice identification purposes. [58] Ms. Sullivan testified that there is no possible way to tamper with the audio recordings of the intercepts. She also confirmed that it is not possible to burn only portion of call to CD: the entire call is burned when CD is created. [59] Notwithstanding evidence led by Ms. Cooper from Kyle Cater’s mother, Barbara Chase, that she reviewed what was only partial transcript of an intercept of call she had had with friend on January 15, 2009, am satisfied that the intercepts introduced into evidence before me, which were played in evidence, are unexpurgated and have not been modified, changed, edited or abbreviated in any way. want to note that Ms. Chase received the partial transcript from Kyle’s first lawyer, Geoff Newton. She confirmed in her testimony that prior to this trial she was given the complete transcript of this particular call by Ms. Cooper. There is nothing to indicate that the complete transcript of the Barbara Cater call was not available when Geoff Newton was acting for Kyle. Indeed, Gloria Sullivan’s testimony, which accept, satisfies me it would have been. Why Barbara Cater was originally provided with only part of the transcript for the call is unexplained but it does not remotely suggest to me that there has been any tampering with any of the interceptions or their transcripts. [60] will further note that the continuity and integrity of intercept recordings and the related transcripts goes not to the admissibility of the intercepts but to their weight. (R. v. Meer, [2010] A.J. No. 1123 (Q.B.), paragraph 16) No evidence has been produced by Ms. Cooper, either directly or through cross-examination, that causes me to conclude the intercepts should be accorded diminished weight. am satisfied to accept them as accurate recordings of the conversations that were intercepted. [61] Ms. Cooper raised section 31.2 of the Canada Evidence Act which provides for proof of the “integrity of the electronics document system” as the best evidence rule in respect of an electronic document. find this to have no application whatsoever to the recordings of Part VI intercepted private communications. have never seen any case authority for such proposition and Ms. Cooper provided me with none. Furthermore, section 31.3 of the Canada Evidence Act sets out presumption of integrity on the basis of evidence such as that elicited in this case from Ms. Sullivan and Ms. Good. Even as make note of that, reiterate my firm view that these provisions of the Canada Evidence Act have nothing to do with Part VI intercepts. Voice Identification [62] The Crown tendered 60 Part VI intercepts in total for voice identification purposes and 911 call from December 26, 2008. 57 intercepts are found in Exhibit 4, and have been tendered also as evidence of Mr. Cater’s guilt. Only two of these intercepts do not involve speaker who has been identified as Kyle Cater: Intercept (session #869) is conversation that involved third parties and Intercept (session #2589) is text. This means 55 of the substantive intercepts (Exhibit 4) involve speaker that has been identified as Kyle Cater. In addition the Crown tendered three intercepts for voice identification purposes only. Therefore, 58 intercepts played at this trial are said to contain Kyle Cater’s voice. [63] Det/Cst. Pepler has had considerable exposure to Kyle Cater’s voice, voice he identified on intercepts obtained by the investigation. He testified that he personally listened to the 64,000 intercepts captured pursuant to the Part VI authorization. Approximately 5000 intercepts involved Kyle Cater. He has listened to each of the 57 intercepts selected for the Crown’s case approximately dozen times. In number of these calls, Kyle either identifies himself or is identified during the call. Det/Cst. Pepler has also listened to another 11 intercepts “at least” where speakers identify Kyle Cater or he self-identifies. Det/Cst. Pepler referred to the 911 call placed by Kyle Cater and to video/audio interrogation of Kyle by police. (That police interview was not introduced into evidence by the Crown and only referenced by Det/Cst. Pepler for the purpose of describing what sources he had used for developing his familiarity with Kyle Cater’s voice.) [64] Det/Cst. Pepler had also spoken to Kyle in person. He spent an hour with Kyle following his arrest on the weapons trafficking charges on April 29, 2009. He spoke to Kyle during traffic stop in 2008. Det/Cst. Pepler first met Kyle and his family when Kyle was eleven years old. [65] Det/Cst. Pepler testified that, in addition to becoming familiar with Kyle Cater’s voice, features of the actual intercepts satisfied him that he was listening to him speaking. These features included commonly repeated phrases and context. In some instances, Det/Cst. Pepler heard discussion about an event that Kyle Cater had been involved in with police, such as the December 2008 traffic stop. Furthermore, Kyle used cell phone to make and receive calls that no one else used during the course of the operation. It was cell phone registered to Mr. Cater’s mother, Barbara Cater. [66] Det/Cst. Pepler testified to being sufficiently familiar with the voices of other individuals captured on the intercepts to confidently identify the speakers. Individuals such as Shawn Shea and Jeremy LeBlanc were targets of Operation Intrude and featured in thousands of calls. They would, on occasion, identify themselves or be identified in the calls. Det/Cst. Pepler also got to know some of the idiomatic turns of phrase and expressions employed by various speakers. In the cases of Mr. Shea and Mr. LeBlanc, Det/Cst. Pepler also had had direct personal experience, through arrests, service of documents and appearances in court. In Jeremy LeBlanc’s case, Det/Cst. Pepler listened to six hour police interview. [67] Other voices Det/Cst. Pepler became familiar with were those of Paul Cater, L.S., M.C. and J.M. In Paul Cater’s case, Det/Cst. Pepler had spoken with him at court several times. He listened to approximately 200 intercepts involving Paul Cater. The phone numbers used by Paul Cater were registered in Kyle Cater’s cell phone under “Dad”. Det/Cst. Pepler testified to knowing J.M. from Spryfield and having spoken to him several times at court. He describe J.M. as “regular, everyday caller” to Kyle Cater. Phone numbers linked to these individuals helped to confirm who was using the phones. [68] Clues as to who was speaking were also available to Det/Cst. Pepler in the calls themselves where for example, M.C. can be identified by his referring to himself as Kyle Cater’s brother. Det/Cst. Pepler noted that M.C. is Kyle’s only brother. Police knowledge about nicknames and relationships also informed Det/Cst. Pepler’s voice identification. [69] Simply put, as Det/Cst. Pepler explained it, describing his ability to identify who was speaking on the intercepts: “You get to know these people.” [70] Det/Cst. Johnny Mansvelt also gave evidence about voice identification.He assisted in Operation Intrude and listened to some of the intercepted calls. In all he listened to over thousand calls. He testified that he listened to all of the calls in Exhibit (56 calls as noted above) at minimum of 10 times each. [71] Like Det/Cst. Pepler, Det/Cst. Mansvelt used familiarity, self-identification and context to identify voices in the intercepts. He testified that voices he was familiar with from personal interaction were Paul Cater’s, Torina Lewis’, Kyle Cater’s, M.C.’s, and Aaron Marriott’s. Self-identification, extensive exposure through the intercepts and contextualized references cemented Det/Cst. Mansvelt’s confidence in the identity of the speakers. [72] Det/Cst. Mansvelt’s voice identifications of Kyle Cater, Paul Cater and Torina Lewis were the same in every instance as Det/Cst. Pepler’s. He was also able to identify Aaron Marriott’s voice as Voice in Intercept (session #869), call that occurred on November 30, 2008. [73] find that the voices throughout the calls are consistent. By that mean the voices identified by Det/Cst’s Pepler and Mansvelt show the same characteristics throughout the calls and are recognizable as the same voice throughout. Given Det/Cst. Pepler’s experience with Kyle Cater in person and his exposure to his voice where he either self-identifies (as occurs on some of the intercepts and the 911 call) or is identified (as he is on some of the intercepts and would have been in the police interview Det/Cst. Pepler listened to), am satisfied that he would know Kyle’s voice both by its intonation and the content of its speech and has correctly identified his voice on the intercepts. also accept that Cst. Pepler's experience with Shawn Shea, Jeremy LeBlanc and Paul Cater equipped him to reliably identify those voices. am further satisfied that there is ample self-identification in calls in which L.S. is speaking and two involving M.C. for me to accept Det/Cst. Pepler’s opinion identifying their voices in these calls. He has also identified to my satisfaction on similar basis the voice of D.S. [74] Det/Cst. Mansvelt is similarly well suited to identify the voices of Paul Cater, Torina Lewis, Kyle Cater, and Aaron Marriott. [75] In the 55 substantive intercepts, that is intercepts the Crown submits contain proof beyond reasonable doubt of the offences with which Kyle is charged, voice accept to be Kyle Cater’s voice can be heard speaking. This is the same voice that makes the 911 call on December 26, 2008 identifying himself as Kyle Cater. found listening to the intercepts was an experience that mirrored that of Det/Cst. Pepler: you get to know these people. After listening to 58 intercepts (55 substantive intercepts and the three intercepts tendered for voice identification purposes only) am satisfied that have got to know Kyle Cater’s voice and recognize it as the voice Det/Cst. Pepler identified as belonging to him. acquired the same sense of familiarity with respect to the voices of Paul Cater and Torina Lewis. [76] Returning to Kyle Cater’s voice, find that the voice heard on the 58 intercepts is the identical voice heard on 911 call, also intercepted by police during the investigation. dispatcher answers call. The caller identifies himself as Kyle Cater, spelling his last name and giving his address at 116A Purcells Cove Road. The evidence (that being, the evidence of Barbara Cater Chase) has confirmed that was Kyle’s address at the time. [77] Barbara Chase gave what will call “icing on the cake” confirmatory evidence on cross-examination that the 911 caller is Kyle Cater. Not only did she identify his voice when the Crown started to play the intercept, she indicated she was standing right beside him when he made the call. [78] In identifying Kyle’s and other voices on the intercepts also find that identity can be inferred from the context of the discussion, what happened immediately prior to particular call, and the interconnection of subject matter and personnel amongst the calls. Furthermore, there is ample self-identification in the intercepts. [79] For example, in Intercept 3, Kyle is referred to by his caller as “Cater.” In Intercept 17, he is referred to as “Kyle”. In Intercept 24, Kyle is called “Peanut” which Barbara Chase confirmed in her testimony was Kyle’s nickname. In Intercept 26, Kyle gets called “Ky”, another nickname according to Ms. Chase. And Kyle is identified by name in the January 15, 2009 calls that followed the police raid on 80 Cavendish Road. But the context alone is enough to identify the callers on the January 15 calls: there is no question that they are Torina Lewis, fresh from being arrested and detained, and Kyle Cater, learning the news of what had happened early that morning when the police descended on 80 Cavendish to execute search warrant. [80] In one of the three voice identification only calls, call on January 8, 2009, Kyle identifies himself as “Cater.” [81] In other calls, Kyle’s voice is identifiable not only by its recognizable features expressions and intonation but by the context. The January 15 calls are an example of this as are the calls (Intercepts 48, 49, 50 and 52) where Kyle talks first to his girlfriend Katie Mills about her being pulled over on December 28, 2008 by the police and then to others about the traffic stop. In the calls made by Kyle later on December 28 he references the traffic stop with some hilarity in view of the police narrowly missing him. [82] Det/Cst. Mansvelt testified about the December 28 traffic stop and the events leading up to it. He was involved in the surveillance that day and the Quick Response Team take down. will have more to say about these events later in these reasons. The point of mentioning them now is simply because what Det/Cst. Mansvelt described is incontrovertible evidence of Kyle Cater’s identity on the intercepts for December 28. [83] For the purpose of the firearms possession charges, the other key speakers on the intercepts Paul Cater and Torina Lewis are also readily identifiable by self-identification, being named, and context. Both Paul Cater and Torina Lewis have distinctive voices that become familiar to the ear through listening to the intercepts. They are also identified in various calls, for example on December 25 when Aaron Marriott calls from jail and speaks to both of them after asking for them by name. Torina Lewis identifies herself in the January 15 calls with Kyle. [84] Kyle Cater is tied into the intercepts as well by the phone numbers that are used. He consistently receives and makes calls on cell phone with the number 229-4400. His mother, Barbara Chase confirmed that she subscribed to this phone for Kyle Cater’s use. She did not program the phone with any of the contact numbers found in it. also accept Det/Cst. Pepler’s evidence that he did not find any indication in all the intercepts he listened to of anyone else using the phone with this number. And many of the numbers that 229-4400 called to or was called from were numbers that Kyle Cater had listed as contacts in his cell phone (Exhibit 10). This includes: his father, Paul Cater (“Dad”), D.M. (“D”), R. S. (“R”), I. E. (“I”), and Katie Mills (“My Baby”). [85] am wholly satisfied with the accuracy of Det/Cst’s Pepler’s and Mansvelt’s identification of the voices on the intercepts. Furthermore find there is overwhelming evidence in the intercepts themselves to identify the relevant speakers. Of Barbara Chase’s evidence that she relies on caller ID and stock phrases used by her sons to identify their voices, will simply say that this evidence changes nothing in my assessment of the voice identification on the intercepts. In fact, Ms. Chase remarked on Kyle Cater’s tendency to open his calls to her with, “Yeah, what’s going on?” found number of instances in the intercepts where the voice identified as Kyle Cater’s opened conversations with the same or very similar inquiry such as “Yeah, what are you doin’?” or “What’s up?” [86] am left with no doubt as to who was speaking on these intercepted calls. After listening to the intercepts, can identify the voices of Kyle Cater, Paul Cater, and Torina Lewis which find to be readily recognizable. accept the opinions of Det/Csts. Pepler and Mansvelt on the identity of all the voices on the intercepts, although have to say that self-identification, identification by others, and context permitted me to draw my own firm conclusions on who was speaking, particularly in the cases of Kyle Cater, Paul Cater, Torina Lewis, Aaron Marriott, and Shawn Shea, such that have not simply relied on the police officers’ opinions. As for other voices, such as D. “D.” S., L.S, I.E., J.M., and others, accept Det/Csts. Pepler’s and Mansvelt’s opinions but find that proof of the identity of these voices is not essential to the Crown’s case. [87] My review of the evidence to this point has brought me to the critical part of the case: what was being discussed in the intercepts. will now embark upon detailed examination of the intercepted conversations and the inferences have drawn from them. The Intercepted Calls: An Introduction [88] In the period of November 18, 2008 to January 15, 2009, as Ms. Cooper has repeatedly told me, Kyle Cater was “a boy in school.” He was eighteen years old which explains the use of “boy” to describe him. According to his mother, he was an excellent student. That is only partial picture. Over these same months, Kyle Cater was also having guarded telephone conversations using coded language. It is these conversations that lie at the heart of the Crown’s case. They are the Crown’s case. [89] will repeat what indicated earlier in these reasons: the substantive intercepts, the intercepts tendered as proof of Kyle Cater’s guilt, total 57 and are contained in Exhibit 4. Mr. Cater can be heard speaking on 55 of these intercepts. The other two intercepts are call in which he is not involved as speaker and text message. [90] The conversations eddy around Kyle with inquiries about and requests associated to items that are described, routinely but not always, using coded language. The fact that coded language is common feature of the intercepts is not in dispute in this case. The Crown says the coded language refers to firearms and ammunition: Ms. Cooper argues that it is impossible to interpret what the coded references mean and that other explanations are equally plausible. She suggests the speakers on the intercepts may have been talking about jewelry or clothing or even drugs, but it is not reasonable to infer that they are talking about guns. [91] There are several points to be made about the interpretation of the intercepts in this case. They have to be examined in contextualized way. Not every conversation is coded and in some cases, very specific or technical references are made to the items under discussion. And, finally, the Crown called expert evidence to assist my understanding of what the conversations are about. will now discuss that expert evidence. The Intercepted Calls: Qualifications of Crown Expert Michael Press [92] The expert called by the Crown was Special Firearms Officer Michael Press. After qualifications voir dire, qualified Mr. Press to give opinion evidence in firearm identification, classification, test firing, firearms and ammunition trafficking, illegal movement of firearms including crime guns sources, firearm concealment, street and coded language relating to firearms including illegal street prices of firearms and ammunition. The Defence conceded his qualifications in all categories proposed by the Crown except street and coded language relating to firearms and the illegal street prices of firearms and ammunition. Following submissions on the issue, qualified Mr. Press as have indicated. [93] As will discuss in more detail shortly, Mr. Press was asked by the Crown to indicate what in his opinion was coded, guarded or slang language in the intercepts tendered in this trial. In offering his opinion on certain intercepts, Mr. Press referenced the context provided by listening to cluster of intercepts and following the thread of what was apparently being discussed. He indicated in interpreting the intercepts who he had been given to understand were the speakers. As will be evident from these reasons, have not relied on Mr. Press’ evidence in this regard for any voice identification. The fact is that the voices Mr. Press believed he was listening to on certain intercepts, for example, Kyle Cater’s, have been found by me to be those voices. Voice identification is therefore not an issue in my assessment of the weight to be accorded to Mr. Press’ opinions. [94] can say that have accorded substantial weight to Mr. Press’ opinions, including on the possible meanings to be given the coded language on the intercepts. heard extensive evidence about Mr. Press’ experience and training. His 32 page curriculum vitae indicates that he has been qualified on numerous occasions before the courts of Ontario as an expert in the areas proposed by the Crown in this case. In seeking to have Mr. Press qualified, the Crown very thoroughly explored his expertise and how he has developed and continues to develop it. In endeavouring to acquire and maintain expertise in coded and street language relating to firearms and illegal firearms trafficking, Mr. Press has listened extensively to intercepts, accesses source debriefing information, and networks with broad range of law enforcement personnel involved in firearms interdiction. [95] Mr. Press’ significant experience and training satisfied me that he possesses the "special knowledge and experience going beyond that of the trier of fact." (R. v. Marquard, 1993 CanLII 37 (SCC), [1993] S.C.R. 223 at paragraph 35) found that his expert opinion evidence was admissible under the Mohan requirements. (R. v. Mohan, 1994 CanLII 80 (SCC), [1994] S.C.R. 9) concluded that Mr. Press’ evidence was necessary to my understanding of the types and classification of firearms and the coded language, illegal street trade and pricing relating to them, all of which are areas outside of my knowledge and experience. Having said that, logic, common sense and context assisted me in my interpretation of the intercepts and this is all that was necessary to understand some of the conversations. Michael Press’ Opinion Evidence [96] Michael Press listened to all 56 intercepts before me (Exhibit 4), viewed the text message in Exhibit and the photographs of guns obtained from Kyle Cater’s cell phone. He was also shown the firearms seized from 80 Cavendish Road. Besides observing the physical condition of the seized firearms, their manufacturers, make and calibre or gauge, Mr. Press indicated that the AP 9, manufactured by AA Arms is very similar in appearance and function to Tec 9, manufactured by Intratec. The AP and Tec barrels have similarly menacing and distinctive look, very similar handgrips, and can function with high capacity magazines. Although manufactured to be semi-automatic, the AP and the Tec can be modified to be fully automatic. The AP has street value according to Mr. Press of $4500 $5500. Full automatic machine pistols are designed to kill people. [97] The other guns found at 80 Cavendish are significantly less valuable. sawed off Cooey shotgun will fetch $400 $900 and the Mark II Lakefield rifle no more than couple of hundred dollars. Mr. Press contrasted the rifle to the AP 9: “A single shot very small calibre compared to fully automatic machine gun with high capacity magazine.” He went on to say that if person is in “a fire fight” they will want “more shooting ability.” [98] Mr. Press’ expertise includes being able to describe the terminology commonly used to describe and discuss illegal firearms and ammunition, including where the speakers want to obscure what they are talking about. When asked if he had identified in the intercepts any language he regarded as relating to firearms, he noted the following usages: “strap” is term for firearm; “forty cal” is terminology for 40 calibre firearm; “Thing” and “things” are common terms for firearm: the reference to “thang, thang” in Intercept (Session #253) may be an adaptation of “thing”; “3-0-8” could be terminology for .308 calibre firearm; “Full” in context can refer to ammunition; “Clip” is slang word for magazine; “Naked” can be used to indicate the person is unarmed; “Bop bop” can be used to describe the discharging of firearm. Slang can be developed from the perceived sounds made when firearm is discharged; “shottie” is term for shotgun; “10 after 4” may be terminology referring to .410 gauge shotgun. Time references and the mismatching of numbers are used as way to describe calibre; “Locking up” is terminology that can describe gun malfunctioning. The slide mechanism can get stuck on semi-automatic firearm and even break-action shotgun can “lock up”; “9” is term for mm handgun; “Derringer” is technical term for firearm. It may refer to particular model but, it was Mr. Press’ evidence that “in many ways, it’s description.” derringer is small firearm, usually with two short barrels. “two shot”, it is “pocket gun” that can be easily concealed. derringer will fetch about $1300 on the street; “Girl”, “girls”, “bitch” and “she” can be coded terms for firearms. Mr. Press testified that “many times” he has heard “girls” used in reference to firearms. He noted that context is an important factor in the analysis of what the terms are being used in reference to; “Ninja” may be term that refers to mm firearm; “Cannon” is coded term for firearm; “7-45” may be reference to .45 calibre firearm which is usually going to be semi-automatic hand gun; “Twenty-five” may refer to price, subject to context; “Fresh” is term used to describe new firearm, one that hasn’t been used; “Grime” is term used to indicate crime; References to something not being “too loud” and “not the black one” may be terms used to identify smaller calibre firearm (Intercept 24, session #1327 “don’t want anything too loud”) and the finish of the firearm, which may be “black” or otherwise stainless steel or nickel-plated (Intercept 28, session #1826); “Smith and Wesson” is technical term for an actual make of firearm and could indicate handgun or rifle. On cross-examination, Mr. Press indicated that it is easy to buy Smith and Wesson gun in Canada “at gun store”; “John Wayne” may refer to firearm, using the association of John Wayne who starred in movies where variety of firearms were used; “heater” is slang term used for firearm; “Tec” is term that references the design of firearm, the most common being Tec 9; [99] Mr. Press noted that there are intercepts that refer to Tec and said of the speakers: “They either thought it was Tec or they called it that.” [100] am now going to discuss the intercepts and the inferences have drawn from them. In doing so have left out many of the variants of “fuck” that pepper the conversations. They have generally lent nothing to my understanding of the conversations. Where the use of “fuck” or “fuckin” is relevant to include, have done so. The Intercepts Reasonable Inferences of Firearms Talk [101] I have concluded that the only reasonable inference to be drawn from the intercepts is that the speakers are talking about guns. This is apparent from the first intercept in the collection introduced into evidence, the telephone conversation on November 19, 2008 between Kyle and his brother, M. (Intercept 1, session #5) Kyle makes reference to “a forty cal” that he is trying to get. Mr. Press testified that this is how person familiar with firearms would refer to forty calibre firearm. M.C. urges his brother that if the person who has the firearm is saying “he’s gonna sell it, just go take it from him, cuz.” M.C. also seems to know someone who has “a forty” and tells his brother if he can get his hands on it he should take it. [102] There is simply no other reasonable inference to be drawn from Intercept #1 than Kyle wants to get his hands on .40 calibre firearm. [103] The following day, November 20, (Intercept 2, session #253) Kyle is talking to Shawn Shea about having “got new thang thang” which interpret to mean he has “a new thing.” It was suggested, despite Mr. Press’ testimony about “thing” often being used to describe firearm, that Kyle could be talking about anything. This suggestion could only be made without consideration of context in this call specifically and the other intercepts will go on to discuss. Kyle tells Shea the thing is “big” which elicits Shea’s approval, “Nice one.” According to Kyle it is also “bad though” and he is eager to show it to him: “I really wanna show you too cuz.” find the “big, bad thing” that Kyle was so enthusiastic about showing Shawn Shea had to have been gun. [104] On November 21, (Intercept 3, session #119) Kyle gets call from friend whom Det/Cst. Pepler believes to have been S.G. As have said, it doesn’t matter who the call was from. Kyle tells G. he can meet him “wherever” and talk to him “about that” but he “can’t really do it over this” presumably meaning the phone. He refers to the “heat” and “all those police out.” G. tells him he’s “gotta do Christmas shoppin” and is “just tryin’ to see if buddy can get clip for it…” Kyle reassures him about this, telling G. he doesn’t “really need to worry about that” because he can “get those myself…I got people that live out Edmonton and they send them down like it’s nothing, cuz.” Money is mentioned by Kyle, “It’s only couple of dollars though, right?” He goes on to talk about people who owe him money, “I got some people that owe me money that won’t even say ‘what’s up’ to me now…” [105] G. and Kyle make plans to keep in touch. G. expects to hear from Kyle “on the computer” and says “the computer’s safer”, an obvious reference to the risks posed by talking on the phones. [106] Kyle’s people in Edmonton are unidentified. The November 19 call from M.C. to Kyle came from 708 area code. Ms. Chase confirmed that this is an Alberta area code. [107] There is no ready explanation outside of the intercepts for the reason that Kyle Cater would be owed money. did hear evidence from his mother that he was selling clothing but she testified this enterprise did not get underway until after his arrest in 2009. [108] On November 30, Kyle had two anxious calls with D. “D.” S. (Intercept 4, session #831 and Intercept 5, session #835) D. is “naked” because he had to “dump” his “thing”. He needs something to “bop-bop” and he needs it badly, telling Kyle: “Hey, seriously if you got somethin’ like, need it…’cause it’s real out here right now.” Kyle tells him to call him back in ten or fifteen minutes. [109] D. calls Kyle back, nearly fourteen minutes later. Kyle wants to know if he got hold of “AR” because “AR” has “all three of mine, right” he tells D. It becomes apparent later in the call that “AR” is Aaron Marriott. D. asks for the number, emphasizing that he needs “this” as soon as possible. He tells Kyle again that he is “naked” and is “waitin for something now” because he knows “shits about to pop off…” Kyle confirms again that AR has “all three of mine” but if D. can get hold of him, “he’ll come check you out…” D. asks for “Aaron’s number” and Kyle tells him [editorial note- telephone number removed]. [110] In the two November 30 calls with Kyle, D.’s tone is stressed and urgent. He’s looking for firearm, having had to jettison his. He anticipates trouble coming his way. It is apparent he views Kyle as potential source for what he needs. [111] D. connects with Aaron Marriott (Intercept 6, session #869) shortly after getting the number from Kyle. He tells Marriott that he was shot at the night before (“one of them guys come buckin’ at me last night”) He shot back but didn’t hit anything. He had to ditch his firearm (“just had to dump my shit”) He underscores the urgency of getting replacement gun: “I just dumped my shit, cuz. I’m out here naked. need something bad, cuz.” Marriott apparently has nothing available, not even “a shottie”. D. would have settled for “shottie”: “…it’s real out here cuz. Do you even got fuckin’ shottie?” Marriott tells him he’ll “check somethin’ out”, which throws crumb to anxious D. who says: “Seriously cuz, when like? It’s bad out here cuz. When can come get it? “Cause can get drive right now?” [112] There number of inferences draw from these calls. They are the only reasonable inferences to be made. Kyle Cater is viewed as someone who can supply firearm. He is stashing his guns elsewhere, reducing the risk of having them found in his possession. D. turns to him when in jam. Kyle doesn’t have his three firearms on hand; he indicates they are in Aaron Marriott’s custody. He connects D. to Marriott although Marriott either really doesn’t have the guns with him or at least makes it appear that way. D. is out of luck but not because he tapped the wrong sources. Neither Kyle nor Marriott told D. they didn’t know what he was talking about or that he was barking up the wrong tree. They were source for what he wanted, it just so happened at that time, the well was dry. [113] There are other intercepted calls that indicate Kyle Cater was “go-to” person for firearms. D.M. calls Kyle on December (Intercept 7, session #981) to ask if he remembers “that thing” they were talking about, which he refers to as the “ten after four”. Three days later, on December (Intercept 16, session 1219), D.M. asks Kyle if he remembers “that thing you gave me?” Kyle does and D.M. wants to know if he has anything like it, “Like anything smaller…” Kyle does not. “No”, he says. D.M. tells him he is going to go and “try that thing out and if it locks up, don’t even want it.” This doesn’t seem to impress Kyle who says: “…do your thing, buddy, do your thing, don’t really care.” Kyle ends the call quite abruptly at this point. [114] The day before this testy exchange with D.M., on December (Intercept 9, session 1103) C.M. calls Kyle looking for something for friend. The initial exchange leaves no doubt that the call is about business transaction. Kyle asks: “Black, Indian, Asian, Caucasian. What you need player?” C.M. tells him: “you know what need.” Kyle wants to know if he wants “a shottie or somethin’?” but C.M. explains “…he needs somethin’ small.” Although Kyle observes “they’re crazy expensive”, according to C.M., this doesn’t seem likely to be problem for the prospective purchaser. [115] C.M. tells Kyle in this call that the friend’s speeding ticket “And guess they’re gonna take his license and shit.” will be forgiven in exchange for “a little girlfriend” which, according to Michael Press, is practice employed by police to get illegal firearms, referred to as “patch” guns, off the street. [116] In the C.M. “little Derringer” call on December 4, 2008 (Intercept 9) Kyle indicates, when asked how much the “little Derringer” might cost, that he doesn’t know, he’ll “have to go check that out with my…partner.” As mentioned earlier, Ms. Chase confirmed on cross-examination that although J.M. had been Kyle’s partner in clothing business, that business did not start up until after Kyle’s arrest in January 2009. The reference in Intercept by Kyle Cater to “my partner” cannot therefore have been reference to J.M. and clothing business although it is hardly necessary to make this point as the content of the call does not lend itself to an interpretation that clothing was the subject of the discussion. [117] The need to “patch” gun over to the police is still outstanding as of December 12, 2008. On December 12, Kyle gets call from “C.”. (Intercept 27, session #1564) “C.” wants to know if Kyle has figured “anything out with that?” “C.” tells him he “can come grab it from ya” but Kyle advises “I just don’t really got it all in my possession right now, right? need to wait for the call.” “C.” tells Kyle “the cop” is telling him to “take it or leave it” which infer is reference to the offer to cancel the speeding ticket in exchange for “a girlfriend” that C.M. was explaining to Kyle on December in the “little Derringer” conversation. [118] Kyle’s status as gun source is further confirmed in intercepted calls on December that start with Shawn Shea’s call at 5:20 p.m. (Intercept 11, session #2261) Shea wants to know if Kyle has “got the ninja.” Kyle does not but will see if “he” does and if so, will call Shea “back in second ‘kay?” Shea is impatient. He calls two minutes later to be told that Kyle is waiting as “he’s just gonna call me back.” Kyle is told to “hurry man.” (Intercept 12, session #2262) [119] The “he” is Paul Cater. At 5:28 p.m. on December (Intercept 13, session #1117) Paul tells Kyle that “she won’t be around ‘til tomorrow.” Kyle is dismayed. Paul apologizes, “Sorry, man” but says to his son: “Like told ya before. need to get hold of her days in advance, right?” He is told by Kyle: “Well get it and keep it around.” In this 26 second call, the “she” becomes an “it.” [120] The net result of these calls between 5:20 p.m. and 5:28 p.m. on December is that Kyle is unable to produce “the ninja” for Shea. Again, Kyle is regarded as source for supplying firearm and again, he does not have it in his actual possession. It is being kept somewhere else. It is clear Kyle wants it to be more accessible. He tells his father to “get it and keep it around.” [121] Michael Press testified to his opinion that reasonable inference to be drawn from the word “ninja” was that it was code word for nine millimeter gun. He noted the resemblance between “ninja” and “nine”. It was his opinion based on listening to the series of intercepts on December (Intercepts 12, 13 and 14) that specific firearm was being referred to. am left with no doubt that Shea, Kyle and Paul Cater were all talking about firearm. It is reasonable inference that the gun they all understood each other to be referring to was nine millimeter. “9” was on Kyle’s radar. The day before, on December 3, Kyle had received text (Intercept 8, session #2589) from Jeremy LeBlanc: “sup big guy got that 9” which infer to have been reference to nine millimeter. [122] After Kyle learns that Paul cannot produce “the ninja” Shea is looking for, he calls Shea back. (Intercept 14, session #1118) Shea does not disguise his disappointment. “Fuck”, he says to Kyle and Kyle commiserates, “I know bud. know.” Shea then asks: “Nothin’ at all? which animates discussion about alternatives. Kyle has “that poopy one that you don’t even want. That you always turn down.” Shea asks about the “three o’clock” reference which Kyle doesn’t seem to grasp. After some stumbling around in the exchanges with Kyle, Shea resorts to asking: “What’s the time, the 3-0-8?” He thinks it doesn’t “work” but Kyle assures him it does. Kyle notes that Shea hasn’t wanted it when he’s brought it to him before. Shea wants to know if it is “full” but Kyle advises, “No…Only half…” [123] The reference to 3-0-8 cannot have been true inquiry about the time. The call is taking place at 5:30 p.m. “308” in Mr. Press’ opinion is calibre. That is the most reasonable inference. According to Mr. Press, .308 calibre firearm is long barrel hunting rifle very like .22 but with larger calibre. also infer that the full/half full references relate to ammunition. That is the only logical inference considering context and it is supported by Mr. Press’ opinion that the parties were discussing ammunition. [124] Still trying to settle on another option in light of “the ninja’s” unavailability, Kyle wants to know what is “rockin’ with them other ones…are they out of town?” Shea tells him “no, they’re…just…it’s good time.” Shea emphasizes that he “don’t really want nothin’ small.” Kyle gets this, “I hear ya. hear ya” and tells Shea he is “tryin’ to think of something man.” He tells Shea to call him back in five minutes. Kyle tells him he has to run up the street. Shea doesn’t like the sound of this, “Fuck” he says, and Kyle reassures him “it’s like right by there though.” [125] Mr. Shea’s wish not to have something that was “small” could have been satisfied by .308 rifle. Mr. Press testified that .308 is “an extremely powerful hunting rifle.” [126] As with D.S. on November 30, on December 4, Kyle does not have sought-after firearm in his actual possession. To get it he will have to “run up the street.” Mr. Press noted that it is very common for firearms traffickers not to have guns on hand. He observed that depending on the police presence, traffickers may stash guns other than where they reside to avoid being caught with the guns if the police are able to obtain search warrant. It’s perfectly logical: firearms traffickers do not want to get caught in actual possession of their illegal firearms. [127] Firearms-related talk continues through December 2008. caller on December (Intercept 24, session #1327) asks Kyle if he has “a little thing” they could use. The caller has plans: “We’re goin’ down to do something on Barrington in little bit.” Kyle thinks he can “probably” help. The caller wants something “that’s not loud, though…” [128] On December (Intercept 26, session #385) Kyle talks to his brother, M.C. friend, “H.”, takes the phone later in the call. M.C. is thinking of getting “a little chunk. You know what mean?” H. wants to know if Kyle has “a bitch” for him to “hang on” when he gets home, “you know what I’m sayin’?” When H. tells him: “You got girl for me ‘cause got couple of people wanna go hang out with, with that girl”, Kyle replies: “Yeah, can do somethin’ for ya.” H. seems to be contemplating crime when he says “comin’ home on grimy tip” “grimy” being term for crime according to Mr. Press and doesn’t want it known that he is back. He again emphasizes the importance of accessing firearm: “As long as you got me covered on that whore…I’ll even pay for one, right?” Kyle says in response to this: “All right, cool, man….you got my number, ‘kay?” [129] find that the references to “a girl”, “a bitch” and “that whore” are all references to guns, using various descriptors for women. In reaching this conclusion, not only have Mr. Press’ opinion about the use of female references as code for firearms but the context of the discussion makes this the only reasonable inference. [130] Intercept 26 on December confirms again that Kyle is known source for guns. The acquisition for H. may involve consideration. Kyle indicates he is open for business. [131] Kyle’s ability to provide firearm is in demand again on December 15. (Intercept 28, session #1826) He is asked: “Think you can get me that girl tomorrow?” What is being sought is “Not the black one, the other one.” Kyle seems to feel confident about being able to fulfill the request: “All right…Yeah, yeah. For sure bud.” [132] Near the end of December 2008, Kyle is tapped again as reliable source for gun. L.S. calls Kyle on December 27 at 7:56 a.m. (Intercept 31, session 2681) He sounds stressed. “…gimme call back. need your help” is the message he leaves. L.S. doesn’t let up. He has problem. He wants to meet with Kyle urgently. (Intercepts 32 and 33, sessions #2682 and #2683) Kyle wants to know if L.S. needs “a heater”, which he does. Kyle breaks the bad news: “…they ain’t even around right now.” L.S. wants to know when Kyle can get one for him. Kyle tells him he doesn’t know because “…my buddies where got them at.” L.S. does not lose hope, asking if Kyle can get it for him “today”, to which Kyle responds: “Most likely.” L.S. is appreciative and tells Kyle: “Cause this is serious.” (Intercept 34, session #2684) That call ends around 8:40 a.m. [133] By noon on December 27, Kyle has not produced any results. L.S. calls him in state of agitation. (Intercept 35, session #2693) He says there is “a beef” and that “they” are getting closer and know where he lives. He is explicit: “Cause there’s been lot of threats and shit, so need somethin.” L.S. wants to meet Kyle and urges him: “Don’t forget none of them things.” He tells Kyle he is counting on him, “…you’re the only person in my corner, bud.” [134] L.S. finds it necessary to call Kyle back at 3:24 p.m. (Intercept 36, session #2713) Kyle says he is looking for “a legit drive” because he “can’t really drive around with that, you know?” The concern is the “heat”, “it’s hot, cuz” he tells L.S. L.S. starts looking into getting drive himself to meet Kyle. (Intercept 37, session #2716) Kyle is in Purcell’s Cove and tells L.S.: “…that thing…like it’s not right on me, right? Like, it’s heat out right now, right?” [135] It seems that L.S.’ worries are not much of concern to Kyle. He goes to the mall which is where he is when L.S. calls him next at 4:09 p.m. to advise that he has drive. (Intercept 38, session #2720) By 4:21 p.m., Kyle has gone to Walmart in Bayer’s Lake. L.S. has drive but Kyle tells him: “I don’t got it on me, man. don’t fuckin’ run around with that, bud, that’s crazy.” (Intercept 39, session #2721) Kyle promises to call L.S. when he gets “back to town.” He reiterates: “…I just don’t have it on me, man, don’t.” [136] The L.S.’ calls reveal number of truths. Kyle is once again called upon to help out an associate who has found himself in danger. What he is being asked to supply is “a heater” and although hardly need an expert to tell me that means gun, Mr. Press indicated this is common coded term for firearm. Kyle is aware of the police presence in the neighbourhood and the risks of driving around with gun. Maybe the situation is too fraught or maybe he just doesn’t care that much for L.S.’ difficulties. Whichever it is doesn’t matter, just as it doesn’t matter that he isn’t any use to L.S. in the end. These intercepts further establish Kyle Cater’s involvement in the illicit firearms trade. Do The Intercepts Disclose Discussions About Specific Firearms? [137] have already noted some intercepted conversations where find specific firearms were discussed. The ones have mentioned are: Intercept on December 2, 2008 where D.M. tells Kyle: “I just need to get that thing. You know what we were talkin’ about?” Kyle responds with, “Yeah, the, the….” And D.M. confirms: “Yeah, ten after four. [138] “thing” that is “ten after four” is not reference to time. Mr. Press testified about how time references are used as code to describe calibre. find this conversation referred to .410 shotgun. D.M. is looking for gun. He is anticipating trouble. “Lang and fuckin’ Marcel and Hatcher just tried to run up and grab me.” [139] have also already discussed the “little Derringer” call. (Intercept on December 4, 2008) There is also the .308 that Kyle and Shawn Shea discuss on December in Intercept 14. [140] On December (Intercept 23, session #1324), an associate of Kyle’s, I.E. mentions “my buddy got one…his cell phone number’s just 7-45, right?” Kyle doesn’t seem to immediately grasp what I.E. means. He asks him: “What, one of those little things?” I.E. tells him “Well, it’s not little thing…I just said the number to it, right. The last digits to my cell phone 7-45?.. It’s 7-45, it’s the last digits.” The light goes on and Kyle asks what he wants “for that?” and is told, “Twenty-five.” [141] Kyle wants I.E. to “go grab it” and he’ll “take it.” I.E. describes it as “beautiful”, “clean” and “fresh.” He says he just wanted “to line up buyer” because he knows “for sure” his buddy is “gonna get it.” Kyle is keen: “Oh yeah, I’m down with that.” [142] The only reasonable inference to be drawn is that I.E. and Kyle are discussing .45 calibre gun, one that hasn’t been used in crime yet and so is “fresh” and “clean”, with price tag of $2500. Kyle wants to buy it. [143] By p.m. on December 7, about three hours after the intial “7-45” call, I.E. is expecting to have the gun in his possession “in about half an hour” and wants to show it to Kyle. He tells Kyle the seller wants “three” for it. “Three” is bit stiff for Kyle. He doesn’t know if he can “do it for three” and I.E. commits to trying “to talk him down for ya.” (Intercept 25, session #1338) [144] I.E. doesn’t get back on Kyle’s radar until December 28. In the meantime on December 16, Kyle talks to R.S. (Intercept 29, session 1851) R.S. wants to tell Kyle he has something he thinks Kyle may be interested in. He struggles with how to talk about it on the telephone. He asks someone in the background, “How would say it to him over the phone?” He is told to use the phrase, “John Wayne” which he does. When asked if he is interested, Kyle tries to make sense of the reference: “What like thing, thing?” The effort of trying to communicate in coded language is too much for R.S. He tells Kyle: “A Smith and Wesson or somethin?” Kyle perks up. He is “very interested” and wants R.S. to call him back. It appears there may be debt involved as R.S. asks: “Can we wipe the bill?” [145] Ms. Cooper tried to suggest this call could have been about one of the other products available from Smith and Wesson, well-known gun manufacturer, such as bullet proof vest. Mr. Press did not think that was reasonable inference. Neither do I. There is no other reasonable inference than this call is about R.S. proposing to transfer Smith and Wesson gun to Kyle Cater, apparently in exchange for forgiveness of debt. [146] On December 28, Kyle learns that I.E. is “stuck with somethin.” Kyle offers to take “it off your hands for two days.” I.E. just wants “thirteen, twelve, thirteen.” (Intercept 41, session #2808) Whatever I.E. has, it’s “the primo” and “it’s bomb.” He wants to know if Kyle knows “anybody that would take it?” Kyle responds with “Yeah” and says he wants to “come check her.” (Intercept 42, session #2809) [147] Kyle gets drive from Katie Mills. (Intercept 43, session #2814) On his way to meet with I.E. they talk again on the phone. I.E. informs him he sent text: “I told ya was gonna bring somethin’ else too, just on, on me, so you’d know what it looks like.” (Intercept 44, session #2816) [148] The intercepted calls alert the police to the potential for an arrest for possession of firearm. Det/Cst. Mansvelt, who was present, testified to the events that followed. Surveillance was initiated and observations made of Kyle Cater getting out of silver Pontiac Sunfire. He was observed in green Honda Accord examining something in his lap with the Accord’s front-seat passenger swiveled around to face him. In orchestrating their rendezvous, I.E. had told Kyle to look out for green car. Although the police Quick Response Team subsequently pulled over the Sunfire in high-risk take down anticipating firearm would be seized, none was found. The green Accord was never stopped. As Det/Cst. Mansvelt testified: “We pulled over the wrong car.” [149] The surveillance described by Det/Cst. Mansvelt was not challenged in cross-examination. find Det/Cst. Mansvelt’s evidence to be reliable eye-witness account of the Kyle Cater/I.E. rendezvous at the Bedford Sobey’s parking lot at approximately 3:30 p.m. on December 28, 2008. [150] By 4:04 p.m. on December 28, the take-down has occurred and Kyle is laughing in call with his father about how he slipped through the net. (Intercept 48, session #2821) Kyle tells Paul Cater “…luckily, wasn’t in the car.” The “Tracey” Calls [151] On December 7, 2008, in the small hours of the morning, Paul Cater called Kyle in panic. Paul makes an incendiary disclosure: “Somebody walked off with Tracy.” Kyle is told to get hold of J.J. and to tell him to “get his ass back down here, now.” Kyle’s response is to warn Paul, the escalating concern evident in his voice: “Don’t be fuckin’ with me”, to which Paul replies, with considerable heat: “I’m not fuckin with you. Would be calling you this late at night if was fuckin?” (Intercept 17, session #1308) [152] At 1:41 a.m. Kyle calls his father back and asks who else was there. Paul tells him that “the other two” are on their way back and “the only one missing is [J.J.]” Paul tells Kyle that “Chelsea’s friends” are there and then terminates the call because “Torina’s on my other line, hang on.” (Intercept 18, session #1310) [153] At 1:43 a.m., using the landline at his home, Kyle calls Torina on her landline. (Intercept 19, session 254) She tells him that two of them are back in the house; that she grabbed them and brought them back. Kyle asks: “It’s still not back?” Torina replies: “No, it’s not, bud, and just told one of them that they better use it on me if they did, and didn’t all the way here. I’m here, and they’re with me.” Sounding alarmed, Kyle asks: “Well, how is it gone, like, how is it gone? How would they even know that it was there?” Torina replies: “Cause, you know, you know where, you know how your father always like looks on the computer and Tracy likes lookin’ on the computer and stuff, on the side? You know how Tracy usually pretty much looks at the Internet with Paul?” Kyle responds with, “Yeah” and Torina continues: “Well, right beside there.” Kyle says: “Well, what in the fuck?” Torina tells him: “Yeah, there’s only three people in my house, bud. …the rest of them already here, were already, been patted down. There’s only three people that left my house. One, was [J.J.] The other two just picked up back on Leiblin Park and brought them back here.” Shortly after this, Kyle asks Torina if she is “…sure that it ain’t misplaced, or somethin’?” She tells him, “No, bud.” Kyle sounds agitated when he inquires: “…Like why, why was it out? Like, it shouldn’t have been out around any…”, to which Torina replies: “It was the place where it always…” [154] Three minutes later, at 1:46 a.m. on December 7, Paul Cater calls Kyle and tells him: “She just found, she made it home safe…she just called me up, she made it home safe.” Kyle is no longer worked up. He tells his father: “Yeah, that’s what thought. All right.” (Intercept 20, session #255) [155] It is mid-morning on December by the time Kyle speaks to Torina again and asks her: “Yeah, so, that’s back though, right?” “Oh yeah” says Torina and Kyle asks her where it was. She tells him: “Oh, don’t even, your father’s an idiot.” Kyle says he presumed it was misplaced, and Torina confirms it was. There is then discussion about how scared everyone was by these events. Kyle asks if Torina realizes how scared they had him last night. She replies by asking him if he understands how scared she had two other people last night. Kyle tells her that they had him so scared that he was saying, “…you know what don’t even give fuck…you know what, it’ll come back on itself.” Torina tells Kyle she cared and feels like goof; that those two boys she brought back to the house “were scared as fuck.” She explains that the boys “had things in their face, and then your father just said...there she is.” Kyle asks again: “So, it’s back though, right” and Torina tells him it is. (Intercept 21, session #1318) [156] In the call with Torina, Kyle tells her that “J.” just called him asking if Kyle had called him “last night.” Kyle explains to Torina that he told J.J. he had called him, that he just had to ask him something and would call him back “in second.” [157] Right after the call with Torina, at 11:39 a.m., Kyle calls male whom can reasonably infer is J.J. (Intercept 22, session #1319) The fact of Kyle telling Torina he had just spoken to J.J. and said he would call him back “in second” and the content of the call lead me to draw the inference that Intercept 22 was call to Mr. J. (I also note that the number called by Kyle was number subscribed to by A.J.) Kyle explains to J.J. that something had been misplaced last night “and they found it, though, don’t worry about it.” He goes on to indicate that he had called J.J. the night before about this but “they called me back right after that” to tell him they had found “it.” Kyle admits that he “…fuckin’ lost my fuckin’ cannon, and started calling ya”, statement that lends itself to the reasonable inference that Kyle is describing to J.J. that he called him in state of high agitation over the thing that went missing. [158] It is crystal clear to me from these “Tracey” calls that “Tracey” was thing, an object, not girl or woman, notwithstanding some feeble attempts by speakers to portray “Tracey” as person. Torina Lewis, Paul Cater and Kyle Cater failed to maintain the charade of talking about “Tracey” as female person when they lapsed into referring to “Tracey” as “it.” And although Mr. Press agreed with the suggestion put to him by Ms. Cooper that “Tracey” could have been reference to drugs, expensive jewelry or to “anything”, the context of the intercepts does not support alternative meanings. [159] The only reasonable inference is that “Tracey” is gun. Paul, Torina, and Kyle are all in state over the disappearance of this object. Torina leaves the house to go and find the boys that had left just before Tracey’s disappearance was noticed. Everyone was scared, including Kyle. People who had been under suspicion were patted down when they were returned to the house. These frantic efforts were for the purpose of locating missing gun. There is also the reference by Kyle in his call to J.J. that he lost his “fuckin’ cannon.” According to Mr. Press, “cannon” is code word for gun. [160] Having listened to Intercept 22 again, am not confident think Kyle is using “cannon” to mean “firearm.” think he could be referring to losing his grip, going off the deep end, in other words, what happens when person is in highly agitated state because of some event. If this was what Kyle was conveying it just as equally suggests he had vested interest in “Tracey” and, as his tone, manner and words indicate in the “Tracey” calls, was thrown into panic at the news that “Tracey” was missing. [161] Ms. Cooper has tried to suggest the missing item was drugs. She secured evidence from Ms. Chase that when she was married to Paul Cater he smoked lot of cannabis and would get very worked up if it was taken away. Even if that was still the case in December 2008, it does not support the reactions of Paul, Kyle, and Torina nor is it consistent with Paul calling Kyle to report on Tracey’s disappearance. This had nothing to do with drugs. Paul, Kyle, and Torina knew what was being discussed. It was gun, referred to by home-grown code word they all understood. It was Mr. Press’ evidence that in many cases, certain groups will create their own coded term or language. Was Kyle Cater in Constructive or Joint Possession of “Tracey”? [162] On January 15, 2009, Kyle Cater, in conversation with his close friend, J.M., was chewing over the search of 80 Cavendish Road. (Intercept 56, session #4060) He had already heard about the police raid from Torina who had called him at 6:48 a.m. once she was released from police custody. J.M. had called Kyle at 8:21 a.m. from [editorial note- telephone number removed], (a number listed in Kyle’s contacts as “JMac” whom Ms. Chase identified as J.M.) Almost immediately he asked Kyle, did “they get anything?” to which Kyle replied: “Yeah, think so…I don’t know, the Tec, think the Tec was there or somethin.” [163] Torina had told Kyle in their earlier conversations that the police knew what they were looking for, that it wasn’t drugs and that “we had nowhere to put that other one.” (Intercept 55, session #4058) Kyle plainly knew what was under discussion as he had just observed that “that’s gonna be like three years.” He subsequently told J.M. his dad is “probably gonna get like five years.” The recognition that possession of prohibited firearm attracts serious prison time is also mentioned by Kyle in one of his January 15 texts, obtained in the forensic analysis of his cell phone. He told Katie Mills, “I think he’s going to three to five.” She had just texted him: “Was there anything there.” [164] Kyle Cater knew the AP was at 80 Cavendish. He mentioned the potential prison terms to Torina (Intercept 55) and in the text to Katie Mills before Torina used the words “the Tec” on the intercepts. (Intercept 57) [165] Torina confirms how dire the situation really is when she talks to Kyle just after he finishes talking to J.M. She tells Kyle: “…I’m gonna say right over the phone, know they found the Tec…because it was right there.” Kyle is under no misapprehension about what this means: “That’s bad”, he says. (Intercept 57, session #4062) [166] From these January 15 intercepted calls it is obvious that Kyle knew there was prohibited firearm, that he and Torina referred to as “the Tec”, at 80 Cavendish. Very similar in appearance to Tec 9, the gun that was seized was actually an AP nine millimeter pistol. With value according to Michael Press of $4500 $5500, its temporary disappearance on December had created crisis. It was by far the most valuable firearm at 80 Cavendish. Kyle Cater’s comment to J.M. about “that never really ever got mentioned over the phone ever before” reveals his knowledge that they had been careful to talk about the nine millimeter pistol in code, avoiding any of the applicable technical terms up to that point. [167] Kyle’s knowledge of the firearms at 80 Cavendish is also confirmed by his exchange with Torina on January 15 when he calls her back after she has told him about the police raid. (Intercept 55, session #4058) Torina in clear reference to Paul, tells Kyle: “…and the thing about it, told him the other day. Get rid of everything ‘cause got feelin.” Kyle observes: “I said that too.” This exchange with Torina demonstrates Kyle’s knowledge of the guns at 80 Cavendish. He obviously also tried to exercise a measure of control, telling his father to get rid of what was there, to no avail. That Paul Cater apparently did not re-locate the guns at Torina’s and Kyle’s prompting does not offset the evidence that indicates measure of control by Kyle over these firearms. will return to this issue shortly. [168] The “Tracey” calls on December 7 and the January 15 calls indicate that Kyle had much more than merely a passive or quiescent knowledge of the firearms and ammunition at 80 Cavendish. The nature and extent of his knowledge amply satisfies what is required by the knowledge component of constructive and joint possession. What remains to be assessed are the issues of control and consent. [169] Possession is defined in section 4(3) (a) and (b) of the Criminal Code as follows: (a) person has anything in possession when he had it in his personal possession or knowingly (i) has it in the actual possession or custody of another person, or (ii) has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person; and (b) where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall be deemed to be in the custody and possession of each and all of them. [170] am satisfied that the Crown has proven beyond reasonable doubt that Kyle Cater knew the firearms seized from 80 Cavendish were there in the actual possession of his father and stepmother. must now determine if there has been proof beyond reasonable doubt that Kyle had “some measure of control” over the firearms. (R. v. Bremner, [2007] N.S.J. No. 501 (C.A.), paragraph 61) This “measure of control” does not have to be exclusive. (R. v. Miller, [1984] B.C.J. No. 1491 (C.A.), paragraph 114) [171] There are a number of indicators of Kyle Cater having a measure of control over the firearms at 80 Cavendish. The December “Tracey” calls are indicative of control. Paul Cater calls Kyle to tell him Tracey has gone missing. Kyle presses Paul and then Torina to explain how this could happen. He wants to know how anyone would even know that “it” was there. Torina gives him description of usual place where “Tracey” is located. He isn’t impressed by what has happened: “Well, what in the fuck?” he says to Torina. (Intercept 19) [172] Kyle also had sufficient control that he was able to answer Paul on December 28 when he calls to ask: “I wanna know what you did with that?” Kyle tells him, “It’s in the same spot” which he explains is, “The rose, the rose on the side.” That is enough to tell Paul where to look, “All right, the rose”, he says. (Intercept 53, session #2846) [173] Although it is not immediately clear from this December 28 call what exactly Paul Cater is looking for, when 80 Cavendish is searched on January 15, the magazine for the nine millimeter pistol is found tucked behind pair of ceramic hands adorned with roses at the wrists. It is reasonable to infer that there were customary stashing places at 80 Cavendish for the firearms and ammunition, that Paul, Kyle and Torina all knew where these places were, and that Kyle had put either the nine millimeter (of the firearms, only the pistol would fit in this spot) or the ammunition magazine behind the hands with the roses. The fact that Kyle could move these items around at his father’s house is an indication that he had “a measure of control” over them. [174] Ms. Cooper sought through cross-examination, for example of Cpl. Mark Cameron, to establish that there were other roses or rose motifs at 80 Cavendish. The only other obvious representation of roses was on the cover of book in the nightstand of the master bedroom. think it is unlikely that this would have been described as “the rose” but even if it had been what Kyle Cater was referring to on December 28, it doesn’t change the fact that he had sufficient control that Paul had to call him to ask in guarded terms where he had put an item. infer from the use of guarded language by Paul and Kyle in this call, the context of the calls overall, and the location, that what was being discussed was either the nine millimeter pistol or its ammunition magazine. [175] have no doubt that Paul, Kyle and Torina were all the more vigilant about the pistol’s whereabouts following the panic of December 7. The December 28 call from Paul implies that. find that the AP was obviously moved from next to the computer, the location Torina described for it on December (Intercept 19), to where it was found in the police search of January 15. On January 15, the police located no firearms in or near the computer desk. [176] Ms. Cooper emphasized repeatedly that Kyle did not live at 80 Cavendish Road. That, and the fact that there is no evidence he had key to 80 Cavendish, are immaterial. Barbara Chase testified that Kyle Cater enjoyed very good and close relationship with his father and Torina Lewis. This is also borne out by the intercepts. He would visit with them regularly and photograph on his cell phone shows him reclining with the family dog on the sofa in the living room of 80 Cavendish with the grandfather clock in the background, furnishings that are evident in the police search photographs. He was obviously very much at home even though not resident. [177] also draw the inference that Kyle had exercised control over his father’s possession of the nine millimeter on previous occasion. On December 4, Shawn Shea was looking for “the ninja.” Kyle follows up the request by talking to Paul. Paul can’t produce the gun because he needs more notice to get it back into his possession. Kyle issues command: “Well get it and then keep it around.” find that is reference to the nine millimeter, called “Tracey” by Paul and Torina, that is subsequently seized by police on January 15. Conclusion on the Charges Relating to the Firearms Seized from 80 Cavendish [178] find the Crown has established beyond reasonable doubt that Kyle Cater was in possession of the firearms, magazines, and ammunition at 80 Cavendish, both constructively and jointly. Accordingly I find him guilty of Counts 4, 5 and 6 of the Information sworn January 15, 2009, unlawful possession of the sawed off Cooey shotgun, the Mark II Lakefield rifle, and the AA Arms AP 9 handgun, contrary to section 88(1) of the Criminal Code. I also find him guilty of Count 7, unlawful possession of a loaded prohibited firearm, a sawed off Cooey shotgun, contrary to section 95(1) of the Criminal Code, and of the amended Count 8, unlawful possession of an unloaded prohibited firearm, the AA Arms AP 9 handgun together with readily accessible ammunition capable of being discharged in the firearm, contrary to section 95(1) of the Criminal Code. In light of the convictions on Counts and 8, unlawful possession of prohibited firearms, am staying the convictions on Counts and 6, the charges of unlawful possession of the Cooey and the AP 9. [179] I further find Kyle Cater guilty of Counts 9 and 10 of unlawfully possessing the Cooey and the AP 9 knowing their possession was unauthorized, contrary to section 92(1) of the Criminal Code. And I find him guilty of Count 11, unlawfully possessing a prohibited device, two over-capacity magazines, contrary to section 92(2) of the Criminal Code. Careless Storage [180] Kyle is also charged under section 86(1) of the Criminal Code with three counts of careless storage relating to the firearms seized from 80 Cavendish. I am acquitting him of those charges. am not satisfied there has been proof beyond reasonable doubt that Kyle was responsible for how the firearms were stored when they were found in the search. [181] The intercepts do indicate that Kyle had knowledge of the location of certain of the firearms at certain times. For example, he is able to tell his father on December 28 where to find either the nine millimeter or the ammunition magazine, in “the same spot…the rose on the side.” (Intercept 53) When “Tracey” went missing on December 7, Kyle indicated he understood what Torina was referring to when she described, in guarded language, where “Tracey” had been kept. However I am not able to find beyond a reasonable doubt that Kyle had stored the three firearms in the manner they were found on January 15. It is Torina who tells him on January 15 that she may lose her children because the firearms “weren’t kept in place where the kids couldn’t get them…”(Intercept 57) [182] Kyle knew the firearms were at 80 Cavendish, he exercised some control over them, and he consented to Paul and Torina housing them, but cannot infer from the evidence that he knew or consented to how they were stored when the police found them on January 15. am acquitting him of these charges. [183] Having dealt with all the charges relating to the firearms and ammunition seized at 80 Cavendish, will now address the firearms trafficking charges. Firearms Trafficking Indicia [184] Kyle Cater is charged with five (5) counts of possession of specific firearms for the purpose of offering to transfer, contrary to section 100(2) of the Criminal Code. He is charged with five (5) counts of offering to transfer, with or without consideration, specific firearms, while knowingly not being authorized to do so contrary to section 99(2) of the Criminal Code. The five firearms that are the subject of these charges are: .410 gauge shotgun, Derringer pistol, .308 calibre rifle, .45 calibre handgun, and Smith and Wesson. [185] He is also charged with two generalized counts, one of possessing firearm for the purpose of offering to transfer it, contrary to section 100(2), and one of offering to transfer firearm, contrary to section 99(2). have paraphrased these counts. The Business of Firearms Trafficking [186] have already discussed the intercepts that indicate Kyle Cater was in the business of acquiring and distributing guns. He was “go-to guy” for associates looking for guns. He operated in the context of network, reassuring S.G. that he had people in Edmonton who could supply an ammunition magazine and conferring with number of associates locally about guns. The evidence establishes that he was risk aversive: he did not carry the guns on him, “that would be crazy” he told L.S., he was keenly aware of the police presence in his neighbourhood “the heat”, and he stashed his guns with associates, such as Aaron Marriott. Money is discussed in the intercepted calls and he mentions having partner. When guns are on offer, he’s keen: he responds to I.E.’s enthusiasm about the “beautiful, clean, fresh 7-45” he is about to view by indicating, “It sounds good to me.” He is “very interested” in the Smith and Wesson R.S. tells him about. [187] The intercepted communications reveal the commercial nature of Kyle’s activities. Calls with R.S. provide an example. About an hour after the conversation with I.E. on December about the “7-45” that is “beautiful, clean, and fresh”, Kyle is talking to R.S. about debt. It is obvious he is trying to collect: “How much money you got on you down there?” he asks R.S. Not much, R.S. tells him, but he and an associate are planning something “tonight” and “I’ll probably just pay you the twelve-fifty all off at once, at the end of the night” he assures Kyle. On December 16, in discussion about the Smith and Wesson, R.S. asks Kyle, “…if can get it .. Can we wipe the bill?” This is acceptable to Kyle, “Yeah” he says. [188] And there are of course the guarded conversations using coded language. have already found there is no support for the suggestion that the discussions concerned activities not related to firearms. The use of guarded, coded talk to obscure illegality is unremarkable: observed this previously in drug conspiracy case and what said then is as applicable here: 77 Suggesting that the calls were of an innocuous nature and could have been about anything, including any number of innocent purposes does not square with the evidence. have no doubt about the nature of the calls, or the illegal nature of the enterprise that was being carefully skirted around by the deliberately vague references. (R. v. Shea, [2010] N.S.J. No. 632) [189] All of the indicators have just reviewed satisfy me that during the material time, Kyle Cater was engaged in the illegal gun trade. Coded Language Describing Specific Firearms [190] am also satisfied beyond reasonable doubt that the calls referring to “ten after four”, (Intercept 7) “little Derringer”, (Intercept 9) “3-0-8”, (Intercept 14) “7-45” (Intercept 23) and “Smith and Wesson” (Intercept 29) were calls about specific guns, .410 gauge shotgun, Derringer pistol, .308 calibre rifle, .45 calibre handgun, and Smith and Wesson. accept Michael Press’ opinion evidence about what these coded or identifying references mean in the context of the specific conversations and the intercepts as whole. The Meaning of “Transfer” under the Criminal Code [191] According to section 84 of the Criminal Code, “transfer” means: “sell, provide, barter, give, lend, rent, send, transport, ship, distribute or deliver.” do not find R. v. Grant, 2009 SCC 32 (CanLII), [2009] S.C.J. No. 32, referenced by Ms. Cooper to have any relevance to the charges and evidence against Kyle Cater. Possession under the Criminal Code [192] have already discussed the elements of possession and how constructive possession is made out. As have indicated, criminal liability for possession does not depend on the accused being in actual possession of the item, in this case, firearm or firearms. will encapsulate here brief but helpful summary on the law from the Ontario Superior Court of Justice in R. v. Bennett, [2008] O.J. No. 382: 17 The case law has interpreted the "knowledge and consent" requirement as it relates to the facts in this case as follows. Knowledge can be inferred from surrounding circumstances that show that the accused must have known about the subject matter in question or was willfully blind or reckless in this regard: R. v. Aiello (1978), 1978 CanLII 2374 (ON CA), 38 C.C.C. (2d) 485 (Ont. CA). To establish consent, the Crown has to show that the accused had some measure of control over the item in question: R. v. Terrence (1983), 1983 CanLII 51 (SCC), C.C.C. (3d) 193 (SCC). This can be established by showing that the accused had the right to grant or withhold his consent about where the item in question was stored: Re Chambers and the Queen (1985), 20 C.C.C. (3d) 445 (Ont. CA) and R. v. Savory, 1996 CanLII 2001 (ON CA), [1996] O.J. No. 3811 (Ont. CA). If the accused had such right to grant or withhold consent, then constructive possession can be established because there would be measure of control or at least right of control: R. v. Nixon, [2007] O.J. No. 741 (SCJ). “Ten After Four” [193] It is apparent to me from the intercepted conversations that Kyle Cater had possession, likely constructive possession, of .410 gauge shotgun on or about December 2, 2008. I infer this from Intercept 7, a conversation on December 2, 2008 with D.M. and from the evidence that establishes Kyle was stashing his guns at locations other than where he was living. I find that the purpose of Kyle’s possession was offering to transfer it, that is, his purpose conforms to the Criminal Code definition of “transfer.” It was a firearms trafficking purpose. further find that Kyle offered to transfer the .410 shotgun to D.M. who had told him: “I just need to get that thing. You know what we were talkin’ about.” [194] Not that it is required to establish guilt but also find that D.M. did obtain the .410 gauge shotgun from Kyle and was none too pleased about its features: “You know that thing you gave me…You got anything…smaller…I am gonna go out and try that thing out and if it fuckin’ locks up or whatever…I don’t even want it.” (Intercept 16) Mr. Press testified that .410 shotgun is usually used for hunting but that it can pack deadly punch. Ms. Cooper suggested it would not be used for self-defence. Mr. Press disagreed. Presumably it could be used offensively as well. The “Little Derringer” [195] am satisfied that Kyle Cater had possession, again likely constructive possession, of Derringer pistol, on or about December 4, 2008. find that the purpose of Kyle’s possession was offering to transfer it, that is, his purpose conforms to the Criminal Code definition of “transfer.” It was firearms trafficking purpose. infer his possession and its purpose from Intercept where Kyle responds to request from C.M. on behalf of friend for “a girlfriend” with suggestion that it might be “a little Derringer” and advises that he’ll have to decide if he wants to “get rid of any of mine…” As for price, Kyle will have to “check that out with [his] partner.” He offers to transfer it to C.M’s friend, “Tell him it might be like…thirteen, fourteen, cuz.” He is not “patching” gun over to the police: he is offering to sell Derringer for thirteen to fourteen hundred dollars which C.M.’s hapless friend intends to give the police to save his license. C.M. tells him his friend will pay cash. The “3-0-8” [196] find that Kyle Cater had possession, apparently constructive possession, of .308 calibre rifle on or about December 4, 2008. find that the purpose of Kyle’s possession was offering to transfer the .308, that is, his purpose conforms to the Criminal Code definition of “transfer.” It was firearms trafficking purpose. infer this from Intercept 14 where Kyle offers to deliver the rifle to Shawn Shea. Shea’s equivocation about whether it is what he wants is immaterial to the charge. [197] Kyle Cater is charged that he had possession on or about December of .45 calibre handgun. infer from the intercepted communications with I.E. (Intercepts 23 and 24) that he and I.E. discussed .45 calibre handgun on December 7, 2008. find Kyle did not have possession of the handgun until December 28 when he rendezvoused with I.E., rendezvous captured by the intercepts (Intercepts 41 46) and observed by the police surveillance team. On December 28 find that Kyle Cater had actual possession of the .45 calibre handgun for the purpose of offering to transfer it, in other words, his purpose in possessing the gun conforms to the Criminal Code definition of “transfer.” It was firearms trafficking purpose. [198] As the Crown conceded in final submissions, there is no evidence that Kyle offered to transfer the .45 calibre handgun. The only evidence is that he was interested in acquiring it and met with I.E. to examine the merchandise. The “Smith and Wesson” [199] On December 16, R.S. had business proposition for Kyle Cater, Smith and Wesson to clear debt. Kyle was “very interested” in the gun. (Intercept 29) There is no evidence that satisfies me that Kyle had possession of the Smith and Wesson however. Intercept 29 indicates that it is R.S. who has possession of it. Furthermore, am not persuaded there is any evidence of Kyle offering to transfer the Smith and Wesson. The Crown points to call between Paul Cater and Kyle about Paul getting to keep something if he can get it fixed. (Intercept 40) am unable to find that this call is connected to the Smith and Wesson. There is nothing in Intercept 29, the December 16 call between R.S. and Kyle Cater, to suggest the Smith and Wesson is in need of repair. do not find that Intercept 30 between R.S. and Kyle advances my understanding of the condition of the Smith and Wesson nor is any link made with Paul Cater. Furthermore, the charge against Kyle of offering to transfer the Smith and Wesson alleges this to have occurred on December 7, 2008 whereas the call where Paul reminds Kyle he could have “it” if he can get it fixed occurred on December 27. Satisfying the Criminal Code Definition of Firearm [200] Notwithstanding the intercepts, Ms. Cooper has submitted that the Crown’s case on the firearms trafficking charges fails because none of the guns were recovered and without testing there is no proof they were operable. Operability is necessary component of finding that “barreled weapon” is in fact “firearm” as defined in section of the Criminal Code. recited this definition earlier in these reasons at paragraph 31. Ms. Cooper has suggested that even if find that guns were being discussed in the intercepts, which have found, there is no evidence to satisfy me that the guns were in an operable condition and not broken, deactivated or replicas. [201] Assessing whether the intercepted communications concerned “firearms” as this is defined by the Criminal Code requires me to take in account all the evidence. (R. v. Charbonneau, [2004] O.J. No. 1503 (C.A.), paragraph 3; R. v. Willis, 2007 ONCJ 605 (CanLII), [2007] O.J. No. 5691 (C.J.), paragraph 31) Inferences can be drawn from descriptions given of the gun and the circumstances surrounding its use. (R. v. Dunchie, [2006] O.J. No. 5455 (S.C.J.), paragraph 55) How people behave in relation to gun is relevant to determining whether it is firearm. (R. v. Abdullah, [2005] O.J. No. 6079 (S.C.J.), paragraph 29) Where all the circumstances lead to an inference that the item under discussion is firearm, then am entitled to draw such an inference. (Dunchie, paragraph 56) [202] There is photographic evidence that suggests real firearms were Kyle Cater’s trade. Three photographs of guns and ammunition were taken from Kyle’s cell phone. Michael Press identified the guns shown lying on blanket with ammunition scattered around them. He identified Derringer; top-break revolver, mostly silver in colour, manufactured by number of companies including Smith and Wesson; longer barreled firearm that appears to be semi-automatic firearm and is similar in appearance to .22 calibre handgun; smaller European-designed handgun with slide loading mechanism for “racking” the gun. He also identified .22 calibre long rifle ammunition which could be fired from the semi-automatic, and .38 special ammunition which could possibly be fired from the revolver or the Derringer. [203] Mr. Press had no difficulty identifying what is depicted in the cell phone photographs. However, he acknowledged he could not determine operability without testing the featured guns. [204] The photographs do not decide the issue for me, the intercepts do. The intercepted communications provide me with all the evidence need to be satisfied beyond reasonable doubt that the guns being discussed in the intercepts, including the .410 gauge shotgun, the Derringer pistol, the .308 calibre rifle, the .45 calibre handgun, and the Smith and Wesson, were “firearms” under the Criminal Code definition. Kyle Cater and his associates all talked about the guns in manner that makes it clear these were operable, functioning firearms. The use of coded language, concerns about police detection, stashing, references to large amounts of money, and enthusiasm for something that is “fresh”, “clean”, and “beautiful”, lead me to the irresistible conclusion that it was firearms that were being discussed. It is ridiculous proposition that D.S, “C.”, D.M., or L.S. were looking to Kyle Cater for inoperable, broken or facsimile weapons. They wanted something that would go “bop-bop” or not be “loud” or clothe them with protection when they were “naked.” They knew, as did his other associates, that he dealt in real, working guns. have no hesitation in finding the Crown has proven beyond reasonable doubt that the guns referred to in the intercepted conversations were “firearms” as defined in the Criminal Code. [205] It was suggested by Ms. Cooper that D.S.’s complaint about what Kyle had provided him (Intercept 16, discussed at paragraph 194 of these reasons) is an indication that the “thing” was broken. do not infer this from the intercepted conversation. Its meaning simply cannot be stretched that far. It is apparent to me on the evidence that Kyle was in possession of, and given the nature of his business, intended to transfer working firearm. [206] And to wrap up the “firearm” issue, find that R. v. Sinclair, [2006] A.J. No. 728 (Q.B.), relied on by Ms. Cooper, has no application to this case. Conclusion on the Firearms Trafficking Charges [207] My conclusions on the firearms trafficking charges can be summarized as follows: I find the Crown has proven beyond a reasonable doubt that Kyle Cater is guilty of Counts 3 and 4, relating to the .410 gauge shotgun; Counts 5 and 6, relating to the Derringer; Counts 7 and 8, relating to the .308 calibre rifle; and guilty of possession of the .45 calibre handgun for the purpose of offering to transfer it. also find that the intercept evidence establishes Kyle Cater’s guilt beyond reasonable doubt on Counts and in the firearms trafficking Information: that between the 18th day of November, 2008 and the 16th day of January 2009, he did possess firearm for the purpose of offering to transfer it, while knowing he was not authorized to do so, and that he did offer to transfer, with or without consideration, firearm, while knowingly not being authorized to do so. [208] I acquit Kyle Cater of Counts 9, 10, 11 and 12 on the firearms trafficking Information. I find Kyle to be guilty of the possession of the .45 calibre firearm on December 28, 2008, a finding I am making in relation to Count 1 of the Information, not as specifically charged under Count 9 of the Information as I find that on or about December 7, 2008, Kyle Cater did not have possession of the .45 calibre handgun he was discussing at that time with I.E. [209] This concludes my reasons on all twenty-three charges against Kyle Cater. For ease of reference, dealt with the charges relating to the firearms seized at 80 Cavendish in paragraphs 178 182. [210] These reasons have been particularly lengthy. This is due to the number of charges, my decision to go into the intercept evidence in considerable detail, and the way the case was defended. thank all counsel for their hard work and patience throughout what has been an unusually protracted case.

The accused was charged with numerous weapons-related offences, including possession and trafficking. The police had intercepted numerous ambiguous calls between the accused and others and had interpreted the coded language used as involving discussions about firearms. The defence had been unsuccessful in arguing that the inferences drawn were mere hunches and the conversations could not support a reasonable inference that the subjects under discussion were firearms. A search at his parents' residence had resulted in the seizure of several firearms but none were found in the accused's actual possession. One of the issues was whether the accused had constructive or joint possession of the firearms seized from his parents. Accused found guilty on all the weapons' possession charges and some of the trafficking charges, but not guilty of careless storage of a firearm. It was clear that the accused had much more than a passive or quiescent knowledge of the guns seized from his parents' home and there were a number of indicators that he had a measure of control over them, such as his telling his father on occasion to get rid of them, his being notified immediately when one of the firearms went missing, the way he pressed his parents to explain how that could happen and his ability on other occasions to tell his father where in the home a particular firearm was located. However, despite his knowledge of the location of some of the firearms at certain times, the court was unable to find that the accused had stored the firearms in the manner they were found when the search warrant was executed. The evidence also established that he was stashing guns at locations other than his residence and he possessed those guns for the purpose of transferring them to others. The only reasonable inference to be drawn from the intercepts was that the speakers were talking about guns and the communications revealed the commercial nature of the accused's activities. Given that the accused had asserted a privacy interest with respect to an application to exclude the evidence arising from the police search of the cell phone seized from him, he could not now deny that the phone was his.

c_2012nspc18.txt

IN THE SUPREME COURT OF NOVA SCOTIA Citation: Force Construction Ltd. v. Campbell, 2008 NSSC 310 Date: 20081024 Docket: SH 213071 Registry: Halifax Between: Force Construction Limited Plaintiff/ Defendant by Counterclaim and Tammy Campbell Defendant/ Plaintiff by Counterclaim DECISION ON COSTS Judge: The Honourable Justice Kevin Coady Heard: March 3-7, 2008 April 2, 2008, in Halifax, Nova Scotia Written Submissions: September 8, 2008 September 29, 2008 Decision: October 24, 2008 Counsel: Cory Withrow, for the plaintiff Allen Fownes, for the defendant By the Court: [1] This trial was heard over seven days in early March and early April, 2008. The court issued 71 page decision on May 16, 2008. The last paragraph of the decision stated: will accept written submissions on costs if the parties request such relief. However I will state that this is one of those cases where there is no clear winner. Also, I find that both parties contributed to the circumstances that led to this trial. [2] Notwithstanding these words Force Construction Limited indicated that they wished to make submissions on the recovery of costs, disbursements and pre-judgment interest. [3] On September 8, 2008 received submissions from Ms. Campbell. She advances the position articulated by the court, that is, “that the parties should bear their own individual costs.” Alternatively she proposes set off approach. [4] On September 29, 2008 received submissions from Force Construction Limited. They point out that they made Rule 41A formal offer to settle on May 25, 2007 in the amount of $67,800 ($60,000 plus HST). This offer was not accepted by Ms. Campbell and she recovered $64,147.85 after trial. Additionally they argue that they were more successful than Ms. Campbell and that Ms. Campbell was the party most responsible for the necessity of the trial. Force Construction Limited seeks $10,045.00 in trial costs, $850.00 in previously awarded costs, $5,092.57 in disbursements and prejudgment interest of $10,643.24 for total of $26,630.81. [5] The question is whether my after trial perception should be disturbed as result of the above submissions. [6] found both parties to be hostile and aggressive towards each other. They were stubborn and not prepared to give an inch. observed their court reactions to the evidence and their disdain for each other. It was clear to me that they could not see the strengths in their opponents case or the weaknesses in their own. have no hesitation in saying that the only way this dispute could be resolved was by way of trial. [7] There is no clear winner in this case. In fact this is one of those cases where success and failure are shared almost equally. Ms. Campbell was successful on issues relating to the septic system, the in-floor radiant heating system, the laundry room drain, the outdoor drainage system, the heating system and various other smaller items. Force Construction Limited was successful on deficiencies, aspects of the septic system, exterior wall insulation and various other smaller items. Additionally the plaintiff was fully successful on the counterclaim. [8] There were problems associated with the construction of this home where both parties contributed materially. This was clearly the case with deficiencies. Force Construction Limited were often sloppy in their construction. Ms. Campbell refused to recognize proper deficiencies that should have been resolved pursuant to the building contract. There is also an element of this joint contribution in relation to the septic system. [9] The following are factors working against Force Construction Limited’s position on costs: The septic system installation brought Ms. Campbell to tears and have described it as “circus”. It was unwise for them to continue with the peat system when the conventional system proved unworkable. Force Construction Limited did not have the skills required to effectively install the peat system. This failing has effected the property from an aesthetic and future cost perspective. The in-floor heating system turned into disaster for both parties but it was Force Construction Limited that created this problem. am satisfied that they employed unskilled workers who were unable to follow installation instructions properly. The fact that the system extended outside of exterior walls and that nails were driven through piping supports this conclusion. The plaintiffs behaviour in relation to the laundry room is egregious and went long way to create distrust on the part of Ms. Campbell. They recognized that they had “missed it” during construction. They developed “thrown together” solution that did nothing other than to dupe the owner into thinking the problem was solved. The plaintiff accepted at least $39,000.00 in cash outside of the building contract. It was the parties dark little secret until everything fell apart. This fraudulent behaviour on the part of both contributed to the parties sense of mistrust and suspicion. [14] There are number of factors attaching to Ms. Campbell that, no doubt, led to her position that she would not seek costs. They are as follows: Ms. Campbell’s role in fraudulent cash payment that may have been as much as $59,000.00 Ms. Campbell caused the breach in this contract by not paying anything for the house construction notwithstanding she took possession. Ms. Campbell’s counterclaim was entirely unsuccessful because she had no evidence to support these claims. Ms. Campbell’s failure to allow the builder the contractual right to correct the deficiencies. Ms. Campbell advanced large and complex claim surrounding the installation of the levelwall insulation without supporting evidence. [20] In light of the above referenced factors, find that both parties contributed to the length of the trial, the complexities of the issues and the attitude of the parties leading up to, and during, the trial. [21] The only new factor contained in the plaintiff’s submissions is that they made Rule 41A offer to settle on May 25, 2007 in the amount of $60,000.00. This offer was not accepted and the plaintiff was awarded $64,147.85. On the basis of this result the plaintiff feels greater entitlement to costs generally and double costs after May 25, 2007. [22] Civil Procedure Rule 41A.09(1) states: 41A.09.(1) Unless ordered otherwise, where an offer to settle was made by plaintiff at least seven (7) days before the commencement of the trial or hearing of the proceeding and was not revoked or accepted prior to the commencement of the trial or hearing, and where that plaintiff obtains judgment as favourable or more favourable than the terms of the offer to settle, that plaintiff shall be entitled to party and party costs plus taxed disbursements to the date of the service of the offer to settle and thereafter to taxed disbursements and double the party and party costs. [23] Civil Procedure Rule 41A.11 states: 41A.11. Notwithstanding the provisions of this rule, the court, in exercising its discretion as to costs, may take into account any offer to settle made in writing, the date the offer to settle was served, the terms thereof and any other relevant matters. [24] The latter allows this court to consider or not consider an offer to settle in the exercise of its discretion as to costs. It is important that courts support Rule 41A offers when assessing costs post trial. However, in this particular case I have no confidence that any offer made by either the plaintiff or the defendant, short of 100% vindication, would have resolved this case in advance of trial. [25] The intent of Rule 41A is to induce settlements and avoid trials. There should be departure from the prima facie operation of the rule only where the interests of justice clearly require it. Bell Canada v. Olympia North Developments Ltd. (1994), 1994 CanLII 239 (ON CA), 111 D.L.R. (4th) 589 (C.A.). Nonetheless the application of Rule 41A is discretionary matter and exercise my discretion, in this case, against factoring it into my overall assessment of costs. [26] Civil Procedure Rule 63.02 addresses costs generally: 63.02.(1) Notwithstanding the provisions of rule 63.03 to 63.15, the costs of any party, the amount thereof, the party by whom, or the fund or estate or portion of an estate out of which they are to be paid, are in the discretion of the court, and the court may, (a) award gross sum in lieu of, or in addition to any taxed costs; (b) allow percentage of the taxed costs, or allow taxed costs from or up to specific stage of proceeding; [E.62/9(4)] (c) direct whether or not any costs are to be set off. (2) The court in exercising its discretion as to costs may take into account, (a) any payment into court and the amount of the payment; (b) any offer of contribution. [27] The discretion referred to in this rule includes the decision not to award costs in certain circumstances. [28] In Orkin’s The Law of Costs (2nd ed) the exercise of discretion is discussed at page 2-11: The discretion is judicial one to be exercised according to the circumstances of each particular case and based upon material before the court. The discretion is that of the trial judge and its exercise is not to be referred or delegated; nor can it be fettered by any consent of the parties, even though great weight should be given to such consent. The principles that should be observed in exercising discretion as to costs have been defined as follows: First, the principle of indemnity is paramount consideration. Secondly, the courts must approach the matter on the basis that encourages settlement of all actions from the outset. Thirdly, the court must discourage actions and defences which are frivolous. Fourthly, the court must discourage unnecessary steps in the litigation. The view has been expressed that costs should not be imposed as matter of arbitrary or capricious practice by courts, but there should be consistency of pattern. [29] The author goes on to state that “a party’s conduct both before and during the litigation process as well as the degrees of success achieved are relevant to the exercise of the courts discretion as to costs”. have concluded that both parties conduct led to the need for this trial. have also found that success was mixed and it would be impossible to conclude that one was more successful that the other. [30] I exercise my discretion not to award costs and the parties will bear their own costs. This includes disbursements and pre judgment interest, something both parties had to endure. This was case with high settlement prospects but the parties were not really open to this kind of resolution.

Despite the court's finding of no clear winner and that both parties had contributed to the circumstances that led to the trial, the plaintiff sought costs on the basis that the defendant had refused its offer to settle. Each party will bear their own costs; the court had no confidence that any offer made by either party, short of 100 per cent vindication, could have resolved the case in advance of trial.

2008nssc310.txt

2005 SKQB 166 Q.B.A. A.D. 2004 No. J.C.B. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF BATTLEFORD BETWEEN: CAMERON ELIOT CARR, APPELLANT (APPLICANT) and HER MAJESTY THE QUEEN, RESPONDENT Ronald P. Piché for the appellant (applicant) James T.V. Taylor for the respondent JUDGMENT FOLEY J. April 7, 2005 [1] On March 16, 2003, the appellant was charged, firstly, with operating a motor vehicle while his ability was impaired by alcohol under ss. 255(1) and 253(a) of the Criminal Code of Canada and, secondly, with having consumed alcohol in such a quantity that his blood alcohol level exceeded .08 contrary to ss. 253(b) and 255(1) of the Criminal Code. In rendering his decision, the trial judge stated at page 104: All of the evidence is that he was the complete focus of Constable Coe’s attention and can’t see that there is any unexplained delay. It’s very much the norm here, time wise, and it seems to me that, that that particular defence on the, on the .08 charge is not there. certainly think the impaired driving charge is stronger and although believe would as well convict him on the .08, but certainly find him guilty of the impaired and am entering judicial stay on the, on the .08 accordingly. [Emphasis added.] [2] The appellant’s notice of appeal filed May 5, 2004, references only the impaired driving count, but an amended notice of appeal of December 7, 2004, adds an appeal against purported conviction on the .08 count. An initial question therefore is whether the trial judge’s decision quoted above reflects a conviction on both counts or a conviction only for impaired driving. In my opinion, guilt was only determined with respect to the impaired driving charge. The entry of a judicial stay on the .08 charge was not used by the trial judge to avoid a multiple conviction issue. [3] The use of judicial stay to give effect to the rule against multiple convictions was explained by Quigley in Procedure in Canadian Criminal Law (Scarborough: Carswell, 1997) at page 481 as: The rationale behind the rule against multiple convictions is to prevent the vexatiousness and additional punishment that would otherwise result. The mechanism for doing so is the entering of judicial stay on the charge that is less serious when convicting of the more serious. However, the rule may not be used as device for avoiding conviction and punishment for more serious offence by pleading guilty to or being convicted of less serious offence. Moreover, appeal rights in respect of the stayed charge must somehow be preserved. and at page 482: Following that, if the accused appeals the conviction on the more serious charge and is successful, the appeal court may also rule on whether the conditional stay is dissolved. If so, the matter may be remitted to the trial judge to determine whether conviction should be entered on that charge. If the accused does not appeal the conviction on the more serious charge or is unsuccessful in an appeal, the conditional stay becomes permanent and equivalent to an acquittal for both appeal purposes and autrefois acquit purposes. [4] Here, the trial judge entered judicial stay on the .08 count without determining either guilt or innocence. Consequently, the only de jure appeal before this Court is that brought against the impaired driving conviction. [5] With respect to that conviction, the appellant seeks to have it set aside and either an acquittal entered or new trial ordered by virtue of alleged: (a) reliance by the trial judge on the readings contained in Certificate of Analysis; and (b) consideration by the trial judge of evidence arising subsequent to the breath demand. The Evidence at Trial [6] Late on the night in question, an off‑duty RCMP constable observed vehicle being driven erratically and dangerously on the highway. He reported his observations by radio to another RCMP unit whereupon that unit intercepted the accused’s vehicle near the town of Paradise Hill. It was observed turning into the town, entering into and exiting from the lot of car dealership for no apparent reason and then making turn back onto the highway. [7] Constable Coe testified that he followed the vehicle for four or five kilometres and, after seeing it being driven onto the shoulder of the road then back to the centre of the highway, he initiated stop. When he asked the accused driver whether he had been drinking, the accused conceded that he had. The constable testified: there was an alcohol odour inside the vehicle; the driver did not make much sense as to where he had been and where he was going; when requested for his driver’s license and registration, the driver could not produce either document and was “fumbling around the inside of the cab of the vehicle trying to locate the wallet”; when the driver exited the vehicle, he was “kind of stumbling and dropped the keys to the ground”; that “as the driver was little unsteady on his feet when he exited the vehicle, ...I arrested him, advised him he was under arrest for impaired operation of motor vehicle....” [13] The accused testified that he had consumed several beer that evening at hockey game and, in crossing the parking lot to his car, had fallen on ice and badly injured his leg. He had considerable difficulty walking and driving while he sought medical aid that night. [14] The trial judge observed: “Certainly, it sounds like the ... ankle was broke....”; “Clearly, the pain is ... mounting in his foot and that is causing him some difficulty, presumably difficulty in rationalizing how he should ... get to medical attention.”; and concluded: He drank six to eight beer after the hockey game, the hockey game ends at 10:00, 10:15 Alberta time. When he is stopped it’s 1:20 Saskatchewan time. He has had quite few drinks in short period of time. However, when he testifies he doesn’t think that that would have had any impact on his driving. The reading shows he is more than twice the legal limit, but presumably very, very seasoned drinker, and would not be impaired at the, at these high readings with that much alcohol. At least that is the view, and he says that all of his driving behaviour is attributable to his hurt ankle and was not as result of any impairment from the considerable alcohol that he had, he had drank. Certainly, stumbling and dropping his keys could be, as well, function of hurt ankle, and not function of, of his of his hurt foot.... Clearly his mind was not working properly, that is endangering both himself and other users of the road.... Certainly, agree that some of his erraticness may well have been combination of alcohol and very, very hurting ankle, but certainly some of the driving was result of his impairment, and in my view the Crown has made out that case. [17] In an impaired driving charge under s. 253(a), it is the quality of the driver rather than that driver’s quantity of consumption which is the focus of the inquiry. Volume of consumption falls within the provisions of s. 253(b). In this case, the evidence as to the accused’s pattern of driving, his unsteadiness and fumbling, coupled with his admissions and the odour of alcohol are matters which, if accepted by properly instructed finder of facts, could have resulted in conviction. [18] In this case, the trial judge concluded however that the erratic driving pattern “...may well have been combination of alcohol and very, very hurting ankle, but certainly some of the driving was result of his impairment....” The only foundation for the conclusion of impairment articulated in his rather rambling reasons for judgment are the references to beer consumption some hours earlier and “[t]he reading shows he is more than twice the legal limit....” The trial judge accepted that the accused’s unsteadiness could have been function of the hurt ankle. Consequently, the trial judge relied at least in part on the certificate readings for his conclusion of impairment. [19] In R. v. Randell (1994), 1994 CanLII 5069 (SK QB), 118 Sask. R. 48 at para. 21 (Q.B.), Gerein J. (as he was then) stated: ... Absent expert testimony interpreting particular reading, court cannot use the reading to come to conclusion as to what quantity of alcohol was consumed or what effect, vis‑à‑vis impairment, such consumption of alcohol had on the particular accused. In this case the trial judge, on the basis of the breathalyzer readings, concluded that the accused had consumed significant amount of alcohol. To come to this conclusion, without any interpretive testimony, was to commit an error in law. [Citations omitted.] [20] These observations are applicable in this case and there was an error of law. What the verdict would have been absent the trial judge’s consideration of the certificate is by no means clear. Consequently, I am obliged to resolve the matter in favour of the accused, and the conviction is set aside. [21] As noted above, however, I am of the opinion that the remaining admissible evidence could have resulted in a like verdict so rather than direct an acquittal, it is appropriate to order a new trial. [22] Accordingly, the appeal is allowed and the conviction is set aside with an order that a new trial be held before a judge of the Provincial Court for Saskatchewan. [23] In the event of new trial it is anticipated that the trial judge will have regard to the useful decision rendered by Judge Kolenick, Provincial Court judge, in R. v. Allin, 2003 SKPC 58 (CanLII), 233 Sask. R. 73, where in particular at paragraph 44 he notes of that case: In any event, the Crown is alleging the existence of signs of impairment and the accused has offered an innocent explanation for them. In those circumstances, the court should consider whether the evidence is sufficient to prove beyond reasonable doubt that alcohol consumption was contributing factor to the alleged signs of impairment.

The accused was charged with impaired driving contrary to s. 255(1) and s. 253(a) of the Criminal Code and with driving while over .08 contrary to s. 253(b) and s. 255(1) of the Criminal Code. The accused was convicted of impaired driving. An initial question is whether the trial judge's decision reflected a conviction on both counts or a conviction only for the impaired driving charge. HELD: The appeal is allowed and the conviction is set aside with an order that a new trial be held. 1) The court found a conviction was not entered on the .08 charge and the judicial stay was not used by the trial judge to avoid a multiplicity of convictions. 2) There was an error in law in that the trial judge relied at least in part on the certificate readings for his conclusion of impairment. What the verdict would have been, absent the trial judge's consideration of the certificate, is not clear. The matter must be resolved in favour of the accused. As the court was of the opinion that the remaining admissible evidence could have resulted in a like verdict, a new trial is ordered.

c_2005skqb166.txt

nan 2003 SKQB 286 DIV A.D. 1999 No. 212 J.C.S. IN THE QUEEN’S BENCH (FAMILY LAW DIVISION) JUDICIAL CENTRE OF SASKATOON BETWEEN: SHELLY MARIE HARDER and ALLAN ROBERT HARDER RESPONDENT E.A. Connick for the petitioner Allan Robert Harder on his own behalf FIAT RYAN-FROSLIE J. June 19, 2003 [1] Pursuant to s. 17 of Divorce Act, R.S.C. 1985, c. (2nd Supp.), the applicant, Allan Harder, seeks to vary child support order made May 17, 2002. [2] Mr. Harder argued that variation of the order is warranted because his income has decreased as result of his being laid off his employment, that the parties’ oldest child, Jasmine, is no longer child within the meaning of the Divorce Act and that Jasmine’s s. expense for riding lessons has not been incurred for more than year. Shelly Harder opposes the application arguing Mr. Harder’s lay-off is only temporary, that Jasmine continues to be child of the marriage and that Jasmine will be resuming riding lessons at the end of May, 2003. Ms. Harder also asked this Court to increase Mr. Harder’s contribution for her son’s hockey, golf and baseball expenses. [3] The issues are as follows: 1. Has there been a change of circumstance since May 17, 2002 which would warrant variation of the support order? 2. Is Jasmine a child of the marriage within the meaning of the Divorce Act? 3. Does Mr. Harder have an obligation to contribute to Jasmine’s riding lessons? 4. Mr. Harder’s income for child support purposes. 5. Should Sloane’s s. 7 expenses (hockey, golf and baseball) be increased? [4] The facts are not in dispute. [5] The parties were married on June 14, 1980 and separated in 1998. They have two children, namely: Jasmine Marie Harder, born November 10, 1984 (age 18) and Sloane Allan Harder, born April 8, 1986 (age 17). [6] On May 17, 2002, Justice Milliken granted consent judgment pursuant to the Divorce Act. In that judgment, Mr. Harder’s income for child support purposes was set at $39,219 and Ms. Harder’s income for child support purposes was set at $23,945. Mr. Harder was ordered to pay child support of $534 per month for Jasmine and Sloane commencing September 1, 2001 plus $70 per month for Jasmine’s riding lessons and $60 per month for Sloane’s hockey. [7] At the time the judgment was granted, both children were under the age of 18 and in full-time attendance at school. Jasmine turned 18 on November 10, 2002. She graduated from Grade 12 in January, 2003 and on February 10, 2003 started full-time employment with Mitchell’s Gourmet Foods Inc. earning $8.50 per hour, 37 hours per week. Jasmine was laid off this employment for two weeks in March, 2003. Other than this two-week lay-off, she has been employed full time. [8] The evidence indicates Jasmine intends to take 13-month executive administrator course commencing in September, 2003. Her tuition and books for that course are estimated at $7,135 and $1,300, respectively. Jasmine has applied for student loan. She has savings of $600. There is no indication what amount Jasmine will receive from the loan or what other resources may be available to her for funding her post-secondary education. Jasmine resides with her mother, rent free. [9] In May, 2002, in support of the application for judgment, Ms. Harder filed material indicating Jasmine was taking riding lessons. Ms. Harder sought contribution from Mr. Harder for the cost of those lessons in the amount of $70 per month. In fact, Jasmine’s horse had been injured in April, 2002 and she was not taking riding lessons at the time the judgment was granted, nor has she taken riding lessons since April, 2002. Ms. Harder’s affidavit of May 27, 2003 attests that Jasmine will resume her riding lessons the week of May 27, 2003. [10] The parties’ son, Sloane, is 17 and continues to be in full-time attendance at school. He is involved in hockey, golf and baseball. Ms. Harder’s financial statement sworn May 27, 2003 shows the cost for these extracurricular activities as $1,901.24 per year. This is the same amount, for the same activities, as set out in her financial statement of July 20, 2001 and filed in support of the original application for divorce. [11] Mr. Harder is sheet metal worker. At the time of Justice Milliken’s judgment, he was employed at Pow City Mechanical earning $39,219 gross per year. Ms. Harder was employed by the Saskatoon Health District Board earning $23,945 per annum. [12] Mr. Harder was laid off his employment prior to the filing of his application for variation. He receives employment insurance of $414 per week before deductions ($21,528 per annum). Following the filing of his application for variation, Mr. Harder was employed at Estevan, Saskatchewan for brief period of time. [13] Mr. Harder earned $39,259 in 2002 according to his 2002 Notice of Assessment from Canada Customs and Revenue Agency. He paid union dues of $1,843 leaving net income for child support purposes of $37,416. [14] Ms. Harder is still employed with the Saskatoon Health District. She earned $30,285 in 2002 according to her 2002 Notice of Assessment from Canada Customs and Revenue Agency. According to her pay stub, Ms. Harder pays union dues of $14.15 every two weeks or $367.90 per year leaving net income for child support purposes of $29,917. 1. Has there been change of circumstance since May 17, 2002 which would warrant variation of the support order? [15] Section 17(4) of the Divorce Act provides that before court makes variation order in respect of child support order, the Court must satisfy itself that change of circumstances as provided for in the Federal Child Support Guidelines [Divorce Act Regulations, SOR/97-175] has occurred since the making of that order or the last application for variation. [16] Section 14 of the Guidelines sets out that “...any change in circumstances that would result in different child support order or any provision thereof...” is circumstance that will give rise to variation. [17] In support of his application, Mr. Harder claims three changes in circumstances, namely: 1. that Jasmine is no longer child within the meaning of the Divorce Act; 2. that Jasmine has not been taking riding lessons for more than year; and 3. that his income has decreased as result of his unemployment. If any of these circumstances are established, it would come within the meaning of s. 14 of the Guidelines and would warrant variation of the current order. 2. Is Jasmine child of the marriage within the meaning of the Divorce Act? [18] For the purpose of the Divorce Act, “child of the marriage” is defined in s. as “...a child of two spouses or former spouses who, at the material time is ... the age of majority or over and under their charge but unable by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life”. [19] Ms. Harder argues that Jasmine is still child of the marriage because she is living with Ms. Harder, she intends to take post-secondary education in September, 2003 and she requires financial support in the interim so that she can save money to go to school and pay off debt to SGI. That debt is the result of an automobile accident Jasmine was involved in with an unregistered vehicle. As of May 27, 2003 Jasmine owes SGI $721. She is paying $100 per month towards this debt. [20] The definition of “child of the marriage” has been considered in numerous cases. The law is well-settled that the pursuit of post-secondary education may be sufficient reason for an adult child’s inability to withdraw from their parents’ charge or obtain the necessaries of life. That inability however must be proved. The burden of proof lies on the party seeking support, in this case Ms. Harder. See: Duncan v. Duncan (1989), 1989 CanLII 4502 (SK QB), 74 Sask. R. 100 (Q.B.); Hildebrandt v. Rossmo, [1997] S.J. No. 630 (Q.B.); and Whitton v. Whitton (1989), 21 R.F.L. (3d) 261 (Ont. C.A.). [21] The Saskatchewan Court of Appeal in Zaba v. Bradley (1996), 1996 CanLII 4930 (SK CA), 137 Sask. R. 295 (C.A.) set out number of factors court should consider in determining whether an adult child continues to be “child of the marriage” by reason of the pursuit of post-secondary education. The British Columbia Supreme Court in Farden v. Farden (1993), 1993 CanLII 2570 (BC SC), 48 R.F.L. (3d) 60 (B.C. S.C.) and the Saskatchewan Court of Queen’s Bench in MacDonald v. Rasmussen (2000), 2000 SKQB 494 (CanLII), 198 Sask. R. (Q.B.) have suggested additional factors for consideration. The factors enunciated in these three cases may be summarized as follows: 1. whether the child is in fact enrolled in course of studies and whether that enrollment is full time or part time; 2. the age of the child; 3. the child’s past academic performance; 4. whether the child has reasonable career plans; 5. whether the child is demonstrating success in their chosen course of studies; 6. whether the child is eligible for student loans or other financial assistance; 7. the ability of the child to contribute to his or her own support through part-time employment; 8. parental plans for the child’s education, particularly those made during cohabitation; 9. whether or not the child has unilaterally terminated his or her relationship with the parent from whom child support is sought; 10. whether the child could reasonably have expected support from the parents if the marriage had not broken down. [22] In this case Jasmine is not enrolled in school, nor is she taking any classes, though her “plan” is to do so in the fall of 2003. It is undisputed that Jasmine is currently employed full time earning $8.50 per hour. She has had this employment since February 10, 2003, although she was laid off for two weeks in March. There is no evidence as to the reasonableness of Jasmine’s plans or her ability to contribute to the cost of any post-secondary education she decides to pursue. The factors set out in Zaba, Farden and MacDonald, supra, have not been covered by the material. Based on the evidence, cannot find that Jasmine is “child of the marriage” within the meaning of the Divorce Act. She is currently employed full time and while her income is low, it would be sufficient to provide her with the necessaries of life. Saving money for school and paying off debts does not constitute an “other cause” as contemplated in the Divorce Act definition of “child of the marriage”. Choosing not to withdraw from her mother’s care is not the same as being unable to withdraw from that care. [23] While an adult child may require reasonable length of time to become financially independent after finishing school or attaining the age of majority, that time certainly arrived in this case by the end of March, 2003. By that time Jasmine had obtained full-time employment and had received at least full month’s wages. This case is distinguishable on its facts from the case of Bain v. Bain (1994), R.F.L. (4th) 451 (Man. Q.B.) where the parties had reached an agreement to continue support for their daughter. It is also distinguishable on its facts from Mitchell v. Mitchell (1992), 1992 CanLII 8039 (SK QB), 41 R.F.L. (3d) 443 (Sask. Q.B.) where the child was “forced” by her father to remain out of school until her car debt was paid. Moreover, in Mitchell, the child in question was in full-time attendance at post-secondary institution, circumstance that does not exist in this case. I find that Jasmine ceased to be a child of the marriage within the meaning of the Divorce Act effective March 31, 2003. [24] Should Jasmine follow through with her plan and actually commence post-secondary education she may requalify as “child of the marriage”. See: Horvath v. Horvath, 2000 MBCA 93 (CanLII); (2000), 150 Man. (2d) (C.A.); Stocchero v. Stocchero (1997), 1997 ABCA 196 (CanLII), 29 R.F.L. (4th) 223 (Alta. C.A.); and Olsen v. Olsen (1997), 1997 CanLII 11249 (SK QB), 159 Sask. R. 67 (Q.B.). In that event, application may be made to seek support from Mr. Harder. In bringing such an application, Ms. Harder should keep in mind the considerations listed herein and provide the necessary evidence to support Jasmine’s claim. 3. Does Mr. Harder have an obligation to contribute to Jasmine’s riding lessons? [25] As Jasmine is no longer a child of the marriage, Mr. Harder has no obligation to contribute towards the costs of her riding lessons pursuant to s. 7(f) of the Guidelines. [26] It is noted that no expense has been incurred for Jasmine’s riding lessons since May, 2002, the very month in which the judgment being varied was rendered. The undisputed evidence is that Jasmine’s last riding lesson occurred in April, 2002. The fact Ms. Harder has received money from Mr. Harder for this expense when it was not actually incurred is reprehensible. Parents who receive contribution for s. expenses have an obligation to terminate those payments when the s. expense is no longer incurred. Ms. Harder’s actions have resulted in her receiving $70 per month from Mr. Harder for riding lessons which never took place. She has received $980 ($70 per month for 14 months) that she is not entitled to. Mr. Harder has indicated he does not want that money repaid to him. It is only the generosity of Mr. Harder that keeps this Court from making reimbursement order. Mr. Harder’s obligation to contribute to Jasmine’s riding lessons is terminated effective March 31, 2003. 4. Mr. Harder’s income for child support purposes. [27] Mr. Harder argues his income has decreased since the May, 2002 order because he was laid off his employment. The exact date Mr. Harder became unemployed is not known. In paragraph of his affidavit sworn April 23, 2003 Mr. Harder attests as follows: That at the time of the filing of this variation I, Allan Robert Harder, have been unemployed for over two weeks with vague knowledge of when may be hired in my trade as sheet metal worker. My present income is $414.00 per wk. from unemployment insurance before deductions. It is clear that while Mr. Harder is currently unemployed, he has “vague knowledge” of when he may be rehired. That knowledge was not shared with this Court. [28] copy of Mr. Harder’s 2002 income tax return was not filed in support of this application. review of the financial information filed prior to Justice Milliken’s judgment of May, 2002 indicates that Mr. Harder received employment insurance benefits in 1999 and 2000. There are no documents filed with this Court to substantiate whether or not employment insurance was received by him either in 2001 or 2002. Mr. Harder’s employer has at all relevant times been Pow City Mechanical. [29] The burden of proving change in income which would constitute change in circumstance lies with Mr. Harder. As the Supreme Court of Canada stated in Willick v. Willick, 1994 CanLII 28 (SCC), [1994] S.C.R. 670, the change must be of such magnitude that if the court had known of the change of circumstance at the time the original order was granted, it is likely the order would have been made in different terms. Based on the evidence, Mr. Harder has not met this burden. His affidavit material indicates he has some knowledge of when he will be rehired. The financial information indicates he has received employment insurance in the past. In order for change in income to warrant change in child support, that change must be significant and long-lasting. Temporary unemployment will not qualify as such change especially if it is regular circumstance of the payor’s employment. The total income potential of the payor must be examined in order to determine whether reduction has in fact occurred. Such reduction cannot be found in this case on the evidence presented. This decision is made without prejudice to Mr. Harder to reapply to this Court should his unemployment continue for an extended period. [30] find that Mr. Harder’s income for child support purposes is $37,416 being the income shown on his 2002 Notice of Assessment less his union dues. find Ms. Harder’s income for child support purposes to be $29,917 being the income shown on her 2002 Notice of Assessment less her estimated union dues. It is hereby ordered that Mr. Harder shall pay to Ms. Harder for the support of their son, Sloane Allan Harder, born April 8, 1986, the sum of $308 per month commencing April 1, 2003 and continuing on the first day of each and every month thereafter so long as Sloane remains a child within the meaning of the Divorce Act. 5. Should Sloane’s s. expenses (hockey, golf and baseball) be increased? [31] Ms. Harder claims an increase in Mr. Harder’s contribution to their son’s extracurricular activities. In argument she admitted these activities are the same activities that Sloane was engaged in at the time of Justice Milliken’s judgment in May, 2002 and that the cost of those activities is identical to the cost claimed at that time. The judgment provides that Mr. Harder contribute only to Sloane’s hockey expenses. There is no change in circumstance that would warrant expanding that judgment to include costs for Sloane’s golf or baseball expenses. These activities and their costs were known and considered at the time of the May, 2002 judgment. [32] Ms. Harder argues that in calculating Mr. Harder’s share of Sloane’s hockey expenses, the judgment contemplated that the parties would split bingo proceeds which would help defray some of the hockey costs. She attests that Mr. Harder did not do this. She alleges he received $150 from bingos which were used to defray his personal expenses in attending Sloane’s tournaments as opposed to reducing Sloane’s hockey expenditures. Exhibit “A” attached to Ms. Harder’s affidavit of May 27, 2003 indicates that Sloane’s account had surplus of $272.85 in it and that Mr. Harder had earned only $50 from bingo which was credited to his personal account. The judgment refers only to the splitting of bingos. The balance of the money earned by Mr. Harder related to the washing of uniforms and does not fall within the terms of the judgment. The evidence does not establish that the bingos were not split. Even if this Court accepts that Mr. Harder earned $50 from bingos which should have been attributed to Sloane’s expenses, there is no evidence of how failure to do so affected the sharing of costs between Ms. Harder and Mr. Harder. There is no evidence to support Ms. Harder’s claim for an increase in contribution for Sloane’s extracurricular activities. [33] Ms. Harder’s income has increased since the May 17, 2002 judgment from $23,945 per annum to $29,917 per annum. Ms. Harder attests that she will be undergoing surgery and will be off work for period of time. She does not provide any information as to the length of time she will be off work or how that may affect her projected income for 2003. Mr. Harder’s income for child support purposes is $37,416 per annum. In light of the parties’ current incomes, Mr. Harder’s proportionate share of Sloane’s s. 7(f) hockey expenses should be reduced to 55.57%. [34] Neither the May 17, 2002 judgment nor the material filed with this Court sets out the amount of Sloane’s hockey expense. That amount, however, can be calculated based on the fact that Mr. Harder’s 62% of those expenses totalled $60 per month. Based on that, the annual hockey expense is $1,161.29. Mr. Harder’s 55.57% of that amount would be $54 per month. [35] Mr. Harder shall pay to Ms. Harder for Sloane’s s. 7(f) hockey expenses the sum of $54 commencing June 1, 2003 and continuing on the first day of each and every month thereafter so long as that expense is incurred by Sloane. [36] Pursuant to rule 608(2) of The Queen’s Bench Rules of Court there is presumption that successful party is entitled to the costs of family law proceeding or step in family law proceeding. In this case Mr. Harder was successful in his application. Normally, self-represented parties are not awarded costs. However, costs are warranted in this situation because of Ms. Harder’s refusal to terminate Mr. Harder’s s. contribution for Jasmine’s riding lessons even though that expense was not being incurred. The unreasonableness of her position warrants an assessment of costs. Costs provide some compensation to party for legal expenses as well as disbursements incurred for the application. order that Ms. Harder pay to Mr. Harder as costs of the within application the sum of $250 being Mr. Harder’s estimated out-of-pocket expenses. These costs are payable forthwith. See: Fry v. Hendrickson (1998), 1998 CanLII 13542 (SK QB), 166 Sask. R. 305 (Q.B.). [37] There shall be an order varying Justice Milliken’s judgment of May 17, 2002 with respect to child support and s. expenses as follows: 1. That Jasmine ceased to be a child of the marriage within the meaning of the Divorce Act effective March 31, 2003. Mr. Harder’s obligation to provide ongoing support to Jasmine and his contribution for s. 7 expenses relating to her riding lessons shall terminate as of that date. 2. find that Mr. Harder’s income for child support purposes is $37,416 per annum and Ms. Harder’s income for child support purposes is $29,917 per annum. Mr. Harder shall pay to Ms. Harder for the support of Sloane Allan Harder, born April 8, 1986, the sum of $308 per month commencing April 1, 2003 and continuing on the first day of each and every month thereafter so long as Sloane remains a child within the meaning of the Divorce Act. 3. Ms. Harder’s application to increase Mr. Harder’s contribution for Sloane’s extracurricular activities is dismissed. 4. I find that Sloane’s current hockey expense is approximately $1,161.29 per annum. Mr. Harder shall pay to Ms. Harder his proportionate share of that expense being 55.57% or $54 per month commencing June 1, 2003 and continuing on the first day of each and every month thereafter so long as that expense is incurred by Sloane. 5. Ms. Harder shall pay to Mr. Harder costs of the within application in the sum of $250, payable forthwith.

FIAT. At issue was whether there a change of circumstances, which would warrant a variation of the 2002 child support order; whether the 18 year old continued to be a child within the meaning of the Divorce Act; does the father have an obligation to contribute to his daughter's riding lessons; the father's income for child support purposes; should the 17 year old son's s.7 expenses be increased; costs. HELD: 1)The daughter had ceased to be a child of the marriage within the meaning of the Divorce Act and the father's obligation to provide on-going support and his contribution for s.7 expenses relating to her riding lesson terminated in March 2003. 2)The father shall pay $308 per month for support of his son commencing April 1, 2003 and every month thereafter so long as he remains a child within the meaning of the Divorce Act. 3)The mother's application to increase the father's contribution for the son's extracurricular activities was dismissed. The father shall pay $54 per month for hockey expenses commencing June 2003 and every month thereafter. 4)The mother was to forthwith pay costs of the application fixed at $250.

e_2003skqb286.txt

nan QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2017 SKQB 265 Date: 2017 09 11 Docket: Crim 32 of 2016 Judicial Centre: Melfort BETWEEN: HER MAJESTY THE QUEEN and NORMAND MARC JOSEPH LAVOIE Counsel: Tyla R. Olenchuk for the Crown Michael D. Nolin for the accused SENTENCING DECISION DOVELL J. September 11, 2017 A. Introduction [1] On May 3, 2015, shortly after 4:00 p.m., tragedy occurred within construction zone on Highway No. in the Province of Saskatchewan approximately eight kilometres south of Spalding, Saskatchewan. Three innocent teenagers in small Cobalt vehicle lawfully stopped at the side of the highway under construction were senselessly killed when their vehicle was struck in the rear by semi‑truck driven by Normand Lavoie. young flag person standing near their vehicle was severely injured. [2] The function of the Court at this time is to sentence Normand Lavoie. That sentence must be just and fair and be consistent with previous judicial decisions in this jurisdiction, if at all possible. The Court is well aware that no sentence will relieve the families of the pain they have endured and are enduring and may well continue to endure for the rest of their lives or the deep remorse Normand Lavoie has as “the boys faces are tattooed in his brain”. There is no remedy for the total destruction caused as result of Normand Lavoie’s inattention for whatever reason as he drove his huge heavy semi‑trailer through the construction zone on that fateful day over two years ago. There is really nothing that the Court can do to remedy what has happened. It cannot be remedied. The only thing the Court can do is to sentence Normand Lavoie in accordance with the objectives and principles of sentencing as contained within the Criminal Code, RSC 1985, C‑46. [3] To the families of Carter, Kristian and Justin, the Court wants to express its sincere heartfelt condolences. The Court is very much aware of the pain you have and are experiencing as expressed within the victim impact statements read in court. That pain is palpable, but as we all know the one thing all of you really want, being the return of Carter, Kristian and Justin, just cannot happen. B. The Charges [4] On May 30, 2017, Normand Marc Joseph Lavoie pled guilty to the following offences: Count #1: On or about the 3rd day of May A.D. 2015, at the district of Spalding in the Province of Saskatchewan, did, operate a motor vehicle in a manner that was dangerous to the public and thereby caused the death of Justin Gaja, contrary to Section 249(4) of the Criminal Code of Canada. Count #2: On or about the 3rd day of May A.D. 2015, at the district of Spalding in the Province of Saskatchewan, did, operate a motor vehicle in a manner that was dangerous to the public and thereby caused the death of Carter Stevenson, contrary to Section 249(4) of the Criminal Code of Canada. Count #3: On or about the 3rd day of May A.D. 2015, at the district of Spalding in the Province of Saskatchewan, did, operate a motor vehicle in a manner that was dangerous to the public and thereby caused the death of Kristian Skalicky, contrary to Section 249(4) of the Criminal Code of Canada. Count #4: On or about the 3rd day of May A.D. 2015, at the district of Spalding in the Province of Saskatchewan, did, operate a motor vehicle in a manner that was dangerous to the public and thereby caused bodily harm to Samuel Fetherston, contrary to Section 249(3) of the Criminal Code of Canada. C. Agreed Statement of Facts [5] Counsel for the Crown and defence filed an Agreed Statement of Facts which provided: 1. On May 3, 2015, Carter Stevenson (hereafter referred to as “Carter”) age 17, Kristian Skalicky (hereafter referred to as “Kristian”) age 15, and Justin Gaja (hereafter referred to as “Justin”) age 14, were on their way home from football camp. 2. On Highway 6, approximately km south of Spalding, SK, they came upon construction zone. Their vehicle, white Chevrolet Cobalt (hereafter referred to as “the Cobalt”), was stopped behind Ram 1500 half ton which was towing trailer with quad on it (hereafter referred to as “the Ram 1500”). 3. Both vehicles were stopped by flag person Samuel Fetherston (hereafter referred to as “Sam”). He had started work as flag person on May 1, 2015 and was wearing bright green construction‑style clothing with hard hat and stop sign. pilot vehicle operated by MacKenzie Cairns was leading traffic through the work area and had just finished bringing group of southbound vehicles through. 4. The construction zone had started 1.6 km south of the scene, with the following signage at 100m intervals (See photos of signage): a. Electronic sign board with the message: Asphalt crack sealing next 10 km/6 am to pm b. Orange “Workers Present” sign c. White “No Passing” sign d. Orange “Be Prepared to Stop” sign (this sign was located on its side after the collision and it is undetermined as to when it was knocked over) e. White “Maximum 60 km/h Fines Triple” sign f. Orange “Flag Person” sign 5. The accused, Normand Lavoie, was operating semi unit, travelling northbound. He was hauling foam insulation panels. He entered the construction zone at normal highway speeds and did not reduce his speed according to the signage. 6. When the semi unit impacted with the Cobalt, it was travelling at minimum speed of 84 km/h. 7. The semi unit impacted the rear of the Cobalt, which pushed it into the back of the Ram 1500. The Ram 1500 was thus pushed across the center of the roadway and impacted the pilot vehicle on the southbound shoulder (see [photo of] final rest positions). During this, the Ram 1500 struck Sam and he was thrown into the northbound ditch. 8. Carter, Kristian, and Justin were killed on impact. The Cobalt was crushed (see photo of Cobalt). Sam sustained broken left collarbone, broken left clavicle and broken left humerus. He lost the use of his spleen and continues to experience short‑term and long‑term memory loss. 9. At 1622 hours, Melfort RCMP Officers were advised of the collision. When members arrived, STARS ambulance was treating Sam and he was airlifted to Saskatoon. 10. The accused had been told by eyewitnesses to stay in his vehicle after the collision. He was later transported to Melfort Hospital. His dog, which was in the cab, was taken to Melfort veterinary clinic. 11. RCMP seized the accused’s log books, which were analyzed by the Highway Traffic Board. There were no issues noted in relation to hours of work or distances covered to indicate fatigue. 12. Cpl. Doug Green, forensic accident reconstructionist, had attended the scene of the collision and determined that the cause of the collision was the actions of the accused. He failed to recognize the stopped vehicles in the active construction zone and to allow sufficient distance to bring his vehicle to safe stop before colliding with the rear of the Cobalt. 13. Normand Lavoie was arrested and returned to Melfort. He provided warned statement to Cst. Shmyr on August 27, 2015. 14. During that statement, when asked what was happening prior to the collision, he stated that “with it being Saskatchewan, it’s flat and kind of just go into auto pilot”, which he indicated would have impacted his reaction time. He could not recall entering the construction zone or seeing the construction signs and assumed he would have been travelling at 100 km/h. 15. When asked if he had been distracted by his dog in the cab, the accused stated “all remember is heard... like was in just, you know, auto pilot cruising and heard something ... don’t want to say snapped me out of it but you know what mean? And then looked back quickly [at the dog] and then turned back and there’s the back end of the car.” 16. The accused attended for sleep analysis after the collision and was diagnosed with mild apnea. During the analysis, he stated in relation to the collision, he could not recall falling asleep. In the diagnosis, the doctor stated that it was not clear if the collision was related to hypersomnolence, but that the accused did admit having felt drowsy in passive situations. 17. During his warned statement, after disclosing the mild apnea, Cst. Shmyr asked “were you sleeping or were you tired?” and the accused replied “No”. He clarified that to him, auto pilot means “you’re keeping the thing on the road” and that “you’re just kind of in lala land, basically I’m there behind the wheel but I’m not.” When asked second time if he was tired or sleeping, he told Cst. Shmyr “I’m definitely tired but wasn’t sleeping. didn’t fall asleep behind the wheel.” D. Additional Facts Admitted by Counsel [6] In addition to the facts as contained within the Agreed Statement of Facts and/or by way of clarification, counsel agreed that this tragic incident occurred shortly after 4:00 p.m. on May 3, 2015. [7] The six signs referred to within paragraph of the Agreed Statement of Facts, and attached in the photographs, were all within the first 600 metres of the construction zone, 100 metres apart in the order in which they are depicted in the pictures. In other words, the electronic signboard with the message “Asphalt crack sealing next 10 km/6 am to pm” was the first sign within the construction zone and the remaining five signs, 100 metres apart, were within the first 600 metres of the construction zone before the location where the collision occurred. [8] The Court has no evidence as to what activity there was, if any, within the construction zone either on the highway or adjacent to the highway other than those six signs within the first 600 metres of the construction zone to the accident scene 1.6 kilometres into the construction zone. That would include whether or not there were any workers or work equipment either on the highway or adjacent to the side of the highway. [9] The speed limit within the construction zone was 60 kilometres per hour. There were no skid or brake marks prior to the actual collision site as between the Cobalt and Normand Lavoie’s semi‑trailer. [10] The injuries sustained by Sam Fetherston as contained within paragraph of the Agreed Statement of Facts and, in particular, broken left collarbone and broken left clavicle are the same injury. In other words, left collarbone and left clavicle as listed within paragraph are one and the same. Crown counsel did not have any medical reports to substantiate any of the injuries sustained by Sam Fetherston, including his claim to having short‑term and long‑term memory issues. [11] There is no suggestion whatsoever that alcohol and/or drugs were involved in this tragic accident. [12] There is no evidence that Normand Lavoie had ever travelled on Highway No. in the Province of Saskatchewan before May 3, 2015, and, in particular, had ever driven through the construction zone south of Spalding, Saskatchewan, within which this fatal accident occurred. E. Criminal Record of Normand Lavoie [13] The criminal record of Normand Lavoie was marked as Exhibit P2. There is only one conviction, that being for driving with more than 80 mgs of alcohol in his blood pursuant to s. 253(b) of the Criminal Code in Steinbach, Manitoba, on September 20, 2001. Although driving abstract was not filed, counsel confirmed that his driving record was totally clean and that he had no previous driving offences other than the .08 he obtained sixteen years earlier. F. Pre‑sentence Report [14] The 20‑page thorough pre‑sentence report dated August 14, 2017, prepared by Probation Officer Andrew Vergara and endorsed by the area director designate, Patrick Cortino, was filed as Exhibit C1. The report, having been prepared by Manitoba Justice, did not include any input from the victims as we usually see within pre‑sentence reports prepared in Saskatchewan; however, the Court is totally satisfied that it has sufficiently heard from the victims in this matter. That was accomplished during the sentencing hearing when the family members, and in particular, the mothers of the three teenage boys, gave their victim impact statements. [15] The pre‑sentence report filed with the Court contains detailed information regarding Normand Lavoie, including his upbringing and his present situation. There were eighteen sources of information used in the preparation of the report which covered his criminal history and attitude, family/marital, education and employment, alcohol/drug use, companions, leisure/recreation, supplementary information and Manitoba Corrections Assessment and Recommendations. Manitoba Corrections completed Level of Service/Case Management Inventory [LS/CMI] on August 8, 2017, and Normand Lavoie was assessed as low risk to re‑offend. The significant criminogenic risk factor identified for him was education/employment. The other factors which may be important for case management included mental health, trauma counselling and finances. G. The Offender [16] At this time, Normand Lavoie is 41 years of age, married and has three children, one being autistic. As result of these criminal charges, he is uninsurable as truck driver and will, in the future, have to retrain. Following the accident, he has suffered from post‑traumatic stress disorder and has been diagnosed with “mild apnea”. It is important to note that prior to the accident, sleep apnea was not an issue for Normand. [17] Normand is extremely remorseful for the catastrophic situation he has caused as a result of his unexplained inattentiveness. Although he became truck driver initially primarily as result of his losing his mother and grandmother in an accident involved semi‑truck when he was 18 years of age, he now believes that because of this tragedy, he has failed in his efforts to make it right by becoming responsible truck driver. For the most part Normand, since obtaining his A‑1 driver’s license in 2009, has been responsible truck driver; he having clean driving abstract. Although he has been unemployed since February 2017, for the vast majority of his life he has been gainfully employed and respectable law‑abiding member of society. He has been out on recognizance since May 2015 without any suggestion of any breaches of his conditions of release. H. Victim Impact Statements [18] Section 722(1) of the Criminal Code provides: Victim impact statement 722(1) For the purpose of determining the sentence to be imposed on an offender or whether the offender should be discharged pursuant to section 730 in respect of any offence, the court shall consider any statement that may have been prepared in accordance with subsection (2) of victim of the offence describing the harm done to, or loss suffered by, the victim arising from the commission of the offence. [19] The victim impact statements were compelling, and the pain expressed by the three mothers, in particular, was palpable. [20] First, we heard from Shelley Enns, the mother of Carter Stevenson, who was seventeen years of age at the time of his death. She has not set foot in the grocery store she and Carter went shopping at in preparation for their football camp weekend more than two years ago. In concluding her two‑page victim impact statement, she wrote, “To Carter am still wearing my ‘Mom glasses’. love you so much”. picture of Carter and Shelley’s victim impact statement, as well as the victim impact statements of Carter’s brothers Cody and Rhett, Carter’s step –dad Norm Enns, and letter from Carter’s teacher to the Enns family dated August 18, 2015, were marked collectively as Exhibit P3. [21] Second, we heard from Lisa Skalicky, the mother of Kristian Skalicky, who was fifteen years of age at the time of his death. Within her victim impact statement, she described Kristian as very spiritual young man who had written in an essay in January 2015 entitled “Is there master of the plan or are we masters of the plan?”: “Life is like game of cards. Your deck is determined but the way you play them is free will.” That is like God, he will give you the cards and give you good cards at the start but it’s your choice which path to go down. God gives us the choice but at the same time he is the master of our plans. If you want him to he leads you to greatness and happiness. [22] The pain Lisa has endured as result of the loss of Kristian has resulted in her leaving her home as “it was just too hard to continue living there”. Lisa’s victim impact statement and picture of Kristian were marked collectively as Exhibit P4. [23] Lastly, Crystal Gaja, the mother of Justin Gaja, who was fourteen years of age at the time of his death, read her victim impact statement. She described how Justin was very structured and always came home for lunch. She would stand at her kitchen window and watch for him. As soon as she could see him coming through the trees, she knew it was time to get his food on the plate. Some days she still stands at her window and watches. She wrote: “The trees are still there, so is the path, but my son is not.” [24] In closing her victim impact statement, she wrote: Because my love for my son will always remain, so will the pain. Losing my son is not wound that time heals, it is life sentence. The day that now look forward to is the day that take my last breath here on earth. Because that will be the only day that all the pain, tears, sadness and sorrow will finally be gone, forever. [25] picture of Justin, Crystal’s victim impact statement and the victim impact statements of Justin’s aunt April Buyaki and Justin’s grandmother Betty Richardson were marked collectively as Exhibit P5. [26] Although Sam Fetherston was not in attendance at the sentencing hearing, his two victim impact statements were marked collectively as Exhibit P6. I. Section 726 of the Criminal Code Statement of Normand Lavoie [27] Section 726 of the Criminal Code provides: Offender may speak to sentence 726 Before determining the sentence to be imposed, the court shall ask whether the offender, if present, has anything to say. [28] At the conclusion of the sentencing hearing Normand Lavoie made the following statement: Okay. To the families of Carter, Kristian, Justin and Sam, what happened to you is inexplicable and should never have happened. should never have been on that road. You know, as strange as it may sound, know exactly how you feel. Because my mom and grandma were actually taken by truck driver as well. And since then, it's been my driving force to make sure that what happened to me, doesn't happen to anybody else. Unfortunately, failed catastrophically in that aspect. There is nothing can say, there's nothing can do now. Your boys, from what heard, were wonderful boys, and there's not day that goes by that doesn't hurt me. Every night spend, can barely sleep at night. And all think of, all see was that accident. never saw their faces, but have since seen their faces through the media and gotten their names, and will never forget them. You know, contemplated taking my life once or twice because of it, but have family of my own that needs me. And me going to jail isn't going to bring them back. These past two years have been really stressful on my family and myself. But am fully prepared for what's to come. I've made my peace with what's to come. haven't driven the truck since, nor do plan on returning to the truck, because can't do it anymore. There's no way. There's no way can do it. That in itself is the anguish and trauma that go through every day with reminders of big trucks going by, construction crews on the road. Even coming out here from Winnipeg, couldn't do the drive. Cynthia had to do all the driving, because couldn't do it. Long distances scare the hell out of me now. And, yes, do understand that what did was wrong. did something wrong. It was not intentional, it was an accident, it was accidental. have condition that didn't know that had at the time. That it caught up to me. Because it being undiagnosed, it just accumulation [sic] which resulted in what happened, and yes, am at fault. admit that, but did not do this intentionally. Now, if you could find it in your hearts to maybe someday forgive me. It doesn't have to be now, or it can be 20 years from now. completely understand the anger, the frustration, vengeful feelings that you have for me, because I've been there too. I've never met the driver that killed my mom and grandma, and not to mention almost took my little brother, too, but please understand that am truly, deeply sorry for your losses, and that will never forget them. Their pictures are seared seared, tattooed in my brain. I'm never going to forget them for the rest of my life. May God and you have mercy on me. J. Position of the Crown [29] It was the position of the Crown that the Court should impose sentence of six years imprisonment in federal institution. In addition, the Court should impose nine‑year driving prohibition pursuant to s. 259(2) of the Criminal Code, ten‑year s. 109 of the Criminal Code firearm prohibition Order, secondary DNA Order pursuant to s. 487.051 of the Criminal Code and victim surcharge pursuant to s. 737 of the Criminal Code of $800.00 payable forthwith and in default eight days consecutive to the six‑year sentence. K. Position of the Defence [30] It was the position of the defence that the Court should impose sentence of two years plus one day in federal institution. The defence agreed that ten‑year s. 109 of the Criminal Code Order is appropriate but did not take any position with regard to the length of driving prohibition pursuant to s. 259(2) of the Criminal Code or the secondary designated offence DNA Order requested by the Crown. The defence agreed that the victim surcharge of $800.00 pursuant to s. 737 of the Criminal Code should be payable forthwith and in default period of eight days to be served consecutively to the penitentiary sentence. L. Sentencing Provisions of the Criminal Code [31] This decision must be guided by the purposes and principles of sentencing as contained within ss. 718 to 718.2 of the Criminal Code. Purpose 718 The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (a) to denounce unlawful conduct; (b) to deter the offender and other persons from committing offences; (c) to separate offenders from society, where necessary; (d) to assist in rehabilitating offenders; (e) to provide reparations for harm done to victims or to the community; and (f) to promote sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community. Fundamental principle 718.1 sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Other sentencing principles 718.2 court that imposes sentence shall also take into consideration the following principles: (a) sentence should be increased or reduced to account for any relevant aggravating and mitigating circumstances relating to the offence or the offender ... nan (b) sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders. M. Analysis [32] In sentencing Normand Lavoie, the Court has considered all of the purposes and principles of sentencing as contained in ss. 718 to 718.2 of the Criminal Code. [33] In dangerous driving cases, however, denunciation and deterrence play significant role in maintaining public confidence in the administration of justice. [34] Although this Court in 2015 made the point in Dunford, 2015 SKQB 386 (CanLII), 92 MVR (6th) 26, that sentences in dangerous driving cases must deter others from driving dangerously, particularly in highway construction zone, we keep getting situations in which individuals are convicted of dangerous driving within those construction zones. This must stop. Not only truck drivers driving huge heavy “death machines” but all drivers of all vehicles driving in construction zones must follow the law and reduce their speed and drive attentively. Just too many things can go wrong. Construction zones are very dangerous places to be in for everyone, both the construction workers and the occupants of every vehicle that enters that construction zone. [35] In addition, Normand Lavoie’s unlawful conduct must be denounced. Cpl. Doug Green, forensic accident reconstructionist, determined that the cause of the collision was the actions of Normand Lavoie. He failed to recognize the stopped vehicles in the active construction zone and to allow sufficient distance to bring his vehicle to safe stop before colliding with the rear of the Cobalt in which Carter, Justin and Kristian were occupants. [36] The fundamental principle of sentence being proportionate to the gravity of the offence, as well as the degree of responsibility of the offender, must also be considered by the Court in sentencing Normand Lavoie. [37] Lastly, the additional sentencing principles as outlined in s. 718.2 of the Criminal Code, including aggravating and mitigating factors in this case, and similar sentences which have been imposed for similar offences committed in similar circumstances must be considered by the Court. To the greatest extent possible, parity must be accomplished considering other sentences imposed for individuals convicted of dangerous driving causing death and causing bodily harm. In seeking that parity, the totality principle must also be applied by the Court in determining what the ultimate sentence will be for multiple counts as contained within an Indictment related to the same incident. This is an intricate process that must be crafted with great care by the sentencing judge in determining what the ultimate sentence should be. very difficult task for any judge especially when it involves the death of multiple individuals. [38] In this case, although Normand Lavoie is Métis, defence counsel advised that there are no Gladue factors (R Gladue, 1999 CanLII 679 (SCC), [1999] SCR 688) that need to be addressed by this Court pursuant to s. 718.2(e) of the Criminal Code. Notwithstanding counsel’s position, the Court has taken note of the Gladue information as contained within the pre‑sentence report filed with the Court. [39] The Crown presented spread sheet of 21 cases but indicated that it was, in particular, relying upon the following eight cases. Those eight cases include: (a) Bagri, 2017 BCCA 117 (CanLII), MVR (7th) 219; (b) Dunford, 2017 SKCA (CanLII), 345 CCC (3d) 374; (c) Reynolds, 2016 SKQB 21 (CanLII), 94 MVR (6th) 195; (d) Fedan, 2014 BCSC 2586 (CanLII); (e) Regier, 2010 ONSC 1963 (CanLII), 93 MVR (5th) 264; (f) Ernst, [2006] AJ No 949 (QL) (Alta QB); (g) Fitt, 2011 ONCJ 223 (CanLII), 14 MVR (6th) 246; and (h) Rij (1993), 44 MVR (2d) 299 (Ont Ct J). [40] Although the Crown candidly admitted that it had no authority to support its request for term of imprisonment of six years, she believed that such sentence was warranted primarily as result of the three deaths and severe injuries to fourth victim at the hands of professional driver within construction zone on Saskatchewan highway. [41] The defence provided the Court with 19 cases, of which there were two Saskatchewan cases which overlapped with the cases that were provided by the Crown. [42] Sentences for dangerous driving are very diverse. Although cases were provided to the Court which resulted in community‑based sentence, those cases are of limited benefit to the Court as that is not allowable or, indeed, appropriate at this time. It is, however, useful to point out how historically dangerous driving causing death cases have been dealt with in the past by the courts. [43] Both the Crown and defence counsel are requesting that the Court sentence Normand Lavoie to penitentiary sentence. The Court agrees that penitentiary sentence is appropriate considering the tragic facts of this case. At this juncture, the Court wants to make it crystal clear that it is not sentencing Normand Lavoie to penitentiary term so that he can be near his family; the Court is sentencing him to penitentiary term as it is appropriate to do so and has nothing to do about accommodating his possibly being near to his family. [44] Of the eight cases provided to the Court by the Crown, there were only two Saskatchewan cases: Reynolds, which resulted in sentence of eighteen months and eighteen months’ probation; and Dunford (CA), which confirmed the trial judge’s sentence of two years less day. The Reynolds case involved the death of two people in head‑on collision in fog on Saskatchewan highway. Mr. Reynolds was professional driver working at the time of the accident. The Dunford case involved the death of young pregnant flag woman when she was struck by vehicle driven by Mr. Dunford within construction zone in southern Saskatchewan. Although Mr. Dunford was professional driver, he was not working at the time of the accident. [45] Although neither counsel provided the Court with Saskatchewan dangerous driving causing death case in which penitentiary sentence was imposed, the Court is aware of the Belly, 2011 SKCA 88 (CanLII), case in which the Court of Appeal confirmed the joint submission made to the sentencing judge of 3½ years. The issue on appeal was the length of the driving prohibition order imposed, which the Court of Appeal reduced to ten‑year driving prohibition. The Belly case, however, is of limited assistance as it was joint submission regarding one count of dangerous driving causing death and involved an accused whose license was suspended at the time of the accident. [46] The remaining cases provided by the Crown resulting in penitentiary sentences from two and half years to six years were not Saskatchewan cases. Of particular assistance to the Court was the recent decision of Bagri. While confirming that in dangerous driving cases protection of the public through general deterrence and denunciation are paramount considerations for the Court, the British Columbia Court of Appeal also confirmed how difficult dangerous driving sentencings are as there are never two cases exactly the same. [47] In that case, the British Columbia Court of Appeal, at paragraph 25, stated: [25] The role of this Court on sentence appeal is limited, in recognition of the unique role of the sentencing judge and the discretionary nature of the exercise. That is clearly so in dangerous driving cases, where so much hinges upon an appreciation of the many factors in sentencing. As noted in Bosco [2016 BCCA 55]: [40] The factual circumstances of dangerous driving cases tend to vary widely. That being so, the range of appropriate sentences is quite broad. Factors such as the offender’s age, the circumstances of the accident, the duration of the dangerous driving, the existence or absence of criminal record, the degree of deviation from driving norms, the particulars of the highway and its use and driving conditions are all relevant factors for consideration. Although other cases provide helpful guidance, determining fit sentence in dangerous driving case is particularly fact‑sensitive exercise: Sadler, 2009 BCCA 386 (CanLII) at para. 34. [48] Mr. Bagri was sentenced to three years imprisonment. He was 45‑year‑old professional driver who had failed to adequately check the brakes of the truck he was driving at brake check stop and proceeded down hill on highway resulting in head on collision killing four persons. The Court found that his actions in failing to check the brakes were evidence of intentional risk‑taking and that stated at paragraph 6: [6] The trial judge concluded that, on the totality of the evidence the appellant was driving in dangerous manner. His conduct “was not momentary lapse of attention”. On all of the evidence, “including that of Mr. Bagri’s actual state of mind, failing to stop at brake check, driving large heavy truck in the oncoming lane of busy wet highway, through sharp curve on steep downhill grade, in excess of the posted advisory speed past some five cautionary or warning signs in the 0.7 kms prior to the collision scene”, the appellant’s conduct amounted to marked departure from the requisite standard of care. [49] Mr. Bagri was professional driver, as is Mr. Lavoie. Professional drivers were also involved in the Rij case and the Ernst case. The Rij case resulted in five‑year penitentiary sentence; however, Mr. Rij denied responsibility for the offence, resulting in the necessity of trial after which he was convicted of dangerous driving causing death. He had significant criminal record, including two previous dangerous driving convictions. At paragraph of that decision, the Court stated: [5] do not regard the facts relating to the offence of which the accused has been convicted as the worst possible case. However, find in all the circumstances in the evidence in this trial it is on the cusp of being the worst possible case and find this despite the fact that there was no evidence of alcohol consumption impairment or excessive speed. The accused is professional driver. He was driving five ton truck. He was acquainted with the intersection and think it can be judicially noted that the intersections in certain areas of this jurisdiction are heavily travelled. ... The accused, as professional driver being acquainted with the subject intersection, had to be aware of that. For whatever reasons, he went through red light. There was no evidence that he attempted to stop. characterize those particular facts as being on the leading edge of the worst case of the offence in question. In his submissions counsel for the accused took issue with the Crown's word “deliberate”. It may be question of semantics but it is my view on the evidence which was found as fact in this trial, the accused intended to run the traffic lights at the intersection. As indicated, this is not question of momentary lapse or inattention. He intended to run that intersection with the consequent risk to the safety of others on the highway and as events transpired, to the tragic results in this case. [50] The Ernst case resulted in 2½‑year penitentiary term. Like Mr. Lavoie, Mr. Ernst pled guilty avoiding the necessity of the trial. Although he had criminal record for driving‑related offences, including alcohol use, he, like Mr. Lavoie, had the support of his family. Mr. Ernst was also professional driver who knew that his trailer had no brakes and that the heavy nature of the load would require additional stopping time. His driving included erratic weaving in and out of traffic for some time, and there was no rational reason for his ultimately going through red light other than he was overtired. His actions resulted in the death of one person. [51] The only case that has resulted in six‑year sentence is Regier, which sentence was rendered following five‑day trial during which time Mr. Regier testified. He had three prior Criminal Code convictions and 25 highway traffic convictions. The accident involved “aggressive high speed” and resulted in two deaths and one individual seriously injured. At paragraph 10, the Court noted: [10] The defendant’s driving record discloses 25 highway traffic convictions over the past 28 years, including two further charges after the current charges came before the court: careless driving, and improper lane change when he almost caused an accident. note that when he was stopped by the police on Highway 17 with regard to the careless driving charge, he had driven past the place of the collision giving rise to the convictions currently before the court, and within four days of its second anniversary. [52] And at paragraph 18: [18] The defendant was speeding at the time of the collision between 110 and 120 Km/Hr. The speed limit was 90 Km/Hr. His driving at the time was needlessly aggressive and included very high speeds prior to the collision. Were this merely an isolated serious error in Judgment, it would not be an aggravating factor. However this was not isolated. It was more than an error in Judgment, and carried with it high degree of moral blameworthiness. [53] And lastly, the Court’s inability to accept Mr. Regier’s testimony or remorse was canvassed at paragraph 28: [28] While the defendant accepted responsibility for the collision, his explanation for how the collision came to happen was not accepted. And in fact it wasn’t true. therefore give little weight to the defendant's acceptance of responsibility. reject the defendant's submission that he is remorseful. Remorse is meaningless unless it carries with it some acknowledgement of wrongdoing. Otherwise it is just words. The defendant contends in submissions that he finds he can’t even drive past the place of the accident because he finds himself so overwhelmed. Yet almost two years to the day after the collision in question, just before being stopped by the police and then charged with careless driving, he drove right past the place of the accident on highway 17. reject that submission, and give no weight to the expressions of remorse. [54] Unlike the Court rejecting Mr. Regier’s remorse, the Court totally accepts Mr. Lavoie’s deep and sincere feelings of remorse. Although the Crown argued that Mr. Lavoie was minimizing his moral blameworthiness and was deflecting responsibility for the accident, the Court is not prepared to accept any such suggestions. The Court accepts that Mr. Lavoie, to this day, simply does not know what occurred that caused him to go into “la‑la land” or go “into autopilot” as he travelled Highway No. 6, other than the flat Saskatchewan prairie. There were no issues with his log book, which was analyzed by the Highway Traffic Board presumably with view to determining if he had been travelling too long without break to rest. He thinks he was travelling at highway speed, which would have been 100 kilometres per hour; however, the accident reconstructionist’s opinion is that Mr. Lavoie’s semi‑trailer was travelling at 84 kilometres per hour at the time of the collision. Although he cannot remember traveling that 1.6 kilometres from the beginning of the construction zone or seeing the six construction signs, something was going on in that the speed of the semi‑trailer would appear to be slowing down, although we will never know for sure. What we do know is that there were no steps taken by him to brake or avoid the collision as it was “just there”. [55] There are multiple aggravating and mitigating factors that the Court must consider in this matter. The aggravating factors include:(a) by far the most aggravating factor is the death of three innocent teenagers and the serious injury of a fourth person, a 22‑year‑old flag person;(b) the devastating impact the death of these three teenage boys has had on their families;(c) Normand Lavoie was a professional driver and, thus, capable of exercising more skill and vigilance;(d) the fact that a larger, heavier vehicle was involved, requiring more care; and(e) the accident occurred within a construction zone. [56] The mitigating factors include:(a) Normand Lavoie consented to his committal to trial in Queen’s Bench and pled guilty, accepting full responsibility for this horrific accident;(b) Normand Lavoie’s sincere and profound remorse;(c) alcohol and/or drugs were not a factor in this accident;(d) Normand Lavoie had a clear driving abstract for driving offences and a dated minimal criminal record;(e) Normand Lavoie is a low risk to re‑offend in the future; and(f) Normand Lavoie has the continued support of his family and community. [57] As previously indicated, no sentence will bring back Carter, Kristian or Justin or make it right for their families. While certainly realize that all of the families believe they have been handed “life sentences”, in reality Normand Lavoie has sentenced himself to “life sentence”. There is nothing that this Court can do that would surpass the penalty Mr. Lavoie has already handed down to himself. [58] The best the Court can do, unfortunately, is to consider the objectives and principles of sentencing, the aggravating and mitigating factors of this case and similar sentencing results for similar convictions for dangerous driving. Unfortunately, for the families sentencing is not perfect science but the best the law has to offer. N. Conclusion [59] Mr. Lavoie, would you please stand. [60] Considering all of the objectives and principles of sentencing as contained within s. 718 of the Criminal Code, including, in particular, denunciation and deterrence, both the aggravating and mitigating factors associated with this tragic occurrence, the principles of parity and totality and the voices of all of the victims involved in this matter, I sentence you with regard to Count No. 1, namely, dangerous driving causing the death of Justin Gaja, to a term of imprisonment of three years to be served in a federal institution. [61] As to Count No. 2, being dangerous driving causing the death of Carter Stevenson, I sentence you to a term of imprisonment of three years to be served in a federal institution concurrent to Count No. 1. [62] As to Count No. 3, being dangerous driving causing the death of Kristian Skalicky, I sentence you to a term of imprisonment of three years to be served in a federal institution concurrent to Count No. 1 and Count No. 2. [63] As to Count No. 4, being dangerous driving causing bodily harm to Samuel Fetherston, I sentence you to a term of imprisonment of one year to be served in a federal institution concurrent to Counts No. 1, 2 and 3. [64] Pursuant to s. 259(22) of the Criminal Code, you are prohibited from operating a motor vehicle on any street, road or highway or other public place for a period of five years following your release from imprisonment. [65] There shall be ten‑year mandatory firearm prohibition order pursuant to s. 109 of the Criminal Code. You shall be prohibited for ten years from your release from prison of possession of any firearm, other than a prohibited firearm or restricted firearm, and any cross‑bow, restricted weapon, ammunition and explosive substance. [66] As these charges are secondary designated offences, there shall be an order pursuant to s. 487.051(3) of the Criminal Code in Form 5.04 for the taking of bodily substances from yourself for the purpose of DNA analysis. The Court has concluded that it is in the best interests of the administration of justice to make this DNA order considering the factors as contained within s. 487.051(3) of the Criminal Code, including the nature of the offences, the circumstances surrounding their commission and the impact such an order would have on your privacy and security of your person. [67] Additionally, pursuant to s. 737 of the Criminal Code, order victim surcharge of $800.00 to be paid forthwith, failing which impose sentence in default of payment of eight days to be served consecutively to the global sentence have imposed of three years. “M.L. Dovell” J. M.L. Dovell

The accused was found guilty of three counts of dangerous driving causing death, contrary to s. 249(4) of the Criminal Code, and one count of dangerous driving causing bodily harm, contrary to s. 249(3) of the Code. During his employment as professional truck driver, the accused had driven into construction zone on highway and hit another vehicle that had been stopped. The three teenage occupants of the vehicle were killed and flag person was severely injured as result of the collision. The accused was sure that he had not been asleep at the time of the accident but felt that he had not been paying attention. He had not noticed any of the signs posted at 100-metre intervals after the start of the construction zone 1.6 km south of the accident. The accused was 41 years of age. He had obtained his A-1 driver’s licence in 2009 and had clean driving abstract. He was married and had three children. He had recently been diagnosed with mild sleep apnea. He expressed remorse to the victim’s families and suffered from post-traumatic stress disorder.| HELD: The accused was sentenced to three years in imprisonment on the first count and three years concurrent for the second and third counts, and one year concurrent to the other counts on the fourth count. He was prohibited from operating a motor vehicle for five years and from possessing a firearm for 10 years after his release from imprisonment. The aggravating factors in the case were that the accused’s inattentiveness caused the death of three people and severely injured another person. The impact of the children’s deaths was devastating on their families. The accused was a professional driver and capable of exercising more skill and vigilance, especially when he was operating a semi-trailer truck in a construction zone. The mitigating factors were that the accused pled guilty and expressed profound remorse. He had not been drinking and had a clear driving record. The accused was at low risk to re-offend.

e_2017skqb265.txt

nan Q.B. A.D. 1998 No. 586 J.C.S. IN THE QUEEN'S BENCH JUDICIAL CENTRE OF SASKATOON BETWEEN: CAPITAL PROPERTIES LTD. and PRAIRIE SPAN MANAGEMENT LTD. and BENNETT PROPERTIES LIMITED RESPONDENT T.J. Zakreski for the applicants D.D. Kowalishen and G. Richards for the respondent JUDGMENT KLEBUC J. April 24, 1998 [1] The applicants seek an order under s. 11 of TheLandlord and Tenant Act, R.S.S. 1978, c. L-6 vesting the wholeterm of their sub-leases with either V.I.P. Business CentreInc. ("VIP") or 598710 Saskatchewan Ltd. ("Sask. Ltd.") onsuch conditions as the Court deems proper. [2] Bennett Properties Limited ("Bennett") owns an office building municipally described as Hanselman Plaza ("the Plaza"). By lease indenture dated August 14, 1992 it leased 8,787 square feet of office space to VIP for term of five years ending on August 31, 1997 ("the VIP head lease"). By written agreement Bennett extended the VIP head lease to August 31, 1999. VIP operated business center (the "VIP Business Centre") in its premises which included sub-leasing individual offices to clients and providing them with receptionist and the use of miscellaneous office equipment. Each applicant entered into written sub-lease of office space with VIP for term of 50 months ending on August 31, 1997, and an optional renewal term of one year upon three months' notice. Only copy of the sub-lease between VIP and Capital Properties was put in evidence. [3] In August of 1996, Bennett asked VIP to move its business centre and sub-lessees to another part of the Plaza in order to create large block of space which Bennett proposed to lease to Corrections Canada. Bennett agreed to pay all relocation costs. Ms. Peddle, an officer of VIP, then asked the applicants to relocate to offices located in the area substituted by Bennett. Mr. Jim Remai of Capital Properties responded to her request by fax message dated September 9, 1996 wherein he confirmed the applicants' willingness to move to specific location within VIP's new premises on terms stated therein. Subparagraph of his fax reads: We will re-do the leases providing for our current rate to continue to the expiration of the lease you have just renewed. Further, we would appreciate renewal that relates to your renewal, if you exercise it firstly, and secondly, at rate that will be no more than your percentage increase in both the base rent and the operating. In para. of her first affidavit, Ms. Peddle deposed that she gave copy of Mr. Remai's fax to Bennett; that Mr. Olszewski, the property manager for Bennett, confirmed that the terms of Mr. Remai's fax were acceptable; that Bennett agreed to renew the VIP head lease for term of five years; and that she then agreed to new five-year sub- lease with the applicants on the terms they sought with the concurrence of Bennett; that she was to prepare lease renewal agreements for execution by the applicants. In his affidavit Mr. Olszewski denied having received copy of Mr. Remai's fax or having agreed to the lease renewals alleged by Ms. Peddle. He further denied any knowledge of the renewals between VIP and the applicants but admitted he knew Mr. Remai wanted lease renewal for term of five years. [5] VIP and the applicants relocated their premises but thereafter never prepared and executed renewals of their sub- leases. Similarly, no renewal of the head lease was ever [6] By agreement dated May 20, 1997, VIP surrendered its lease to Bennett in consideration of Bennett releasing it from the obligation to pay outstanding rents of approximately $78,572.97. Paragraphs and of the agreement provide: 4. The Tenant herein assigns all leases to the Landlord and agrees not to cancel any existing leases with any of the subtenants or to entice any of the existing subtenants to not renew their leases. The Tenant shall provide list of subtenants and shall agree to not lease to any of the Tenants on the list for period of one year. 5. The effective date of the transfer shall be May 15, 1997, and any lease between the Landlord and Tenant shall be terminated as of this date. VIP then advised its sub-lessees that it would discontinue operating the VIP Business Centre on May 31, 1997 with Bennett to provide services thereafter for those who wished [7] Bennett entered into an undated head lease with Sask. Ltd. for the space previously occupied by VIP and sold Sask. Ltd. the furnishings and equipment it had purchased from VIP. Paragraph of their sale agreement contains an assignment of all leases by Bennett to Sask. Ltd. and its assumption of the lessor's obligations thereunder. The applicants received written notice of the transfer from Bennett and thereafter paid the rent due under their sub- leases to Sask. Ltd. [8] Mr. Olszewski represented Sask. Ltd., and also Bennett. Several oral and written exchanges took place between Jim Remai and Mr. Olszewski after May 1997 concerning traffic in the enclosed courtyard of the Plaza and other matters. In his written messages, Mr. Remai never called on Bennett to execute sub-lease renewals. However, Mr. Olszewski had prepared and forwarded Mr. Remai one-year renewal which the applicants never executed. [9] On March 13, 1998, Bennett re-entered the head lease premises because Sask. Ltd. defaulted in the payment of $53,768.63 of rent. It then gave the applicants notice of termination of their month-to-month tenancy and required them to vacate their premises before April 1, 1998, period of less than the one clear month prescribed by law. The applicants then launched the motion before me. [10] After hearing Mr. Kowalishen, counsel for Bennett, and Mr. Zakreski, counsel for the applicants, reserved the matter. While the application was sub judices, Bennett entered the applicants' premises and removed their property. The applicants then launched second application for possession order. Mr. Grant Richards appeared for Bennett in place of Mr. Kowalishen. During his submission he properly disclosed that Bennett had re-leased the head lease premises to Corrections in February 1997, with possession scheduled for April: material fact that Bennett and Mr. Kowalishen withheld during the first hearing. [11] The exact relationship between Bennett and Sask. Ltd. is not known nor addressed by Bennett in its affidavit material. However, Corporations Branch searches marked as exhibit "M" to Mr. Remai's affidavit confirm that Everett Kearley is the president of both corporations. Position Taken by the Parties [12] Bennett made the following submissions in opposition to the application: (1) valid renewal head lease did not exist between it and VIP; (2) No valid renewal sub-leases existed between VIP and the applicants nor could they be created for lease term extending beyond the term of the VIP head lease; (3) Neither the alleged renewal head lease nor the alleged renewal sub-leases meet the requirements of s. of the Statute of Frauds (1677), 29 Car. 2, c. on which it relies as shield; (4) In the alternative, if the alleged sub-lease renewals are valid, the Court lacks jurisdiction to grant the relief where sought solely by notice of motion; (5) In the further alternative, the applicants are not entitled to the relief claimed under s. 11 of the Act. [13] The applicants submitted that they established the essential requirements for valid renewals of the head lease and their sub-leases, and that they had met the requirements of s. of the Statute of Frauds. In the alternative, they submitted Bennett is bound by their sub-leases as consequence of taking an assignment of VIP's leases. Issues [14] The following issues arise: 1. Whether a valid renewal of the headlease between VIP and Bennett exists? 2. Whether valid renewals of sub-leaseshad been created between VIP and theapplicants? 3. Assuming valid renewals of the sub-leases and the head lease exist, doess. 4 of the Statute of Frauds barenforcement thereof against Bennett? 4. Does the Court have jurisdiction tohear an application for relief unders. 11 brought solely by notice ofmotion? 5. If the answer to issue no. 4 is"yes", are the applicants entitled tothe relief sought? 6. Assuming valid renewals of theapplicants' sub-leases exist, isBennett bound thereby by virtue oftaking the assignment from VIP? [15] Sections 10, 11 and Part IV provide, inter alia, summary procedure for the adjudication of disputes between landlords and tenants concerning rights and obligations under land leases. Where complex questions of fact or law are involved, this Court has consistently held that it should not employ such summary procedure: Saskatoon Business College Ltd. v. 607113 Alberta Ltd. (1995), 1995 CanLII 6110 (SK QB), 132 Sask. R. 248; Feduniak v. Deneiko (1981), 1981 CanLII 2408 (SKDC), 13 Sask. R. 375 (Dist. Ct.); Mirdco Holdings Ltd. v. Westfair Foods Ltd. and Wellington Management Ltd., [1975] W.W. D. 158 Ct.). Further, if the relief sought (e.g. writ of possession under Part IV) will not provide complete justice as between the parties, the same is not to be granted: Fitament v. Demich (1951), 1951 CanLII 164 (SK QB), W.W.R. (N.S.) 522 (Sask. Dist. Ct.). [16] Credibility cannot be determined on an examinationof the conflicting affidavits. Because the findingof facts essential to an adjudication of issue nos.1, 2 and 6 is dependent on which of the conflictingevidence to accept, the same cannot be summarilydealt with. In the result, trial of the issues may be necessary unless decision on those issues where the facts are not in dispute will dispose of the application before the Court. If it cannot, then an adjudication of those issues by way of summary procedure also may be inappropriate. [17] While credibility is critical here, I am of the viewthat a decision on issue nos. 3 and 4 can dispose of theapplication, and perhaps the issues between the parties. Therefore, will address them. [18] I have assumed for the purposes of these reasonsthat the evidence led by the applicants is true. If the parties ultimately require trial of the issues or any of them, my assumptions obviously will not bind the trial judge. 1. Does the Court have jurisdiction to hear s. 11 application brought solely by notice of motion? [19] The respondent submitted the application is not properly before the Court because they proceeded by notice of motion in circumstances where no "action" existed. Since neither Bennett nor the applicants had initiated an action, it argued that the Court lacks jurisdiction to hear "what is clearly supposed to be an interlocutory motion". It cited no authorities in support of this submission. [20] Section 11 of the Act in part reads: 11(1) Where lessor is proceeding by action or otherwise to enforce right of re-entry or forfeiture under covenant, proviso or stipulation in lease, the court, on application by person claiming as under lessee an estate or interest in the property comprised in the lease or any part thereof, either in the lessor's action, if any, or in an action brought by that person for that purpose, may make an order vesting. nan (emphasis added) [21] For the purposes of ss. 11, 12 and 13, "action" is defined to include any proceedings under Part IV where the right to summary application by landlord is clearly provided. Section 10(3) recognizes the right of tenant to summarily apply for relief from forfeiture. Rule 13(1) of the Rules of Court states that except as otherwise provided, every action is to be commenced by statement of claim. [22] Notwithstanding Rule 13(1), am of the view that the term "action" in s. 11 includes summary applications by way of notice of motion. There is no reason for landlords to have better access to this Court than tenants concerning possession of demised premises. The Province of Ontario eliminated any ambiguity by amending s. 21 of its Landlord and Tenant Act (which was identical to s. 11) by adding the phrase "or application in the Ontario Court (General Division) brought by such person" after the words "lessor's action, if any, or in an action". similar amendment of the Act is required to avoid any further confusion or uncertainty in this jurisdiction. am of the further opinion the words "or otherwise" include extrajudicial actions by landlords, including re-entry of leased premises occupied by tenant or former tenant. [23] Had concluded that the applicants erred in not proceeding by statement of claim, such error would have been procedural one, curable under Rule without affecting the jurisdiction of this Court. If required, would have granted the applicants leave to issue statement of claim and abridged the time for service thereof on the respondent. now will address the second issue. 2. Under s. 11 of the Act, are the applicants entitled to leases from Bennett on the same terms as their sub-leases [24] In support of their application the applicants rely on Re Golden Griddle Corporation v. Corporation of the City of Toronto (1997), 1997 CanLII 4440 (ON CA), 33 O.R. (3d) 545 and the authorities cited therein. While these authorities confirm sub-tenant's right to seek relief from forfeiture of the head lease, such right is not as extensive as asserted by the applicants. [25] In Re Golden Griddle Corporation, the City of Toronto owned building and parking lot which it leased to third party ("head lessee") for term of 20 years on conditions that required the head lessee to pay all costs associated therewith save for realty taxes. The head lessee sub-leased one-quarter of the building to Golden Griddle. The City cancelled the head lease when the head lessee defaulted in paying rent and immediately sought to re-enter the whole premises, including the premises occupied by Golden Griddle. Golden Griddle applied for and obtained an order under s. 21 of The Landlord and Tenant Act of Ontario that bound the City with the terms of its sub-lease. On appeal, the Ontario Court of Appeal overturned the trial judge's decision to the extent of vesting the head lease between the City of Toronto and the head lessee in Golden Griddle save for the term of the demise which would be for the shorter period provided in Golden Griddle's sub-lease. The court further required the respondent to pay all arrears of rent under the head lease and to reimburse the City of Toronto for expenditures made in discharging the obligations of the head lessee. At p. 549 the court made the following observations regarding s. 21: The question is not whether the respondent is entitled to relief from forfeiture but, rather, on what terms such relief might properly be granted. The terms on which relief may be granted are obviously important to the head lessor and, as the cases demonstrate, the court must have regard to the effect the grant will have on the head lessor's interests. Before relief is granted to sub-lessee, the court should be satisfied that the granting of the relief will not unfairly prejudice or adversely affect the head lessor: see Toronto-Dominion Bank v. Dufferin-Lawrence Developments Ltd. (1981), 1981 CanLII 1857 (ON CA), 32 O.R. (2d) 597 at pp. 603-04, 1981 CanLII 1857 (ON CA), 122 D.L.R. (3d) 272 (C.A.); Hurontario Management Services Ltd. v. Menechella Brothers Ltd. (1983), 1983 CanLII 1624 (ON CA), 41 O.R. (2d) 348 at p. 350, 1983 CanLII 1624 (ON CA), 146 D.L.R. (3d) 110 (C.A.); Belgravia Insurance Co. v. Meah, [1964] nan Q.B. 436 at pp. 444 and 446, [1963] All E.R. 828 (C.A.); and Goldhar Estate v. Brunswick of Canada Ltd. (1990), 72 O.R. (2d) 763 at p. 769, 1990 CanLII 6664 (ON SC), 68 D.L.R. (4th) 329 (H.C.J.). In each of these cases, relief from forfeiture was granted only after it was established that the making of the order would not impact unfairly on the head lessor. The Court of Appeal further confirmed that sub-division of premises demised under head lease should not be imposed where the head lessor operated the premises as whole, even though the head lessee had sub- leased portions thereof to several sub-lessees. It noted that only where the evidence clearly confirms that sub-premise is separate and divisible from the total premises should the court bind the head lessor to sub-lease of premises and cited Chatham Empire Theatre (1955) Ltd. v. Ultrans Ltd. and Others, [1961] W.L.R. 817. In Chatham Empire Theatre, the sub-leased premises consisted of separate building totally occupied by the sub- lessee. This is not so here. [26] While this Court has considerable discretion under s. 11 of the Act, in my view it should exercise such discretion within the guidelines outlined in Re Golden Griddle. grant of the relief requested by the applicant would constitute an improper exercise of such discretion. They are not the sole tenant in "stand alone building" of the kind in Chatham Empire Theatre. Additionally, the limited evidencebefore me suggests that the relief sought wouldunfairly affect the landlord. [27] In London Bridge Buildings Co. v. Thomson, (1903) 89 L.T. 50 the court gave the sub-lessee the option to have its case dismissed or to accept an order requiring the sub- lessee to pay the whole rent due to the head lessor to the date of recovering possession plus fair rent for the premises thereafter. The applicants expressed no interest in takingover the whole of the head lease premises on the terms of thehead lease between VIP and Bennett. Accordingly, I see noneed for a conditional order of the nature in London BridgeBuildings Co. 3. Does s. of the Statute of Frauds (1677), 29 Car. 2, c. create procedural bar to grant of the relief sought by the applicants? [28] While my decision regarding issue no. is dispositive of the application under s. 11, the applicants' counsel submitted they are entitled to relief under s. 10 of the Act because Bennett accepted an assignment of the renewal sub-leases under the purchase agreement of May 21, 1997. Consideration therefore must be given to the requirements of s. of the Statute of Frauds. It provides: nan No action shall be brought whereby to charge. .any person. .upon any contract or sale of lands, tenements. or any interest in. .them. .unless the Agreement upon which such action shall be brought, or some memorandum or note thereof shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized. [29] In this case, the only memoranda consist of the original head lease, the original sub-leases between VIP and the applicants, and Mr. Remai's fax messages of September and 16, 1996 to Ms. Peddle. VIP and Bennett never signed these fax messages. Nor do the messages set out the essentialrequirements for a valid lease which are canvassed inSaskatoon Business College Ltd. v. 607113 Alberta Ltd., supra,and the authorities cited therein. Williams Rhodes, Canadian Law of Landlord and Tenant, 5th ed., Vol. (Toronto: Carswell, 1983) at pp. 3-4, para. 3:3, summarized those requirements as follows: It is necessary that lease contain: particulars of the parties; description of the premises demised; the date of commencement and the duration of the term; the rent, if any; and all the material terms of the contract, not being matters incident to the relationship of landlord and tenant, including any covenants, conditions, exceptions or reservations, as well as words of present demise. nan In Marshall v. Berridge (1881), 19 Ch. D. 233, Lush L.J. expressed the significance of such requirement at pp. 244-45: nan Now it is essential to the validity of lease that it shall appear either in express terms or by reference to some writing which would make it certain, or by reasonable inference from the language used, on what day the term is to commence. There must be certain beginning and certain ending, otherwise it is not perfect lease, and contract for lease must, in order to satisfy the Statute of Frauds, contain those elements. [30] In this case, reference cannot be made to renewal of the head lease because one was never reduced to writing. In fact, Ms. Peddle deposed VIP and Bennett failed to agree on its terms. In my opinion, neither the arrangements between VIP and Bennett nor between VIP and the applicants meet the requirements of s. 4. [31] I also conclude that the actions and performance byVIP and the applicants fall short of constituting partperformance for the purposes of s. 4, regardless of whether anarrow or broad interpretation of the doctrine is applied. See: McMillen v. Chapman, 1952 CanLII 130 (ON CA), [1953] D.L.R. 671 (Ont. C.A.); Hansen v. Price Estate (1981), 1981 CanLII 2311 (SK QB), 14 Sask. R. 430 (Q.B.); Lensen v. Lensen (1984), 1984 CanLII 2424 (SK CA), 14 D.L.R. (4th) 611 (Sask. C.A.); and Fridman, The Law of Contract, 2nd ed. (Toronto: Carswell, 1986). The relocation at no cost to the applicants or VIP is as consistent with an agreement to accommodate the needs of Bennett as with the agreements asserted by the applicants. Such relocations are common in commercial office buildings. In like manner, the payment of rent at the rate provided for in the original sub-leases does not support an inference in favour of the sub-leases by "a balance of probabilities" much less "necessarily implies" the existence thereof if narrower interpretation of the doctrine was applied. Such payments are consistent with the applicants remaining in possession under month-to-month tenancy following the expiry of their sub- lease in 1997. Therefore, conclude the applicants have not obviated the requirements of s. by way of part performance of their contractual obligations with VIP or Bennett. Consequently they cannot bind Bennett with the renewal leases by way of the within summary application. [32] In addition, if had concluded that the requirements of s. had been met, or the doctrine of part performance otherwise eliminated the need to comply with s. 4, would not have exercised my discretion by binding Bennett with leases which comprised less than 15% of the head lease premises in absence of evidence that clearly demonstrates the owner's ability to rent out the balance of the head lease premises was not impaired, economically or physically. Theapplicants can obtain other office space, including otherspace offered them by Bennett. Further, should a trial judgefind that the applicants had valid renewal leases which wereenforceable against Bennett, general damages and punitivedamages would provide an adequate remedy. [33] In summary, the application is dismissed. The parties may speak to costs and whether they wish further directions regarding trial of the issues raised but not adjudicated.

The applicants sought an order under s.11 of the Landlord and Tenant Act vesting the whole term of their sub-lease with either VIP Business Centre (VIP) or 598710 Saskatchewan Ltd (SaskLtd). Bennett, owner of an office building (the Plaza), leased space to VIP for five years ending in 1997. Issues included (i)whether there had been a valid renewal of the head lease; (ii)whether there had been valid renewals of sub-leases; (iii)assuming valid renewals, did s4 of the Statute of Frauds bar enforcement against Bennett; (iv)whether the Court had jurisdiction to hear an application for relief under s11 brought solely by notice of motion; (v)are the applicants entitled to such relief; (vi)whether Bennett was bound by the sub-leases by virtue of taking the assignment from VIP. HELD: The application was dismissed. 1)It was assumed that the evidence led by the applicants was true in order to determine issues (iii) and (iv) which dispose of the application. Issues (i), (ii) and (vi) could not be dealt with summarily because of the conflicting affidavits. 2)Notwithstanding Queen's Bench Rule 13(1), the term action in s11 includes summary application by way of notice of motion. There is no reason for landlords to have better access to this Court than the tenants concerning possession of demised premises. The words 'or otherwise' include extrajudicial actions by landlords, including re-entry. Had it been concluded that it was necessry to proceed by statement of claim, such error would have been procedural one, curable under Rule without affecting the jurisdiction of the Court. 3)The Court should exercise its discretion within the guidelines outlined in Golden Griddle. grant of relief requested by the applicant would constitute an improper exercise of such discretion. They were not the sole tenant in stand alone building of the kind in Chatham Empire Theatre. The relief sought would unfairly affect the landlord. As the applicants expressed no interest in taking over the whole head lease premises on the terms of the head lease, there was no need for a conditional order of the nature of London Bridge. 4)The only memoranda consisted of the original head lease and subleases and the unsigned fax messages. The fax messages did not meet the essential requirements for a valid lease. The actions and performance by VIP and the applicant fell short of constituting part performance for the purposes of s.4 regardless of a narrow or broad interpretation of the doctrine. In any case the Court would not have exercised its discretion by binding Bennett with leases which comprised less than 15% of the head premises in the absence of evidence that clearly demonstrated the owner's ability to rent out the balance of the head lease premises was not impaired economically or physically. The applciants could obtain other office space including that offered by Bennett. General and punitive damages would provide an adequate remedy.

e_1998canlii13440.txt

J. 1994 SH. No. 110280 IN THE SUPREME COURT OF NOVA SCOTIA BETWEEN: CAPE BRETON DISTRICT SCHOOL BOARD and HER MAJESTY THE QUEEN in the Right of the Province of Nova Scotia represented by the Minister of Education DECISION HEARD: at Halifax, Nova Scotia before the Honourable Justice Margaret J. Stewart on December 13, 1994 DECISION: February 10, 1995 COUNSEL: Peter Bryson Maureen Reid, for the Applicant Reinhold Endres, Q.C., for the Respondent Stewart, J.: The Applicant, Cape Breton District School Board (the "Cape Breton Board"), operates fifty‑five schools, providing public school education from Primary to Grade 12 for approximately eighteen thousand students. Included in the fifty‑five schools are six school buildings leased by the Cape Breton Board from the Catholic Episcopal Corporation of Antigonish or other entities of the Roman Catholic Church (the "Church"). It is the responsibility for payment of the leasing cost on these six school buildings that is now before the Court. The Cape Breton Board is seeking a declaration thata) the Province of Nova Scotia is responsible to provide school buildings required for the delivery of a basic Public School Program to the students of Nova Scotia andb) where it is necessary to lease school buildings for the delivery of the basicPublic School Program, the Province bears the responsibility for the negotiations and payment of rental costs associated with the leases. The issue is whether the Respondent, the Minister of Education (the "Minister") is required to reimburse the Cape Breton Board for the costs incurred by the Cape Breton Board in leasing these school buildings from the Church. Following Province wide amalgamation of school boards in January of 1982, the Cape Breton Board assumed leasing responsibilities for the six school buildings and in 1983, entered into various leasing arrangements for the buildings, pursuant to the authority provided in s. 33(7)(d) of the Education Act 1987, R.S.N.S. 1985, c. 136: school board may (d) enter into and carry out lease or agreement for the renting of buildings for school purposes, provided that no such lease or agreement shall be entered into that; (I) does not place the rented premises completely under the control of the board, or (ii) contains any undertaking or agreement that abridges or modifies any power or duty of the board. Unlike subsections (a) and (b) of s. 33(7) which deal with other school board powers, no approval of the Minister is required under subsection (d) before the Cape Breton Board may enter into lease. In the instant, the Cape Breton Board did, however, seek the approval of the Minister, not for the leasing itself but to ensure the Minister would permit the expenditure of capital funds on these leased facilities. Absent this approval by the Minister, the Cape Breton Board may not have decided to enter into these leases. The Minister, having confirmed that the leases represented long term asset for the benefit of the general populous, approved the use of capital funds on these facilities. The Cape Breton Board later sought reimbursement from the Minister for the payment of these lease expenses. Correspondence and reports between the Cape Breton Board and the Minister and the Department of Education over the last 10 years reflect the Cape Breton Board's steadfast position that the Province of Nova Scotia (the "Province") is responsible to provide school buildings to the Cape Breton Board for use in delivering the basic Public School Program. This responsibility can, in the submission of the Cape Breton Board, be best fulfilled, by either the Province negotiating and paying the rental cost directly to the Church or the Province reimbursing the rental expenses to the Cape Breton Board. The payment of leasing expenses by the Province is not unprecedented. From 1978 to 1982, the North Side‑Victoria Amalgamated School Board leased parish schools with the leasing costs being fully paid by the Province. On the other hand, at present, there are seven school buildings leased by two boards to deliver the basic Public School Program. Six of the buildings are involved in this application and the seventh, Shannon Park School, is leased by the Dartmouth District School Board. None of the leasing costs for any of these facilities have been or are now being paid by the Province. The Cape Breton Board submits, and agree, that the tenor of number of provisions in the Education Act, in particular s. 50(1) and s. 41(1), (2) and (3) is reflective of the Province assuming responsibility to supply adequate school facilities. When certain conditions are met, the Province is required to pay for all expenditures necessary to acquire property, construct, alter or add to buildings or furnish and equip such buildings for school purposes. Also, the Province is required to pay both the capital and interest costs on sums borrowed by Municipalities, School Boards and District School Boards to erect, acquire, purchase, etc., buildings for school purposes. The Minister contends that there is no provision in either the Education Act or the Regulations under the Act that require the Minister to pay or reimburse the Cape Breton Board's leasing expenses. The Minister is, therefore, under no obligation to reimburse board for leasing expenses. The Cape Breton Board does not seek reimbursement for rental costs in respect to leases for buildings used in delivering other than the basic Public School Program. The Cape Breton's request is based on the submission that the Province is statutorily mandated to provide free of cost the buildings required to deliver the basic Public School Program. The Cape Breton Board submits there is an inequity where it is required, in order to deliver the basic Public School Program, to lease buildings from third party, in this case the Church, while other boards are provided buildings free of rental cost. The Cape Breton Board must use portion of the education funds received from the Province, calculated under the general funding formula, for payment of rental costs whereas other boards are able to use these funds for educational services and programs on behalf of their students. Although the Province under the Education Act is required to pay the cost of providing school buildings, the Education Act stipulates it is the Minister, with the approval of the Governor in Council, who is to decide whether it is necessary for board to purchase or construct new school building. The Education Act also stipulates the procedure to be followed where the board seeks the approval of the Minister. Under the Education Act, board must comply with s. 50(1) and Regulation 15 (1) and (2) by reporting to the Minister the extent to which it is necessary for it to acquire new building or to remodel an existing building. The Minister, with the approval of the Governor in Council, determines whether to meet the request of the board. If the approval is granted, the Province is then responsible to purchase, acquire, or renovate the necessary building and to provide the same free of cost to the board. The cost of operating the building is met in the property service component of the general funding formula under which school boards are funded in the Province of Nova Scotia. Although leasing is not specifically listed in s. 50 (1) or the Regulations, it is clear that should the Minister decide to meet request by board, by providing school building leased from third parties then the cost of such leasing would be to the account of the Province and not the board. Otherwise, the Province, by leasing from third parties rather than constructing or purchasing school buildings, could abrogate its responsibilities to provide free school buildings. Such an interpretation would be inconsistent with the general tenor and purposes of the Education Act. Whether board leases the school building, the authority for which is provided in s. 33 (7)(d) or whether the Province leases the building and then provides it to the board for use in delivering the basic Public School Program, makes no difference in determining the responsibility of the Province to reimburse leasing expenses. The responsibility is created by the Education Act when the procedure provided for has been followed and the Minister, with the approval of the Governor in Council, has decided that the school building is necessary. Absent the report, under s. 50(1) and Regulation 15(1) and (2), there is no obligation on the Province to fund the cost of acquiring, constructing or leasing building for school purposes. Section 33(7)(d) of the Education Act provides board with the authority to lease facilities, without the Minister's approval or involvement. The section does not state that the leasing is at the expense of the Minister, nor does it imply that anyone, other than the leasing party, is to be responsible for the rental costs. The section does not restrict the leasing to buildings to be used for Public School Programs and would, therefore, include the leasing of chattels and other property necessary to enable board to meet its obligation. It is inconceivable, when read in light of the entire Act, which regularly requires the Minister's approval, that board could enter into any lease for the rental of buildings for school purposes, without the approval of the Minister but with the expectation that the Province would pay for the leasing expense. The Cape Breton Board acknowledges that in respect to the six school buildings in issue, there was no report made to or received by the Minister under s. 50 (1) or the Regulations and consequently there was no decision by the Minister, under these provisions,determining that the buildings were necessary in the circumstances. Although the Cape Breton Board engaged in long series of correspondence with the Province, it never reported to the Minister. The Province in responding to the Cape Breton Board's application has expressed concern that permitting the Cape Breton Board to lease buildings, without first reporting the Minister for approval could encourage boards to enter into leases, as they see fit, and without the Minister having the necessary control to prioritize and meet the needs of the various boards for school buildings in accordance with the Province's ability to fund such needs. Hence, the necessity for each board to communicate to the Minister, the extent of the board's requirement for additional new or renovated school buildings and for the Minister to exercise discretion in deciding which requests represent the greatest need. During the application, there was no suggestion any of the six buildings were not required to meet the basic needs of the students now attending the school. Whether the omission to file the report was caused by inadvertence, misunderstanding, or, as suggested by counsel intentionally in order to avoid confrontation with the Minister, it has, in effect, required the Cape Breton Board to use funds that could have been available to meet other educational programs and services in order to pay these leases. Although, because of the failure to follow the Education Act, the Province is not required, at least at this time, to pay the cost of these leases, it may be that the Minister may wish to reconsider whether, pending the possible filing of report by the Cape Breton Board, additional interim funding to the Cape Breton Board is warranted in these circumstances to cover the present and future costs of these leases. However, this is matter for the Minister and absent request by the Cape Breton Board and approval by the Governor in Council, not matter of obligation under the Education Act. In respect to the declaration sought by the Cape Breton Board, the Province is responsible to provide adequate school buildings for the delivery of basic Public School Program to the students of the Province. Where the Minister has received a request in the proper form and determined, with the approval of the Governor in Council, that it is necessary to lease a school building in order to meet the Province's statutory obligation then the cost of such a lease is the responsibility of the Province. The lease costs are to the same extent as would be the cost of supplying the building free of costs. It would not, of course, include those expenses associated with operating the building and which are funded by the property services component of the general funding formula for public school education. There shall be no costs.

The applicant sought a declaration that the province was responsible for providing school buildings for delivery of the public school program and that when buildings must be leased, the province bore the associated costs. The applicant, which leased six school buildings from the Roman Catholic Church, submitted the respondent was required to reimburse the applicant for leasing costs. For the respondent, that the Education Act requires a request be made of the Minister in proper form and receive Governor in Council approval. Because the applicant failed to report to the Minister, the respondent was not required to pay the leasing costs. Where the Minister received a request in the proper form and where it was determined leases were necessary, the leasing costs would be the respondent's responsibility.

c_1995canlii4546.txt

2003 SKQB 490 Q.B. A.D. 2003 No. 26 J.C. W. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF WEYBURN BETWEEN: WILLIAM WAYNERT and SHARON CRONK, in her personal capacity and in her capacity as executrix of the Estate of Charles John Carlson, DIANNE SJOBERG, MARILYN ONDIK and LYNN HEIKKILA RESPONDENTS K.J. Bell for the applicant T.G. Graf, Q.C. for the respondents FIAT KYLE J. November 20, 2003 [1] By notice of motion of January 23, 2003, William Waynert, one of 29 nieces and nephews of Charles Carlson, has sought proof of the will of Charles Carlson in solemn form, questioning testamentary capacity, due execution of the will and raising the spectre of undue influence and coercion. [2] Mr. Carlson died October 13, 2001, and his will dated November 11, 2000, was admitted to probate January 28, 2002. By his will he bequeathed to four of his nieces his entire estate of approximately $291,000.00. He was 88 at the time of his death. When he signed his will, after dictating it to one of the executors, he seemed fully conscious of its content. The will was witnessed by two friends. [3] There is presumption of testamentary capacity and in the face of challenge the executors have provided uncontradicted evidence which affirms positively the testimony capacity of Mr. Carlson not only at the crucial time the will was signed but for some months thereafter. Those attacking the will have not come forth with evidence which, if accepted at trial, would tend to negate testamentary capacity. [4] When he decided to divide his estate among four of his nieces, two relatives took exception, but there is evidence that both of them had disappointed him in some way. They were inexplicably able to obtain the notes of lawyer who had received instructions for never-completed will in 1998. While the propriety of such disclosure by the lawyer is matter for another day, its admissibility and its relevance is far from clear. [5] The evidence is that two and one-half years before he signed the will now before the court, he had instructed lawyer to draw very different will, one which was never signed because of family pressure. That there might be some pressure to favour his family over charity is not, think, surprising and his yielding to that pressure is consistent with family solidarity and could not be construed as undue influence. [6] Mr. Carlson had small stroke which affected his speech temporarily few days before the will was signed. The doctor has testified that in his opinion Charles Carlson could instruct and complete last will and testament at that time. [7] While Mr. Carlson may have given instructions for will in 1998 and then changed his mind, there is nothing out of the ordinary about the circumstances surrounding this will. Evidence now before the court by one of the witnesses to the will is “We sat at the dining room table and Charles looked over the will carefully and signed his name then my wife Doreen Lloyd and signed as witnesses, one after the other.” [8] My role, as is carefully detailed by Baynton J. in Dieno Estate v. Dieno Estate, 1996 CanLII 6762 (SK QB), [1996] 10 W.W.R. 375; 147 Sask. R. 14 (Sask. Q.B.), is that of gatekeeper. I am not to send the issue for trial unless evidence is brought forth which, if accepted, would tend to negative knowledge and approval or testamentary capacity. The proponents of the will have, by uncontradicted evidence, satisfactorily answered the challenge made by the applicants and have positively affirmed testamentary capacity. No issue of credibility has arisen. [9] The motion is therefore dismissed with costs.

The applicants brought a motion seeking proof of the Will in solemn form, questioning the testamentary capacity, due execution of the will and raising the issue of undue influence and coercion. HELD: The motion was dismissed with costs. The role of the Court is that of a gatekeeper. The Court will not send an issue to trial unless evidence is brought forth which, if accepted, would tend to negative knowledge and approval of testamentary capacity. No issue of credibility arose.

4_2003skqb490.txt

1993 S.H. No. 93‑4034 IN THE SUPREME COURT OF NOVA SCOTIA BETWEEN: MARLENE CAMPBELL ‑and- DANIEL WALL Respondent HEARD: At Halifax, Nova Scotia, before the Honourable Justice John Davison November 2, 1993 DECISION: November 2, 1993 WRITTEN RELEASE OF ORAL DECISION: December 23, 1993 COUNSEL: A. Pavey, for the Appellant C. Berryman, for the Respondent DAVISON, J.: (Orally) will deliver decision. It might be subject to editing and to enhancing but the parties are entitled to know as soon as possible what my decision will be. This is an appeal from the decision of Judge Levy of the Family Court for the Province of Nova Scotia, which bears date 14th day of July 1993. The appeal is taken pursuant to Section 44 of the Family Maintenance Act, R.S.N.S., 1989, Chapter 160. Section 44 (1) reads; 44 (1) An appeal lies to the county court from any decision, judgment or order of court or judge thereof. (2) The county court shall not rehear the evidence on an appeal but shall consider the record from the court. (3) Notwithstanding subsection (2), where, because of the condition of the record or for any other reason, the county court, upon application, is of the opinion that the interests of justice would be better served by hearing and determining the appeal by holding trial de nova the county court may order that the appeal shall be heard by way of trial de novo." Since the merger of the two courts, the designation of Supreme Court should be substituted for the reference in the statute to the County Court. The record before me consists of very brief decision from Judge Levy, Notice of Appeal, the original application to vary and also various memoranda of counsel submitted to the judge in the Family Court, copy of an affidavit of the respondent filed before Judge Levy and an unsigned copy of document, which purports to be an affidavit of Marlene Campbell. Specifically, no transcript of evidence has been placed before me and no affidavits have been placed before me. In his factum, the appellant counsel set out number of factual matters. The respondent, in his factum, accepts these facts but with certain stipulated exceptions. It is clear from what has been said that the appellant gave birth to child on April 20, 1985 and named the respondent as the natural father of her child. In 1985 there were several court appearances which took place before Judge J.V. MacDonald and in particular court appearance on September 30, 1985 during which the parties testified. Judge Levy in his decision sets out the operative portion of the order of Judge MacDonald. The order required the respondent to pay lying‑in expenses in the amount of $209.00 together with periodic payments for the support of the child in the amount of $100.00 every two weeks or in the alternative lump sum payment of $7,500.00 be paid by the 14th day of October 1985 together with lying‑in expenses of $209.00. am advised that the respondent elected to make the lump sum payment and did so on or about the 2nd of October, 1985. The respondent has made no further payment since that time and has not had contact with the child. In 1993, the appellant made application for variation of this order pursuant to Section 37, which reads; "Where an order for the payment of maintenance or expenses or respecting care and custody or access and visiting privileges has been made pursuant to this Act, an applicant or respondent may apply to the court to have the order varied, rescinded or suspended, and judge may vary, rescind or suspend the order on the basis that the circumstances have changed." Judge Levy held a pre‑trial conference, at which time the respondent raised a jurisdictional question, arguing that the payment of the lump sum in 1985 fully and finally discharged his responsibility for child support. The matter was adjourned with the direction from Judge Levy that an affidavit be filed along with legal memoranda on the issue. The parties filed legal memoranda, however, the trial date was adjourned and prior to the matter returning to court, Judge Levy rendered his decision, which is the subject of this appeal. In other words, there was no hearing on the merits of the application. The decision of Judge Levy is brief and basically he found that he was bound by the decision of the Appeal Division of the Supreme Court in Gillis v. Soulis,(1990), 1990 CanLII 2358 (NS CA), 101 N.S.R. (2d) 91 and stated that the issue of maintenance could not be revisited. Judge Levy held that the Gillis case stood for the proposition that lump sum, which has been paid, cannot be varied to include monthly maintenance. In my view, and with respect, Gillis v. Soulis did not enunciate such wide proposition and was confined to consideration of variation of an order made under the Children of Unmarried Parents Act. In this respect would refer to several passages in the decision of Justice Freeman. At page 92 he stated; "The issue is whether an order for lump sum payment under the Children of Unmarried Parents Act, R.S.N.S., 1967, c.32, made shortly after the boy's birth is subject to variation. It reflects conflict between concerns of an expanding social conscience and the traditional concern of the law to preserve order in human affairs." Again, at page 93, Justice Freeman states; "The scheme of the Children of Unmarried Parents Act is markedly different than that of the Family Maintenance Act..." And at page 94; "The problem in the present case is that the order in question is unique creation of the old Children of Unmarried Parents Act. It is governed by the principles of that Act, which are outside the legislative scheme of the Family Maintenance Act. Rights of the parties established under the Children of Unmarried Parents Act are not to be abrogated without clear and specific statements of legislative intention..." Again at page 97; Counsel for the applicant was unable to cite case other than Ivey v. Muir in which lump sum order under the Children of Unmarried Parents Act have ever been varied after payment. The dearth of cases as readily explained. There is no power in the courts of Nova Scotia to vary such orders. They are unique creations of particular statute, and the statute must govern. It is possible to arrive at this conclusion merely by considering the scheme of the Children of Unmarried Parents Act. However any lingering doubt is removed by s.34, which states with finality that 'this Part', the part dealing with the father's civil liability to pay maintenance, to which the Family Maintenance Act is the successor legislation, 'this part shall not apply to any punitive father who has fulfilled the terms of any order made against him with respect to the same child under Part 1'." The case of Gillis v. Soulis did not deal with the issue of whether lump sum made under the Family Maintenance Act can be varied. At page 97, Freeman, J.A. referred to the finality of the lump sum payment under the Children of Unmarried Parents Act and stated; "It was not an unjust provision when the Children of Unmarried Parents Act was in effect, and the principle of clean break which enables the parties to meet their obligations and get on with their lives is not an unjust one even by today's standards. The expectation of child to be supported by his or her parents is undeniably just, as well. In the present circumstances the general principles favouring the child's claim must yield to the clear, specific intention of the statute and the order made under it..." The case Gillis v. Soulis was not determinative of the issue before Judge Levy. In my respectful view he was in error in concluding that it was determinative. Section 37 of the Family Maintenance Act provides; "Where an order for the payment of maintenance of expenses...has been made pursuant to this Act, an applicant or respondent may apply to the court to have the order varied, rescinded or suspended, and judge may vary, rescind or suspend the order on the basis that the circumstances have changed." Section 33 of the Family Maintenance Act provides; "A court may order maintenance to be paid periodically or in lump sum or in combination thereof." There is no finality to the orders made under the Family Maintenance Act, nor was there any finality to the order made by Judge MacDonald. The order was made under Section 37 of the Act and by the clear, plain meaning of the words of the Act it is subject to variation. In this respect, agree with the decision of Butler, J.F.C. in Mahoney v. Woodside (1988) 95 N.S.R. (2d) 1. The common‑law obligation for parent to support child by maintenance is incorporated in the Family Maintenance Act in Section 8. It seems clear to me that Judge Levy erred when he thought he could not consider the application before him. It is equally clear to me that he did not consider the application before him because if he had he would have called upon the applicant and the respondent to adduce material evidence. For all the foregoing reasons, the appeal succeeds and I direct that the matter be sent back to Judge Levy for a hearing on the merits. No costs will be awarded. J. Halifax, Nova Scotia

This was an appeal of a decision which denied variation of a maintenance award where a lump sum had been previously ordered. The judge determined that since the respondent had paid the lump sum, his obligations were terminated; therefore, the Family Court did not have jurisdiction to hear the application. Allowing the appeal and returning the matter to the Family Court, that orders for child support made under the Family Maintenance Act do not have the finality which they did under other previous legislation. The order is always subject to variation in appropriate circumstances. Accordingly, the Family Court has jurisdiction to vary awards of lump sum child support made pursuant to the Family Maintenance Act.

c_1993canlii3443.txt

J. PROVINCIAL COURT PROVINCE OF SASKATCHEWAN INFORMATION 38762932 HER MAJESTY THE QUEEN v. CARL VINCENT CHECKOSIS Daniel Dahl for the Crown Donald MacKinnon for the accused JUDGMENT KOLENICK, PCJ March 30, 1999 1. The issue which has been raised in these proceedings is whether it is appropriate for the court to require the accused to commence the trial by calling evidence on a Charter voir dire, where the accused has given notice of a Charter application. This would differ from the procedure which is usually utilized, wherein the Crown commences the trial by calling its witnesses in the trial proper, and thereafter the accused applies to the court for leave to apply the Crown evidence to the Charter application, where it is appropriate to do so, and in addition to calling other defence evidence on the application. 2. have reviewed the authorities which have been filed by the Crown. note that the judgment of Finlayson, J.A., in R. v. Kutynec (1992), 1992 CanLII 12755 (ON CA), 52 O.A.C. 59; 12 C.R. (4th) 152 (C.A.), states the following propositions. 3. First, whatever procedures are utilized must not unnecessarily interfere with the inherent jurisdiction of the trial judge to control the conduct of trial. As well, rather than inventing structured procedures for Charter applications in Provincial Court trials, it is better to leave judges the discretion to determine matters such as sufficiency of notice and the extent of the offer of proof. This may be different for trial court which hears cases that have been through preliminary inquiry and detailed pretrial, and that regularly assigns trial judges to cases well before the date of the trial. 4. In the judgment, Finlayson, J.A., noted also that in Provincial Court it will be for the trial judge to decide what procedure should be followed, but at least, counsel should give timely notice to the Crown of the Charter issue, and at trial, counsel for the accused should be able to state with reasonable particularity the grounds upon which the application for exclusion is made. 5. In addition, Finlayson, J.A., indicated that in his view, it is self-evident that objections to admissibility of evidence must be made before or when the evidence is proffered. This common sense proposition is equally applicable to Charter applications to exclude evidence. Litigants, including the Crown, are entitled to know when they tender evidence whether the other side takes objection to the reception of that evidence. It is obvious that counsel for the accused is not entitled to sit back and hope that something will emerge from the Crown’s case to create Charter argument or assist in one counsel is already prepared to make. 6. The judgment noted as well that the onus is on the accused to demonstrate on balance of probabilities that he or she is entitled to Charter remedy, and must assert that entitlement at the earliest possible point of the trial. Otherwise, the Crown and the court are entitled to proceed on the basis that no Charter issue is involved in the case. 7. Furthermore, Finlayson, J.A., stated that in the interests of conducting an orderly trial, the trial judge is entitled to insist and should insist that defence counsel state his or her position on possible Charter issues, either before or at the outset of the trial. All issues of notice to the Crown and sufficiency of disclosure can be sorted out at that time. Failing timely notice, trial judge, having taken into account all relevant circumstances, is entitled to refuse to entertain an application to assert Charter remedy. 8. In addition, the judgment indicated that it must be recognized that there will be instances where the defence, through no fault of its own, cannot provide detailed summary of the evidence that it anticipates it will call in the Charter application. It may be that fairness requires that the accused be given some latitude at some stage of the trial to explore potential Charter issues which he or she had no opportunity to develop prior to trial. If fairness requires that kind of leeway, the trial judge will grant it, but must also control the proceedings to ensure that the legitimate exploration does not become fishing expedition which will only serve to waste time and delay the expeditious determination of the case. 9. Furthermore, in R. v. Loveman (1992), 1992 CanLII 2830 (ON CA), 52 O.A.C. 94; 71 C.C.C. (3d) 123 (C.A.), Doherty, J.A., made the following observations on this issue, at page 125: “A trial judge must control the trial proceedings so as to ensure fairness to all concerned and preserve the integrity of the trial process. The specific situations in which the trial judge must exercise that power are infinitely variable and his or her order must be tailored to the particular circumstances. In the exercise of this inherent power, trial judge may decline to entertain motion where no notice, or inadequate notice, of the motion has been given to the other side. This must be so even when the motion involves an application to exclude evidence pursuant to s. 24(2) of the Charter. Clearly, where Charter right is at stake, trial judge will be reluctant to foreclose an inquiry into an alleged violation. There will, however, be circumstances where no less severe order will prevent unfairness and maintain the integrity of the process.” 10. note also that in R. v. Habhab (I.) (1997), 197 A.R. 161 (Prov. Ct.), Wenden, P.C.J., was asked to consider endorsing the Charter application procedure which involved entering into voir dire at the commencement of the trial and the Crown proceeding to lead their evidence at the outset regarding the Charter application, and the substantive offence. The court dismissed this proposal, and suggested that the case authorities by implication suggest it is the obligation of the accused to lead the evidence on the voir dire. On this subject, at paragraph 45, the court made the following comments: “[45] Undoubtedly, one of the major concerns that will be raised by defence counsel is that for the most part, witnesses required for the application to exclude evidence will be the police who investigated the offence. Traditionally, counsel have dealt with police witnesses as cross-examiners. Counsel rightly or wrongly take the view that such witnesses might be less than forthcoming in the answers given. There is not in my view, any evidence, to support this belief. Defence counsel, in the event that the witness is, or appears to be adverse, can always ask the court for leave to cross-examine. In situation where an accused is trying to establish that constitutionally protected right has been breached, the court ought to give counsel more leeway in cross-examining ones (sic) own witness than is ordinarily done. Moreover, witnesses on Charter voir dire are not always necessarily police witnesses. They can be anyone who happened to be around at the relevant time, or someone with whom the accused consulted at the relevant times. Disclosure requires the Crown to make available to the defence the names of such people, and all other relevant information. Surely it must be left to defence counsel to have these people to attend as witnesses if, in their assessment, the testimony of such witnesses is required in support of the application. Furthermore, no one would suggest that the Crown examine the witnesses-in-chief, first, and then the defence cross-examine them. In light of these observations, and what has been said in the cases, one cannot see any justification for the procedure presently proposed.” 11. With all due deference, if the authorities do imply that there is an obligation on the accused to call evidence first on the Charter voir dire, in my view, this can quite properly occur by the application to it of some or all of the evidence which is already before the court and on the record on the substantive issues. The admissibility of that evidence can be reserved by the court, pending the determination of the Charter issue on its merits, and the application of s. 24 remedy, if any. 12. One of the advantages of having the Crown evidence put on the record at the outset of the trial is that it eliminates any guesswork as to the nature and quality of that testimony as it relates to the Charter application. This surely is superior from procedural standpoint than the accused calling the Crown witness at the outset on the voir dire on speculation, discovering that aspects of that evidence are unfavourable and contrary, and therefore having to attempt to convince the trial judge to grant leave to cross-examine the witness. It also avoids the possible scenario where the Crown witness evidence is led by the defence on the Charter voir dire, and then the accused having to impeach the credibility of that same witness in cross-examination as it relates to the proof of the substantive issues. 13. I must therefore conclude that the fairness of these proceedings, as well as the public confidence in the administration of justice, are best served by the Crown first leading its evidence on the charge as alleged, with the accused having leave to apply to have the evidence applied to the Charter issue, if it is appropriate to do so.

The issue was whether it was appropriate for the court to require the accused to commence the trial by calling evidence on a Charter voir dire, where the accused gave notice of a Charter application. This would differ from the usual procedure, wherein the Crown commences the trial by calling its witnesses in the trial proper, and thereafter the accused applies for leave to apply the Crown evidence to the Charter application, where it is appropriate, in addition to calling other defence evidence on the application.HELD: In R. v. Kutynec, the court made the following determinations: 1) whatever procedures are used should not unnecessarily interfere with the inherent jurisdiction of the trial judge to control the conduct of the trial; 2) instead of creating procedures for Charter applications in provincial court, it is better to leave judges the discretion to determine matters such as sufficiency of notice and the extent of the offer of proof; 3) counsel should give timely notice to the Crown of the Charter issue, and at trial, the accused should be able to state with reasonable particularity the grounds upon which the application is made; 4) objections to admissibility of evidence must be made before or when the evidence is proffered; 5) the onus is on the accused to demonstrate on a balance of probabilities that he or she is entitled to a Charter remedy; 6) the trial judge should insist defence counsel state his or her position on possible Charter issues, either before or at the outset of the trial; 7) failing timely notice, a trial judge is entitled to refuse an application to assert a Charter remedy; 8) fairness may require the accused be given some latitude to explore potential Charter issues which he or she had no opportunity to develop prior to trial; and 9) the trial judge must control the proceedings to ensure this legitimate exploration does not become a fishing expedition. In R. v. Loveman, the court said the trial judge must ensure fairness and preserve the integrity of the trial process. This may require a judge to refuse to hear a motion where insufficient notice has been given, even when the motion involves an application to exclude evidence under s. 24 of the Charter. In R. v. Habhab, the court was asked to consider a procedure which involved entering into voir dire at the start of the trial and the Crown proceeding to lead their evidence at the outset regarding the Charter application and substantive issue. The court dismissed this proposal and stated that the case law implies it is the accused's obligation to lead the evidence on the voir dire. The court was not able to justify the proposed procedure. If the authorities imply there is an obligation on the accused to call evidence first on the Charter voir dire, this can occur by the application of some or all the evidence which is already on the record on the substantive issues. The admissibility of evidence can be reserved by the court pending judgment on the Charter and any s. 24 remedy. An advantage of having the Crown evidence on record at the outset is it removes uncertainty as to the nature of the testimony as it relates to the Charter application. This is preferable to the accused calling the Crown witness at the outset on the voir dire, discovering aspects of the evidence are contrary or unfavourable, and then having to convince the court to grant leave to cross-examine. It avoids a scenario where the Crown witness evidence is led by the defence on the voir dire, and then the accused must impeach the creditability of this witness in cross-examination as it relates to the proof of the substantive issues. The court concluded the fairness of the proceedings and public confidence in the administration of justice, were best served by the Crown first leading its evidence on the charge alleged and the accused having leave to request the evidence be applied to the Charter issue, if appropriate.

b_1999canlii13927.txt

S.C.C. No. 02706 NOVA SCOTIA COURT OF APPEAL Jones, Hart and Chipman, JJ.A. BETWEEN: BRIAN LEE JARVIS and HER MAJESTY THE QUEEN Respondent Paul B. Scovil for the Appellant William D. Delaney for the Respondent Appeal Heard: March 31, 1993 Judgment Delivered: March 31, 1993 THE COURT: Appeal against conviction dismissed and appeal against sentence abandoned per oral reasons for judgment of Hart, J.A.; Jones and Chipman, JJ.A. concurring The reasons for judgment of the Court were delivered orally by: HART, J.A. The appellant, a young man in his early 20's, was convicted after a two and a half day trial before Judge Haliburton of the County Court of the offence of sexually touching a young girl under the age of 14 years contrary to s. 151 of the Criminal Code of Canada,R.S.C. 1985, c. C‑46. The first ground of appeal alleged that the trial judge was in error by permitting the complainant to testify behind a screen without first conducting a voir dire and by relying solely upon the representations of Crown counsel to the effect that she would be uncomfortable without a screen. Even if it could be said that the trial judge had improperly exercised his discretion under s. 482 (2.1) of the Code we cannot say that the fairness of the trial was in any way impaired and would find that no miscarriage of justice occurred. The second ground was that the trial judge permitted the complainant to read a statement she had given to the police to refresh her memory during cross‑examination. It was, however, the defence counsel who put the statement to her and who originally suggested that she read it over. We find no merit in this ground of appeal. The next two grounds of appeal allege that the trial judge interfered with the trial and created an impression of unfairness by posing questions to the complainant and another witness during the course of their testimony. reading of the transcript as whole, however, convinces us that no such unfairness resulted. The trial judge was the trier of fact and in many incidents it was necessary for him to obtain explanations of the evidence that had not been made clear during the direct and cross‑examination of counsel. Although excessive interference by judge with the development of the evidence by counsel should not be condoned, we cannot say that Judge Haliburton went beyond reasonable inquiries in this instance. We would therefore reject these grounds of appeal. The final ground of appeal alleges that the verdict was unreasonable and was not supported by the evidence. We have thoroughly reviewed the record of this trial and have considered the argument of defence counsel put before us and are convinced that there was evidence before the trial judge to reasonably support the conclusion that he reached. The complainant was under 14 years and no issue of consent arose. The appellant did not testify and the complainant described how he had in fact had intercourse with her under circumstances that would suggest it could well have been expected to take place. As directed by the Supreme Court of Canada in Yebes v. The Queen, (1987) 1987 CanLII 17 (SCC), 36 C.C.C. (3d) 417 we have re‑examined and re‑weighed the evidence and concluded that this appeal against conviction of the appellant must be dismissed. The appeal against sentence of six months has been abandoned. J.A. Concurred in: Jones, J.A. Chipman, J.A. CANADA PROVINCE OF NOVA SCOTIA S.C.C. NO. IN THE SUPREME COURT OF NOVA SCOTIA APPEAL DIVISION BETWEEN: BRIAN LEE JARVIS versus HER MAJESTY THE QUEEN RESPONDENT PARTICULARS OF CONVICTION 1. Place of Conviction: Yarmouth, Nova Scotia 2. Name of Judge: The Honourable Charles E. Haliburton 3. Name of Court: The County Court for District Number 4. Name of Prosecutor at trial: Robert M. J. Prince 5. Name of Defence counsel at trial: Paul B. Scovil 6. Offence of which Appellant convicted: Sexual touching 7. Section of Criminal Code under which Appellant convicted: 151 8. Plea at trial: not guilty 9. Sentence imposed: six months incarceration 10. Date of conviction: March 13, 1992 11. Date of sentence: May 15, 1992 12. If Appellant in custody, place of incarceration: Yarmouth, Nova Scotia S.C.C. No. 02706 NOVA SCOTIA COURT OF APPEAL BETWEEN: BRIAN LEE JARVIS and HER MAJESTY THE QUEEN Respondent REASONS FOR JUDGMENT BY: HART, J.A. (orally)

The appellant was convicted of sexually touching a young girl who was under the age of 14. He contended the trial judge erred by permitting the complainant to testify behind a screen without first conducting a voir dire and by relying on Crown's submission the girl would be uncomfortable without the screen. As well, he argued the judge improperly permitted the complainant to read a statement given to the police, to refresh her memory during cross-examination. Dismissing the appeal, that the fairness of the trial was in no way impaired by use of the screen, and no miscarriage of justice occurred. The statement was given the complainant by defence counsel, who suggested she read v. Allegations the trial judge interfered with the trial, thereby creating an impression of unfairness, were also dismissed as being without merit.

c_1993canlii5621.txt

nan U.F.C. of A.D. 1993 865 J.C. S. IN THE COURT OF QUEEN'S BENCH JUDICIAL CENTRE OF SASKATOON BETWEEN: MARCELLA LAMB RESPONDENT L. BURROWS for the petitioner T.F. KOSKIE for the respondent JUDGMENT DICKSON J. DATE: NOVEMBER 17, 1994 The applicant (wife) seeks an interim distributionof matrimonial property and interim support for her two children,ages 16 and 13, and an order prohibiting the respondent (husband)from contacting her and from going to her home or her workplace. In May of this year, an interim order granted the wife exclusive possession of the parties' farm home with the exception of "the tool shed and other parts of the farm yard which the husband is required to enter for the purpose of doing his farming". Both parties were ordered to have no contact with the other and the husband was ordered to pay $2,000.00 lump sum support for the children at the end of the 1994 harvest. It appears that the husband undertook to pay periodic child support if he got job off the farm. An earlier consent order forbade the husband from disposing of matrimonial property. Since then, the wife says her husband has continued to dispose of farm machinery and the 1994 crops. She says he has been earning money trucking and leasing out farm machinery for custom work on neighbouring farms. He has not offered any of the money earned to support his children. She says he harvested canola crop worth $29,400.00 which he delivered to the Wheat Pool. She believes he can pick up grain cheque for this crop whenever he wishes. He has not paid the $2,000.00 lump sum ordered in May. She now asks that she be paid half the value of the crop, $200.00 per month for each of the children, retroactive to July 1, and that her husband be denied the right to enter the tool shed and the farm yard now that he is finished farming for the year. The husband denies disposing of any matrimonial property since the date of the order, other than the canola crop which he harvested from rented land. He sold it to the Wheat Pool for $9,184.00, which, he says, is less than the cost of producing the crop. He has not yet paid most of the production costs. He denies earning any money for driving truck or for custom farm work. Any driving he has done was to help his son and he drew no wages for it. He says he is looking for work but because he is 64 years old, he doesn't expect to find any. I am not prepared to vary or extend the order of May27 and the extended order of October 19 which forbids the husbandfrom approaching the home quarter. The evidence presented by the wife is simply her assertion that her husband has been earning money which enables him to pay periodic support. He denies it. don't know who to believe. He also says the harvested crop has negative value. She doesn't know anything about the unpaid expenses. I am willing only to direct that the Registrar allot apre-trial date acceptable to both parties.

The Wife sought an interim distribution of matrimonial property and periodic maintenance for the 2 children of the marriage, aged 16 and 13. The Husband had not made an interim lump sum payment in the amount of $2,000.00 ordered in May and had undertaken to provide support monies after harvest. The Husband claimed that the value of the crop harvested was less than the farm expenses and resisted any change in the previous interim orders made. HELD: Application dismissed. The Court was not prepared to make the interim orders requested on the basis of the contradictory affidavits filed. A pre-trial was directed.

e_1994canlii4929.txt

1988 S.K. No. 2422 IN THE SUPREME COURT OF NOVA SCOTIA TRIAL DIVISION BETWEEN: JEAN MAE KEDDY, and CARL VEN McGILL, Defendant HEARD: at Kentville, Nova Scotia before the Honourable Madam Justice Elizabeth Roscoe, Trial Division, on May 16, 17, 21, 23, 24, 29 and June 26, 1991. Final post‑trial submission filed August 6, 1991. DECISION: August 27, 1991 COUNSEL: David F. Walker, Solicitor for the Plaintiff Judith F. Ferguson and Leslie J. Dellapinna, Solicitors for the Defendant 1988 S.K. No. 2422 IN THE SUPREME COURT OF NOVA SCOTIA TRIAL DIVISION BETWEEN: JEAN MAE KEDDY, and CARL VEN McGILL, Defendant ROSCOE, J.: BACKGROUND The parties to this action cohabited for approximately twelve years from 1975 to 1988. The plaintiff, Jean Keddy, is now 53 years old and the defendant, Carl McGill, is 60. The plaintiff seeks an order under the Partition Act, R.S.N.S. 1985 c. 333, for the partition and sale of two properties owned jointly by the parties, a declaration of ownership regarding personal property and a division of other property owned by the defendant based on a constructive trust. The plaintiff also claims general and special damages and costs. The parties began cohabitation in December, 1975 when Mr. McGill moved into the mobile home, owned and occupied by Mrs. Keddy and her three children from prior marriage who were then aged 15, 16, and 18. From that, time until 1986, Mrs. Keddy was employed as medical records techinician at local hopsital. For most of the years during the relationship, Mrs. Keddy's employment was full time, but for some periods of time she worked part time. During their cohabitation Mr. McGill had various jobs, including driving trucks, maintenance work and painting until 1979 when he began working as truck driver for Coastal Van Lines which entailed weekly trip to Montreal. Mrs. Keddy ceased her employment in 1986 due to health difficulties and is now in receipt of Canada Pension Disability Pension. Mr. McGill owns thirty‑one residential rental properties in various locales in the County of Kings. Nine of these properties were inherited from his father and an additional fifteen other properties were acquired prior to meeting Mrs. Keddy. While the parties lived together, Mr. McGill acquired another six properties in his own name and he has purchased one since they separated. In addition, the parties owned four separate properties in their joint names, two of which were sold while they were still together. The parties lived together in Mrs. Keddy's mobile home until 1979, and during that period she paid all of the household expenses with the exception of $20.00 per week that Mr. McGill contributed towards the groceries. He also paid for his own personal expenses including his car. Until 1982 Mr. McGill continued to pay for utilities and maintenance at his own home on Thompson Road in Waterville, but he did not live there. In 1982 he began to rent out that property. In 1979 the parties purchased piece of property in their joint names and had log house constructed on it. Each party contributed one half of the down payment and the balance was financed through mortgage, on which they each paid one half of the monthly payments. They lived in the log house until 1982, and while they were there, Mr. McGill was responsible for the payment of the oil bills, the firewood, the insurance and the electricity in addition to his own personal expenses, and Mrs. Keddy paid for the groceries, the telephone and her own personal expenses. In addition, Mrs. Keddy paid for most of the furniture, dishes and linens for the log house. When the parties moved to the log house, Mrs. Keddy sold her mobile home to her daughter and took mortgage back for the full purchase price. Her daughter made monthly payments on the mortgage until 1986 when it was sold and the balance owing at that time, in the amount of $16,700.00, was paid to Mrs. Keddy. In 1982 the parties sold the log house and purchased another property called the Saunder's House in Millville, Kings County. The Saunder's property was acquired in joint names, using the proceeds of the sale of the log house and an additional $12,500.00 by way of mortgage financing. While they lived at the Saunder's property, they continued to split the household expenses in the same manner as at the log house. Mrs. Keddy used almost all of the proceeds of the sale of her mobile home to buy new furniture for the Saunder's home and to redecorate it. She saved approximately $5,000.00 which she later invested in the Saltzman property, joint venture which will be examined in more detail later in this decision. Since the parties separated, Mrs. Keddy has continued to reside in the Saunder's property by virtue of consent order taken out in the Family Court. In addition, Mr. McGill pays the sum of $700.00 per month support pursuant to an application made under the Family Maintenance Act. When the parties first began their cohabitation, Mrs. Keddy's total income was $8.443.00 for the year 1975. Her highest year of earning from her employment was in 1982 when she earned $17,409.00. In 1984, 1985 and 1986 her income diminished due to reduction in hours worked, and in 1986 she stopped her employment altogether. Her average earnings over the twelve years the parties cohabited were $10,162.00. Mr. McGill's income tax returns for the years 1975 to 1987 indicate that he had three main sources of income; his net rental income, his income from his employment and interest income. In 1975 his total income from all sources was $8,986.00, and in 1987 his total income was $62,856.00 consisting of $39,276.00 net rental income, $9,726.000 net employment income and $13,854.00 interest income. His average total income over the years the parties cohabited was $27,486.00. In 1979 Mr. McGill commenced employment with Coastal Van and Storage Limited. This job required Mr. McGill to leave his home in Kings County, travel to Halifax and then drive truck from Halifax to Montreal and return from Montreal to Halifax later in the week. There was dispute between the parties as to how long Mr. McGill was away each week, but find, based on the evidence of Mr. Stuart Dalton, an employee of Mr. McGill's, that normally Mr. McGill left the valley on Tuesday at noon and usually returned home on Thursday night, but sometimes Friday morning. Occassionally he made trip to Newfoundland which meant he would be away for longer. He continued with this employment until sometime after the parties separated in February, 1988. On his statement of property dated November 30, 1989, Mr. McGill values all of his properties at $806,900.00. However, one of those properties was acquired since their separation, and it is valued at $74,000.00 and two of the properties listed are owned jointly with Mrs. Keddy, and they are, together, worth $68,000.00, so at the time of their separation, the property owned by Carl McGill, in his own name, was valued by him at $664,900.00. Mrs. Keddy did not present any evidence contradicting these values. In addition to the real property Mr. McGill owns equipment used in his rental business which has net book value of $21,500.00. As well, as of November 30, 1989, he held bank accounts and various term deposits and R.R.S.P.'s worth $170,321.00. The mortgages on his real property, owned at the time of separation not including the one on the property held jointly with Mrs. Keddy total $53,109.52. Mr. McGill's net worth, therefore, is approximately $804,000.00, excluding his interest in jointly held property and after‑acquired property. Mrs. Keddy's counsel has, by using Mr. McGill's financial statements through the years, determined that Mr. McGill has enjoyed real increase in his net worth of $380,760.00. Mr. McGill's counsel does not take issue with this figure. When the parties first met, Mrs. Keddy was the owner of the mobile home, furniture and car. Her mobile home was subject to mortgage. At the time of separation her assets consisted of the half interest in the parties' residence and another vacant lot, furniture and car. She had debts, excluding the mortgage on the residence of approximately $45,000, leaving her in negative net worth situation. THE EXTENT OF MRS. KEDDY'S CONTRIBUTION Most of the evidence tendered over the seven‑day trial of this matter was directed to the issue of the extent of Mrs. Keddy's work and time devoted to Mr. McGill's business. Mrs. Keddy claims that she worked approximately thirty‑five hours per week over the period of the cohabitation on behalf of Mr. Keddy, and he submits that she did little more than take telephone messages and perform few other duties that did not extend beyond "the normal call of duty". In addition to her own evidence, in this respect, Mrs. Keddy presented the evidence of four former tenants of Mr. McGill, health inspector and the area fire chief. As well, she tendered numerous photocopies of ledger sheets showing that she had personally made entries indicating rent payments by various tenants. Mr. McGill, with respect to this major issue, presented the evidence of his employee, who carried out most of the maintenance work on the buildings and an employee of the Department of Consumer Affairs, whose duties included the processing of complaints to be heard by the Residential Tenancies Board. After considering all of the evidence on this issue and the able arguments of counsel, have come to the conclusion that Mrs. Keddy made major contribution to the business of Mr. McGill by being available while he was traveling to Montreal to take telephone messages from his tenants who had requests for repairs, some of which were emergencies, which required further involvement of Mrs. Keddy and to take numerous telephone calls when apartments were advertised for rent, at which time, she provided information about the available unit and if the party was interested, obtained information from the prospective tenant in order to assist Mr. McGill in the selection of tenant. She also showed apartments to prospective tenants from time to time. find that Mrs. Keddy also contributed by assisting Mr. McGill with his bookkeeping by making entries on his ledgers that he kept for each tenant. Of the 424 pages of ledger sheets that were tendered as exhibits that pertain to the relevant period, Mrs. Keddy's handwriting appears on 174 of them. That is 41%, although it must be noted that Mr. McGill's handwriting also appears on many of those sheets. The plaintiff, however, testified that many times she would call out the relevant information and Mr. McGill would write it on the appropriate sheets. also find that Mrs. Keddy assisted Mr. McGill by helping him prepare the annual notices of rental increase. Of the rental increase notices that were available for inspection during the trial, it is apparent that Mrs. Keddy prepared 14 of them. However, am not satisfied that all of the rental increase notices were presented by Mr. McGill. With respect to dealings with the Residential Tenancies Board concerning dates of hearings, find that Mrs. Keddy had minimal involvement in that aspect of Mr. McGill's business. am also satisfied that Mrs. Keddy was the person responsible for typing the notices to quit that were given from time to time, although neither party was able to remember the number that may have been necessary in any one year. In addition to the clerical work and telephone calls, am satisfied that Mrs. Keddy assisted Mr. McGill with painting, cleaning and carrying out minor repairs from time to time through the years, more so in the beginning of their relationship. As well, she was of assistance to him by being available when some action had to be taken on his behalf, for example, on one occassion when there was fire on property that Mr. McGill used as dump and on another occassion when the health inspector required immediate entry to one of the units. Although do not agree with Mrs. Keddy's estimate that all of these tasks required thirty‑five hours per week on regular basis, find that her energy expended in the business was considerable and left her little free time. In addition to this work which was directly related to Mr. McGill's business, throughout their relationship Mrs. Keddy was totally responsible for the household duties such as the cooking, cleaning, maintaining the vegetable garden, laundry, purchasing groceries and sundries required for the home and the decorating of the homes in which they resided. As well, Mrs. Keddy purchased almost all of the furniture they used with her own funds. Mr. McGill, on the other hand, purchased the motor vehicles required by the parties and undertook some repairs to their homes. ISSUES The issues for determination are as follows: 1. Whether or not Mrs. Keddy is entitled to an interest in the assets of Mr. McGill by virtue of unjust enrichment or constructive trust, and if so, the nature and extent of that interest; 2. With respect to the Saltzman property which had been owned jointly and which was sold in May, 1987 whether any amount is payable by Mr. McGill to Mrs. Keddy representing her share in the property; 3. What is the extent of the interests of the parties in the two properties owned in their joint names, and how should those interests be realized; 4. Whether or not any of the personal effects, including disputed automobile, should be accounted for or transferred from one party to the other. 1. UNJUST ENRICHMENT CONSTRUCTIVE TRUST Mrs. Keddy claims that Mr. McGill has been unjustly enriched by virtue of her contributions of time and money during the period of their cohabitation and that she should be compensated by way of either constructive trust imposed upon his assets or damages. She claims the sum of $177,650.00 in this respect. Mr. McGill contends that the work of Mrs. Keddy was minimal and no benefit was received by him. There are four decisions of the Supreme Court of Canada that must be examined to determine this issue: Rathwell v. Rathwell, 1978 CanLII (SCC), [1978] S.C.R. 436, Pettkus v. Becker, 1980 CanLII 22 (SCC), [1980] S.C.R. 834, Sorochan v. Sorochan, 1986 CanLII 23 (SCC), [1986] S.C.R. 38 and Rawluk v. Rawluk, 1990 CanLII 152 (SCC), [1990] S.C.R. 70. The evolution of the remedial constructive trust doctrine in Canada and its application in matrimonial cases is succinctly summarized by Cory, J. in Rawluk at pp. 81 to 86. He traces the development of the law from the dissent of Laskin, J., as he then was, in Murdoch v. Murdoch 1973 CanLII 193 (SCC), [1975] S.C.R. 423 through to the unanimous decision of the Supreme Court in Sorochan and explains the failure of the doctrine of resulting trusts to address inequities in spousal property disputes because of the necessity to find common intention between the parties. Cory, J. continues by referring to the minority decision in Rathwell where Dickson, J., as he then was, reviewed the equitable basis of the constructive trust doctrine at pp. 454 to 455 where he said: "The hallmark of the constructive trust is that it is imposed irrespective of intention; indeed, it is imposed quite against the wishes of the constructive trustee. .. The constructive trust is an obligation of great elasticity and generality. Where common intention is clearly lacking and cannot be presumed, but spouse does contribute to family life, the court has the difficult task of deciding whether there is any casual [sic] connection between the contribution and the disputed asset. The court will assess the contributions made by each spouse and make fair, equitable distribution having regard to the respective contributions. The relief is part of the equitable jurisdiction of the court and does not depend on evidence of intention. As expressed by Professor Scott in an article entitled 'Constructive Trusts' (1955), 71 L.Q.Rev.39 at p.41: 'The court does not give relief because constructive trust has been created; but the court gives relief because otherwise the defendant would be unjustly enriched; and because the court gives this relief it declares that the defendant is chargeable as constructive trustee.' ... The constructive trust, as so envisaged, comprehends the imposition of trust machinery by the court in order to achieve result consonant with good conscience. As matter of principle, the court will not allow any man unjustly to appropriate to himself the value earned by the labours of another. That principle is not defeated by the existence of a matrimonial relationship between the parties; but, for the principle to succeed, the facts must display an enrichment, a corresponding deprivation, and the absence of any juristic reason ‑ such as a contract or disposition of law ‑ for the enrichment." As Cory, J. points out in Rawluk at p. 84 the validity of the doctrine of constructive trust was accepted by majority in Pettkus v. Becker and the principle was extended to commonlaw relationship. Cory, J. says that the reasons of Dickson, J. in Pettkus "clearly demonstrate the broad and equitable nature of the remedial and constructive trust and its applicability to any property dispute". The evolution of the doctrine continued with the Supreme Court of Canada's decision in Sorochan where it was determined that constructive trust remedy will also apply to circumstances where spouse has contributed not to the acquisition of property but to its preservation, maintenance or improvement. Cory, J. concludes his summary by saying, at p. 86: "These cases show that in Canada the doctrine of remedial constructive trust has been accepted for almost decade as an important remedial device whose prime function is to remedy situations of unjust enrichment." In Rawluk the majority determined that the remedy of constructive trust was available to married parties and was not precluded by operation of the Family Law Act of Ontario, 1986, the effect of which was to allow the wife property interest in her husband's farm and business which meant that she shared in the increase in value due to inflation from the date of the separation to the date of the trial. In Maclnnis v. MacMillan (1989), 94 N.S.R. (2d) 271 Hallett, J., as he then was, indicates that Sorochan affirmed the principles of the Supreme Court in Pettkus v. Becker and further clarified the law with respect to unjust enrichment and said at p. 277: From the decision in the Sorochan case, draw the following conclusions: (1) The claim for unjust enrichment is now cause of action in itself. (2) For a plaintiff to prove an unjust enrichment, the plaintiff must meet three requirements:(a) an enrichment;(b) a corresponding deprivation;(c) the absence of any juristic reason for the enrichment. (3) 'The constructive trust constitutes one important judicial means of remedying unjust enrichment.' This is quotation from p. 236 of the R.F.L. report of Mr. Justice Dickson's decision in Sorochan. He further stated: 'Other remedies, such as monetary damages, may also be available to rectify situations of unjust enrichment.' (4) In order to establish constructive trust in addition to the three requirements to prove an unjust enrichment, there must be: (a) casual [sic] connection between the contribution and the property. For example, in the case of Mrs. Sorochan, she contributed labour and ran and preserved the farm for period of forty‑two years while she lived in common law relationship with Mr. Sorochan; (b) in addition to the causal connection, the evidence must establish that the plaintiff, that is the person alleging the unjust enrichment, had reasonable expectation of receiving an interest in the property and that the defendant knew or ought to have known of this expectation. In my opinion, this would be question of fact in each case. In short, this requirement calls for the trial judge to make an assessment or, to use the vernacular language, 'a judgment call' on the evidence; and (c) to determine the question of fact whether there is connection between the contribution and the disputed asset, the Court 'must ask whether the contribution is "sufficiently substantial and direct" to entitle the plaintiff to an interest in the property in question.' This phrase is contained at p. 237 of the Sorochan decision. So much for the elements necessary for plaintiff to establish an entitlement to have constructive trust imposed on property. (5) The fifth principle coming out of the decision of the Supreme Court of Canada in the Sorochan case (not particularly important for this case) is the importance of distinguishing family cases from commercial cases. In the latter, much more substantial burden or proof would be imposed. In family cases, the Court has stated at p. 238 of the R.F.L. Report of the Sorochan case that equity must be the guide in scrutinizing contributions between couples who are married or living together and much will turn on the facts of each case. The Sorochan case has clarified the law and made clear that one can have an action for unjust enrichment. The contructive trust is simply one of the remedies available to the Court to remedy an injustice as is the making of monetary award in the event constructive trust is established on the facts. Unjust enrichment cases decided before Sorochan must be looked at carefully in light of the decision in Sorochan; in particular, if the parties to the suit had been living in common law relationship and the dispute between them arises out of that relationship." (emphasis added) In applying this step‑by‑step analysis to this case I find that Mrs. Keddy has met the three requirements to prove an unjust enrichment. find that the benefit received by Mr. McGill was both direct and indirect. Her involvement in his business directly assisted in the preservation of it and its continuation in his absence. The payment of household expenses and provision of domestic services indirectly assisted his business by allowing him to save money to reinvest in the business. For the four years the parties resided in Mrs. Keddy's mobile home Mrs. Keddy paid all of the household expenses with the exception of the $20.00 per week that Mr. McGill contributed towards the food. doubt that the $20.00 he contributed even covered his proportionate share of the grocery bill given that he was eating all of his meals there, since this was before he started to travel to Montreal. Although Mr. McGill continued to maintain his Thompson Road property during this time, apparently in case the relationship did not continue, find that that does not reduce the benefit he received by residing at Mrs. Keddy's where she paid the majority of the expenses. In addition the provision of housekeeping and domestic services was benefit to Mr. McGill. There was corresponding deprivation to Mrs. Keddy in terms of her time committment and her financial resources contributed to the household. In an annotation to Herman v. Smith (1984), 1984 CanLII 1238 (AB QB), 42 R.F.L. (2d) 154, which was approved in Sorochan, Professor James G. MacLeod wrote: The initial point raised is: Has the man received benefit? In the case, the benefit resulted from the claimant performing the normal 'spousal' services. No attempt was made to state the issue on any other basis. The rendering of spousal services amounts to valuable service. Such conclusion clearly has past references, although few cases state the issue so boldly. The difficulty, in principle, is that services may not be benefit if they are not wanted: Nicholson v. St. Denis (1974), 1974 CanLII 544 (ON SC), O.R. (2d) 480, 48 D.L.R. (3d) 344, reversed on other grounds 1975 CanLII 393 (ON CA), O.R. (2d) 315, 57 D.L.R. (3d) 699, leave to appeal to S.C.C. refused 1974 CanLII 584 (ON SC), O.R. (2d) 315n, 57 D.L.R. (3d) 699n. Some request/free acceptance or special relationship has regularly been required. The attitude of the defendant seemed to imply no request/free acceptance with the knowledge an intention to pay/be paid: see Re Spears, supra; Re Jacques (1968), 1968 CanLII 691 (NS PR), 66 D.L.R. (2d) 447 (N.S.). This point is not even explored. Rather, the fact of cohabitation and performing the services inherent in the role will amount to benefit to the other cohabittee: as to such philosophy see the Family Law Reform Act, R.S.). 1980, c. 152, s. 4(5). The detriment to the plaintiff was tied simply to the use of her time and energy. It seems to follow from the reasons that no one should expect, in general, spousal services for free. They are given, in the absence of an indication to the contrary, with the expectation of something in return and should be received as such." (emphasis added) Professor Ralph Scane, in Relationships Tantamount to Spousal Unjust Enrichment and Constructive Trusts (1991), 70 C.B.R. 260 says at p. 271: "It now appears that supplying 'domestic' services in the operation of the household and the raising of the children of the union, standing alone, can constitute deprivation to the plaintiff and an enrichment to the defendant. Similarly, expenditures of money on supplies and services needed for day to day living on groceries and drycleaning, for instance and which, by the very nature of the object of the expenditure, are not now represented by property into which the money can be traced, can constitute deprivation and confer enrichment." For authority for these statements Scane cites Sorochan, Crisp v. Banton (1988), 18 R.F.L. (3d) 24 (Ont.H.C.) and Murray v. Roty (1983), 1983 CanLII 1942 (ON CA), 147 D.L.R. (3d) 438 (Ont.C.A.). similar finding was made in Pirie v. Leslie (1988), 1988 CanLII 7212 (MB QB), 29 E.T.R. 246, where during nine‑year cohabitation the petitioner was responsible for the operation of the household as well as providing some help on the small farm, while the respondent was otherwise employed. In that case there were no children involved, so disagree with Mr. McGill's counsel's suggestion that Sorochan can be distinguished on the basis of the length of the relationship and the fact that there were children of the union. Finally, find that since Mrs. Keddy was under no obligation, contractual or otherwise, to provide any services of either housekeeping or business nature to Mr. McGill during their relationship, there is no juristic reason for the enrichment. therefore find that Mrs. Keddy has established an unjust enrichment, and the next question is whether or not the unjust enrichment should be remedied by use of constructive trust or whether rectification by an award of monetary damages is more appropriate in this case. As pointed out in MacInnes v. MacMillan, in order to establish constructive trust, Mrs. Keddy must prove first of all that there is causal connection or nexus between her contribution and the property now in dispute which is registered in the name of Mr. McGill. Professor Scane, in his article on this subject (supra) at p. 287 says: "In Sorochan v. Sorochan, the Supreme Court of Canada reminded us that 'constructive trust' and 'unjust enrichment' are not synonymous expressions. The constructive trust is one remedy which may be found appropriate when finding of unjust enrichment is made. As this proprietary remedy, unlike mere money judgment, may give preference to plaintiff over other creditors of the defendant or, as Rawluk v. Rawluk, may cause readjustment in the financial positions of spouses as they enter upon statutory redistribution of wealth upon marriage breakup, the reasons for choosing such remedy should be articulated as fully as possible. Certainly present treatment of restitutionary theory in Anglo‑Canadian legal writing treats proprietary remedies as the exceptional cases, not as the general rule." In his article Professor Scane goes on to indicate the advantages to plaintiff who receives proprietary remedy instead of monetary remedy after establishing clear link between the contribution and specific property such as the priority over other creditors in cases of an insolvency of the defendant. Professor Scane goes on to question the process by which one concludes that there is causal connection to specific property and suggests, at p. 289: "...that unjust enrichment created by receipt of the benefit of services, which enables defendant to avoid expense and thus accumulate and maintain wealth, seeps throughout all of the assets of the defendant." In Causal Connection in Constructive Trusts (1986), Est. Tr. Q. 161, Professor Keith Farquhar, in examining the effect of the decision in Sorochan, says at p. 178: Implicit in the above ruling, is further laying to rest of the proposition that in order to succeed in constructive trust plaintiff must prove that his or her contributions resulted in an increase in the value of the defendant's holdings." and further at p. 180: Another particularly interesting ruling in Sorochan is that 'the reasonable expectation of the claimant in obtaining an actual interest in the property as opposed to monetary relief, constitutes another important consideration in determining if the constructive trust remedy is appropriate.' While the phraseology here is not as unambiguous as it might be, it strongly suggests that even if there is no causal connection between the plaintiff's contributions and the property in question, constructive truct may be imposed on the property if the plaintiff entertained reasonable expectations in that regard." The effect of the Sorochan case is also dealt with by Professor D.W.M. Waters in The Constructive Trust in Evolution Substantive AND Remedial (1991), 10 E. T.J. 334. He says that although Sorochan indicated that constructive trust is only one juducial means of remedying unjust enrichment, it did not answer the question of when is constructive trust the appropriate remedy. Waters says that that question was answered in Lac Minerals Ltd. v. International Corona Resources Ltd., 1989 CanLII 34 (SCC), [1989] S.C.R. 574. He says, at p. 350: The second notable point about this judgment is the answer supplied to the question of when it is appropriate for the court to grant proprietary relief. constructive trust, LaForest, J. said, should be awarded only when it is appropriate and 'in the vast majority of cases' it will not be. The question is whether the plaintiff should have the additional rights that flow from his being awarded an interest in property and that he would not have with personal remedy. The learned judge thought the circumstances calling for the granting of proprietary remedy include and they are all familiar the bankruptcy of the defendant, the increase in value of the disputed assets, and the specific and unique character of those assets or the court's difficulty in putting value upon them. These circumstances, together or singly, go to the issue of awarding particular property to the plaintiff, but it may also and very occasionally be correct, he says, to have in mind the moral quality of the defendant's act. For instance, conscious wrongdoing by the plaintiff that on the facts of the case is offensive to the court would come within that last situation. However, there is one remark in this judgment which in my opinion could dominate the 1990s, and it is the substance of the first of the questions that it was earlier said would here be discussed. La Forest J. said this: 'The constructive trust awards right in property, but that right can only arise once right to relief [i.e., "a valid restitutionary claim"] has been established.'" Although Farquhar and Scane suggest that the courts should infer causal connection or reasonable expectations that result in the finding of constructive trust, agree with the conclusion of Waters that Lac Minerals supplies the answer as to whether remedy should be in rem or in personam in this type of case. It is not necessary, in this case, to make any inferences with respect to causal connection or reasonable expectations of the parties. The defendant, in this case, has sufficient assets, both liquid and immovable, to satisfy judgment for damages for unjust enrichment. This is not situation where bankruptcy, intervening creditors or third parties are involved which require the imposition of constructive trust. monetary award is the appropriate remedy for the unjust enrichment that have found, and the question then becomes what the amount of that award should be. With respect to the amount that should be awarded to remedy the unjust enrichment, am in agreement with the method used in Murray v. Roty (1983), 1983 CanLII 1942 (ON CA), 34 R.F.L. (2d) 404, decision of the Ontario Court of Appeal which was approved (at p. 45) in Sorochan. The trial judge, in case dealing with an eight‑year cohabitation, awarded the plaintiff forty percent increase in the value of the equity in the homes and twenty percent of the value of the increase in the equity of the farm. Cory, J.A., as he then was, in his conclusion, says at p. 418: The appellant contended that there was no relationship between. the value of the services performed by Murray and the award to her of her share in the increase of the value of the properties. Once again, cannot accept that submission. It would seem to be most appropriate to award Charlotte Murray portion of the increase in the value of these properties. Her work was directed towards their acquisition and improvement. In light of the relationship that existed between the parties, it was most fitting and equitable result. In the circumstances of this case it was reasonable to base the award on the increase in the value of the properties: see, for example, Cooke v. Head, [1972] W.L.R. 518 at 521, [1972] All E.R. 38 (C.A.). There is no doubt that the extent of the interest must be proportionate to the contribution of the claimant: see Pettkus v. Becker, supra; at pp. 852‑53. Here the contributions were unequal. However, the trial judge carefully considered the situation as whole and his award was correct and proper one. In relationship such as this one, as in matrimonial case, the court should not determine the issue of division solely on the basis of the money contributions of each of the parties." similar approach was taken in Everson v. Rich (1988), 1988 CanLII 5225 (SK CA), 53 D.L.R. (4th) 470 (Sask. C.A.). This case dealt with cohabitation of seven years during which the appellant worked for some periods and contributed most of her earnings to household expenses. She also provided domestic services. The respondent had increased his net worth during the relationship from $17,000.00 to $45,000.00. After determination that there was no sufficient nexus between the provision of the appellant's services in the acquisition of the property to entitle her to relief by way of constructive trust, Sherstobitoff, J.A. said at p. 475: While, as noted above, monetary damages in such cases have traditionally been measured by the market price of domestic services, there is no reason why they cannot be measured as suitable proportion of the increase in value of the assets of the person who has been unjustly enriched. It is at this point, assessment of damages, that one takes into account and values the benefits received by the appellant from the relationship. In this case, considering the value of the assets which each of the parties brought into the relationship; the value of the assets which each of the parties owned at the termination of the relationship; their respective contributions by way of services and money to the relationship; and the value of benefits received from the relationship by each of them, the appellant is entitled to damages in the amount of $10,000." The award, in that case, represented roughly thirty‑five percent of the increase in the value of the respondent's property. As indicated above, the value of Mr. McGill's property increased by the amount of $380,760.00 during the twelve‑year relationship with Mrs. Keddy. By her efforts in helping to support him during the years they lived in her mobile home, performing the household duties over the entire relationship, and through her contribution to his rental business, find that it is appropriate in the circumstances to award her damages representing twenty‑five percent of the increase in his assets, that is the amount of $95,190.00. 2. THE SALTZMAN PROPERTY In August, 1986 Mr. McGill and Mrs. Keddy purchased property in South Berwick in their joint names for the sum of $13,000.00 plus expenses of $256.50. The property was very run down and their intention was to renovate it and sell it for profit and divide the profit between them. Mrs. Keddy paid $5,000.00 of the purchase price with money she had received when her daughter paid out the mortgage on the mobile home. Mrs. Keddy borrowed the balance of $8,000.00 from her bank. There is no evidence of who paid the $256.50 legal fees. From August, 1986 through to May, 1987 Mr. McGill and his employee, Stewart Dalton, worked on the renovations which were very extensive. On May 8, 1987 the property was sold for $35,500.00. Although the original plan had been that Mrs. Keddy would also work on the property, she did not. At the time the property was being renovated, Mrs. Keddy had just been released from the Victoria General Hospital after having sufferred breakdown. Her evidence is that she didn't work on the property because it was too cold there, but Mr. McGill and Mr. Dalton indicated that the property was heated through the winter months. The net proceeds of the sale, after paying the real estate commission, legal fees and property tax adjustment, were $34,395.40. From that the bank loan of Mrs. Keddy was paid in the amount of $8,000.00, although no adjustment was made for the interest which was deducted from her bank account. The balance of the proceeds was retained by Mr. McGill, and portion of the proceeds was later lent to friend of the parties. That friend later paid $1,000.00 to Mrs. Keddy and the balance to Mr. McGill. Therefore, Mrs. Keddy has received only $1,000.00 from the proceeds of the sale of the Saltzman property. When Keith Forsyth, C.A. prepared Mr. McGill's 1987 tax return and financial statements, he showed that Mr. McGill owed debt of $14,712.00 to Mrs. Keddy as result of the Saltzman transaction. Mr. Forsyth arrived at that figure by deducting from the net proceeds of the sale after the loan of $8,000.00 was paid, the sum of $9,433.53 representing the expenses paid by Mr. McGill during the renovations including Stewart Dalton's wages, invoices for materials, electricity and fuel. He also deducted the sum of $1,000.00 which Mrs. Keddy had received from the repayment of the loan by their friend and further sum of $1,250.00 which he thought Mrs. Keddy had retained from the proceeds of the sale. However, the evidence of Mr. McGill, at the trial, indicates that Mrs. Keddy paid back that $1,250.00 to him. Therefore, the proper amount of the loan should have been $15,961.87. Mr. Forsyth testified that when he did the calculations to determine the amount of money owing to Mrs. Keddy, he had all of the receipts relating to expenses paid by Mr. McGill in relation to the renovations. He also had all of the information regarding Mr. Dalton's salary. However, in 1988 when Mr. McGill's tax return was prepared, his financial statement showed that the loan was no longer in existence. It had not been paid off. Mr. Forsyth and Mr. McGill did recalculation of the transaction and decided that not all of Mr. Dalton's time spent on the property had been included the previous year, not all of the materials supplied by Mr. McGill, from his own supply, had been included and that they had not calculated Mr. McGill's own labour. After the recalculation, they determined that the net result was that there had been loss on the sale of the building and, therefore, that eliminated the loan owing to Mrs. Keddy. In this action Mrs. Keddy is claiming the sum of $14,276.79 as her share of the proceeds of the Saltzman property. That figure was arrived at by allowing Mr. McGill the sum of $10,000.00 for the total cost of the repairs to the property, including labour, and dividing the "profit" equally after allowing Mrs. Keddy the balance of her deposit in the amount of $4,000.00. She has also claimed interest at ten percent for four years. Mr. McGill denies that there is any balance owing to Mrs. Keddy as result of the sale of the Saltzman property. In relation to this matter, find it quite incredible that Mr. McGill did not have all of the receipts and information with respect to his costs in renovating the property available for his accountant when his 1987 tax return was prepared. There is no doubt that the purchase of this property was intended to be joint venture. Mrs. Keddy put up the money and Mr. McGill performed the labour. Given all of the evidence with respect to Mr. McGill's financial dealings and his careful investing, do not believe that he would have sold this property at loss or that he failed to claim, on his income tax return, allowable expenses for 1987. find that both Mr. McGill and his accountant knew that there was an amount owing to Mrs. Keddy as result of the Saltzman transaction, and the books were changed in 1988 only as result of the difficulties in the parties' relationship that had arisen in that year. find, however, that Mr. McGill should be allowed to claim an amount for his labour on the property since Mrs. Keddy did not contribute any labour. The sheets he filed, showing his days worked on the property, indicate that he worked total of ninety‑two days. Although he had claimed the hourly rate of $10.00 per hour for his labour, it is more appropriate to use the same rate of pay he paid his handyman, Mr. Dalton, that is $7.00 an hour. Assuming eight‑hour days, he should be credited with the sum of $5,152.00 for his labour. The calculation of the profit, therefore, is as follows: Net proceeds received at closing $34,395.40 Less: Bank loan 8,000.00 Expenses paid by Mr. McGill 9,433.53 Mr. McGill's labour 5,152.00 Sub‑total $11,809.87 Less: Refund of balance of deposit to Mrs. Keddy 4,000.00 Profit 7,809.87 Therefore, each party is entitled to receive the sum of $3,904.93 as their share of the profit on the sale of the Saltzman property. Mrs. Keddy is entitled also to the return of the balance of the deposit she made in the amount of $4,000.00. The result is that Mrs. Keddy should now be paid the sum of $7,904.93 by Mr. McGill. will deal with the claim for interest at the conclusion of this decision. 3. JOINTLY HELD PROPERTY The parties currently own two properties as joint tenants. One of these is the Saunder's property at Waterville which they purchased in 1982 as their residence. The parties made an equal contribution to the down payment from the sale of their previous home, and they contributed equally to the mortgage and other expenses. Mrs. Keddy has been living in the property since shortly after the separation. The parties agree that the property has fair market value of $60,000.00, and was subject to mortgage of approximately $10,000.00. They agree that the equity in this property should be divided equally. They do not agree, however, on the method of division. Mr. McGill suggests that the property be sold, and after payment of expenses relating to the sale, that the proceeds be divided. Mrs. Keddy, however, wishes the option of remaining in the property and buying out Mr. McGill's interest. find that his interest is $25,000.00 and that it would be appropriate to allow Mrs. Keddy the option of purchasing his share for that amount. The option shall be open for thirty days after the date of this decision. If she does not elect to purchase the property, the property shall be sold in accordance with the provisions of the Partition Act. make the same finding with respect to the Millville lot, owned jointly by the parties and valued by them at $8,000.00. It is not subject to any encumbrances. If Mrs. Keddy wishes to buy Mr. McGill's interest in that property for the sum of $4,000.00, she shall have thirty days from the date of this decision to exercise that option. In respect to both properties, if Mrs. Keddy elects to purchase Mr. McGill's interest, she shall be entitled to do so by having the $29,000.00 deducted from the amount owing, by Mr. McGill, to her as result of the unjust enrichment award made above. 4. PERSONAL EFFECTS The major item of personalty that is in dispute is 1981 Cadillac which was purchased in 1982 or 1983 by Mr. McGill for $13,000.00. Mrs. Keddy claims that the Cadillac was gift from Mr. McGill to her. Mr. McGill submits that he retained ownership of the Cadillac and simply allowed her to use it during the time they resided together. The registration remained in Mr. McGill's name, and he paid for the insurance and maintenance, while Mrs. Keddy paid for the gas. After the parties separated Mrs. Keddy removed the Cadillac from Mr. McGill's storage barn, and after driving it for while, hid it in some unknown location for several months. It was later found in Stewart Dalton's driveway without tires or rims on the rear end. The car had rusted badly and was not in condition in which it could be driven. find that Mrs. Keddy has the onus of proving that gift was made and further find that she has failed to meet the onus of proving intention to make gift of the automobile. therefore declare that the automobile is owned by Mr. McGill. During the trial of this matter Mrs. Keddy presented list of items she said were in the possession of Mr. McGill that she claimed ownership of. Many of the items were of such small value that it would be ridiculous to make declaration of ownership. For example, she claims broken lawn rake which she estimates is worth $15.00 and Christmas tree stand she says is worth $5.00. Mr. McGill also claims an ownership interest in some of the items in possession of Mrs. Keddy. find that there is insufficient evidence in relation to any of the personal effects in dispute to make finding of ownership, and therefore it is appropriate to set off the claim that each has in relation to these items against the other and order that each party shall retain ownership of the items currently in their possession. CONCLUSION For these reasons the plaintiff shall be entitled to enter judgment against the defendant for the following amounts: On the claim for unjust enrichment $95,190.00 From the proceeds of Saltzman property sale 7,904.93 Sub‑total $103,094.93 Pre‑judgment interest 42,128.87 Total $145,223.80 The pre‑judgment interest is calculated from the date of separation, February 1, 1988 to September 1, 1991 at the rate of ten percent per annum, compounded yearly (see Hannah v. Canadian General Insurance Company (1989), 92 N.S.R. (2d) 270). If Mrs. Keddy elects to purchase the interests of Mr. McGill in the Saunder's property and the Millville property, she must signify in writing to Mr. McGill's counsel on or before October 1, 1991. If she does so elect, Mr. McGill may deduct the sum of $29,000.00 from the above‑noted total. Mr. McGill shall execute all documents required for the transfer of title which shall be prepared at the expense of Mrs. Keddy. Mrs. Keddy shall be responsible for any other costs associated with the transfers of the properties. From the date of the transfer Mrs. Keddy shall be responsible for all taxes and other encumbrances, but up to the date of the transfer, the parties shall be equally liable therefor. With respect to costs, since the total claim put forward by Mrs. Keddy, in her pre‑trial brief was approximately twice the amount ordered, she shall be entitled to one half of her party and party costs based on tariff "A", scale with the amount involved of $145,223.80 which would be $5,329.00 (one half of $10,658.00) plus disbursements to be taxed. This ruling on costs is subject to submissions which may be made by counsel respecting any pre‑trial offers to settle made by Mr. McGill or Mrs. Keddy. J. HALIFAX, NOVA SCOTIA August 27, 1991 1988 S.K. No. 2422 IN THE SUPREME COURT OF NOVA SCOTIA TRIAL DIVISION BETWEEN: JEAN MAE KEDDY, and CARL VEN McGILL,

The parties lived together for some 12 years before separating in 1988. The plaintiff was 53 and the defendant 60. The plaintiff sought an order under the Partition Act for the partition and sale of two properties owned jointly and a division of property owned by the defendant based on a constructive trust. The defendant owned and operated residential rental properties. The plaintiff, who had stopped working as a medical records technician in 1988, maintained the household and assisted in the business by answering phones, bookkeeping, showing apartments and helping with minor repairs. (1) that the plaintiff met the three requirements to prove an unjust enrichment by virtue of the plaintiff's contributions of time and money, namely (a) an enrichment, (b) a corresponding deprivation, and (c) the absence of any juristic reason for the enrichment. The proper remedy was an award of monetary damages representing 25% of the increase in the value of the defendant's assets during the relationship, not the imposition of a constructive trust; and (2) jointly held properties were to be sold pursuant to the Partition Act, unless the plaintiff elected to buy out the defendant's one half interest within 30 days. Prejudgment interest was calculated from the date of separation to September 1, 1991, at 10% per year.

c_1991canlii4362.txt

J. Date: 2001/06/13 Docket: S.H. No. 155707 [Cite as: Keating v. Nova Scotia (Attorney General), 2001 NSSC 85] Province of Nova Scotia Freedom of Information and Protection of Privacy Act Subsection 41(1) IN THE SUPREME COURT OF NOVA SCOTIA and IN THE MATTER OF AN APPEAL PURSUANT TO SECTION 41 OF THE FREEDOM OF INFORMATION AND PROTECTION OF PRIVACY ACT S.N.S. 1993, c.5 HEARD BEFORE: The Honourable Justice David W. Gruchy PLACE HEARD: Halifax, Nova Scotia DATE HEARD: January 29 30, 2001 DECISION: June 13, 2001 COUNSEL: W. Dale Dunlop and Ken Mahoney a/c for Mr. Keating Edward A. Gores for the Attorney General Anne S. Derrick, Q.C. for the third party (name not to be known) GRUCHY, J.: [1] This is an appeal by Lee Keating (Keating) pursuant to the provisions of the Freedom of Information and Protection of Privacy Act, S.N.S. 1993, c.5 (the Act). The appeal is taken from a decision of Robert Doherty, Freedom of Information and Protection of Privacy Coordinator of the Department of Justice, dated October 16, 1998, whereby the appellant was denied access to information requested. FACTUAL OVERVIEW [2] In 1994 and earlier there had been in Nova Scotia public allegations that physical, sexual, and other abuse had occurred in certain provincially operated institutions for youth correction and protection. As result of these public complaints in December, 1994, the Justice Minister of Nova Scotia, Bill Gillis, announced an investigation into these allegations. He appointed former Chief Justice of New Brunswick, the Honourable Stuart Stratton, Q.C. to investigate the matters. In June, 1995, Mr. Stratton reported that at least 89 former residents of the three institutions might have been abused. Among the institutions investigated by Mr. Stratton was the Shelburne Youth Centre (formerly the Nova Scotia School for Boys) at which Keating had been employed for many years. [3] In the conduct of the investigation, Mr. Stratton arranged to have statements taken from former residents of the institutions. He employed Facts-Probe Incorporated, operated by Harry Murphy and Mr. Murphy's son Duane, to obtain these statements. On Mr. Stratton's instructions the investigators made undertakings of confidentiality to former residents of the various institutions who gave the statements. [4] At the conclusion of Mr. Stratton's investigation he filed his final report. key recommendation of that report was that an alternative dispute resolution (ADR) process be established whereby former residents claiming to have been abused could be compensated for that abuse. [5] Mr. Harry Murphy described in paras. 5, 6, 7, and of his affidavit the assurances given to former residents as follows: 5. Throughout the Stratton Investigation, Duane and assured victims that the investigation was confidential process and that their statements would not be circulated elsewhere without their permission. Some individuals inquired as to whether they would be compelled to testify as result of giving statement to Justice Stratton. They were consistently assured that they would not. 6. Issues and assurances related to confidentiality were normally dealt with as preliminary matter prior to any interviews. No written guarantee of confidentiality was provided, nor was any written form of release used or obtained during the Stratton Investigation. 7. During the Stratton investigation, from December 1994 to June 1995, reported only to Justice Stratton. All Statements obtained from victims were provided only to Justice Stratton, although some were later provided to the Provincial Department of Justice following submission of Justice Stratton's report and after victims signed release form, sample of which is attached to my Affidavit as Exhibit "A". 8. The Stratton Report was released on June 30, 1995. copy of that Report is attached to my Affidavit as Exhibit "B". Justice Stratton explained his rationale and approach to preserving confidentiality of victims in his report. Beginning at page (iii) of the introduction he states: "The proposed investigation, in addition to being time and cost effective, was to have another significant positive feature. It would be carried out in private. Victims would not have to testify in public forum as several had already been required to do in the criminal trials of some of the perpetrators of the abuse. Rather, the victims of abuse would be able to tell their stories in private and without being made into public spectacles. The process was designed to avoid making these individuals victims all over again. The terms of reference stressed the importance of avoiding the revictimization of the victims by the process and expressly provided that the investigation was not to take place in public forum. Moreover the identities of victims were to be protected as far as possible." 9. Later in the concluding comments of his Report, at page 99, Justice Stratton states: "Many of the complainants who came forward did so only because of the assurances of confidentiality that was given to them. They told us in clear terms that they would not have spoken to us otherwise. This commitment to confidentiality must be honoured." [6] The Province of Nova Scotia accepted Mr. Stratton's recommendation and in July of 1995, the Province through the Justice Minister announced an ADR process. Although initially one lawyer was to be retained to represent all claimants, the program was amended to allow other counsel to be retained by claimants. Negotiations were conducted between the Province and various counsel and on April 20, 1996, Memorandum of Understanding (MOU) was completed, effective June 17, 1996. This MOU established guidelines and the method of "adjudicating" claims. There was no provision in the MOU whereby persons against whom allegations of abuse had been made would be afforded standing; Mr. Stratton had not addressed that subject. The MOU established guidelines for compensation and for the provision of counselling services. The Department of Justice in its submission to me described the ADR process as "... summary process driven by the applicants/complainants." [7] (The MOU and the various submissions and affidavits filed herein by or on behalf of the Province referred to the former residents of the institutions who complained of physical and/or sexual abuse as either "victims" or "Survivors". Because of the pejorative and prejudicial implications of those words will refer to them as "claimants".) [8] In the event the Province did not accept claim method of review was established. The review process did not include an opportunity for persons against whom allegations had been made to respond. [9] The Province has submitted that throughout the Stratton inquiry, the ADR process and all investigations thereafter or arising therefrom assurances of confidentiality were extended to all informants. [10] Subsequent to the release of the Stratton report in June 1995, the Department of Justice retained Facts-Probe Inc. to conduct further interviews to obtain information for employee discipline, possible criminal prosecution and ultimately to process insurance claims. In addition, in the spring of 1996, further interviews were conducted for use in the ADR process. The statements taken by Facts-Probe Inc. were made available to applicants and their counsel. Approximately seven or eight hundred persons were interviewed by Facts-Probe Inc. Releases were to be signed by all persons interviewed which releases contained consent for use of the statement for the purposes specifically set forth therein. [11] On or about December 13, 1996, Facts-Probe Inc., through Mr. Harry Murphy, withdrew its services from the Department of Justice as result of concern about possible conflict between the obligation undertaken pursuant to instructions of Mr. Stratton and those of the Department of Justice. Such conflict arose as result of the undertakings of confidentiality originally extended as compared to the amended undertakings extended by the Department of Justice. [12] In November of 1996, the ADR process was suspended. The Province apparently recognized the enormity of the task it had undertaken in this process. Amy Parker, lawyer of the Department of Justice of the Province of Nova Scotia who was assigned to the "Compensation for Institutional Abuse Program" filed an affidavit in this proceeding and in para.10 spoke of the temporary suspension of the program as follows: 10. On November 1, 1996 the Compensation process was temporarily suspended to allow the Province an opportunity to review and modify the compensation process. By letter dated December 6, 1996, attached to this my Affidavit as Exhibit "C", Jay Abbass, then Minister of Justice, assured victims and their counsel that the Province would remain committed to providing confidential compensation process upon its resumption, subject to modifications to allow the Province to fulfill its other related responsibilities, including employee discipline and child protection. [emphasis added] [13] will examine more fully the effect of the amendments of the process below. In many respects as of December 6, 1996, the ADR process may be considered have commenced anew. As of that date all applicants were required to sign new form of release. will detail below the development of the form of release then required. [14] As result of the number of complainants who came forward under the ADR process the Department of Justice (according to the Province's submission) transferred the bulk of the investigative work to its internal investigation Unit (IIU) for the processing of claims. do not have before me the terms of reference of IIU, but in 1998 those terms were expanded to include the investigation of alleged fraudulent claims. [15] It is not clear on the evidence before me when the Royal Canadian Mounted Police first became involved in the current investigations of institutional abuse. Inspector Atkins testified that the police force had been involved in 1992 in the investigation of one Patrick MacDougall for sexual offences. (Parenthetically, note that Keating had reported Patrick MacDougall initially which led to that prosecution.) Inspector Atkins testified that the Royal Canadian Mounted Police had urged the Province not to proceed with the compensation program until thorough criminal investigation had been completed. Inspector Atkins' opinion was that offering compensation would potentially hinder criminal investigation. concluded from Inspector Atkins' testimony that was precisely what did occur. [16] In December of 1995, the Royal Canadian Mounted Police formed Task Force (Operation "HOPE") whose mandate was to conduct investigations into abuse alleged to have occurred within the various Nova Scotia youth centres. IIU and Operation "HOPE" then established liaison with one another whereby information was exchanged. [17] The ambit of the Operation "HOPE" investigation was restricted to the allegations of abuse. Operation "HOPE" cooperated with various departments of the Province which have an interest in the investigation of institutional abuse, including the Department of Justice and the Department of Community Services. Fraudulent claims arising from the ADR process are investigated by the Criminal Crime Section of the Royal Canadian Mounted Police and according to Inspector Atkins it was anticipated that approximately 150 compensation program fraud complaints will be given by the Province to the Royal Canadian Mounted Police. [18] The degree to which the various roles of the R.C.M.P., the Department of Justice, the Department of Community Service and the ADR Program became meshed and interchangeable is clearly set forth in paras. 11-33 of the affidavit of Inspector Atkins: 11. The investigation unit of the Department of Justice assigned to conduct the administrative investigations for employee discipline was formed in July 1995 under the direction of Mr. Robert Barss, and is known as the Internal Investigation Unit (IIU). The IIU, until August 1, 1998, also conducted investigations to validate compensation claims, after which time separate unit was formed known as the Validation Investigation Unit (VIU). The compensation program is under the direction of Mr. Michael Dempster. 12. The investigation material accumulated by both the IIU and the VIU is contained within single repository within the Department of Justice. The majority of information in that repository is electronically stored in Canadian Law Enforcement Information Management System (CLEIMS) data base situate in the IIU offices on the 9th floor, Bank of Montreal Building, 5151 George Street, in Halifax. Information not stored in the CLEIMS data base is in hard copy (paper) or on videotape. 13. Staff Sergeant James Brown, member of the RCMP, created the Operation "HOPE" task force in December 1995, and has since its inception been the primary investigator. As primary investigator, Staff Sergeant Brown maintains operational control over all aspects of the investigation by assigning investigative tasks to other investigators and reviewing the results of all investigative steps undertaken, thereby remaining cognizant of all information pertinent to the investigation. 14. have been advised by Staff Sergeant Brown, and do verily believe, that approximately 70% of the victims of abuse who have applied to the compensation program have also made criminal complaints of abuse to Operation "HOPE". small number of alleged victims of abuse have made compensation claims to the compensation program, but have not made criminal complaints to Operation "HOPE". smaller number of alleged victims have not made compensation claims to the compensation program, but have made criminal complaints to Operation "HOPE". This information is based on the fact that during the past two years Operation "HOPE" has frequently exchanged with the IIU lists of complainants and victims and other information relevant to their respective investigations. 15. have been advised by Staff Sergeant Brown, and do verily believe, that based on the exchanged lists of complaints and victims, the vast majority of persons who have made compensation claims, and whose complaints are the basis for the government employee discipline investigations, are the same as those persons who have made criminal complaints of abuse to Operation "HOPE". 16. have also been advised by Staff Sergeant Brown, and do verily believe, that the vast majority of those persons against whom allegations of institutional abuse have been made in compensation claims are the same as those persons against whom allegations of institutional abuse have been made in criminal complaints. 17. On May 12, 2000, was advised by Staff Sergeant Brown, and do verily believe, that since December 1995, in the course of its criminal investigations, Operation "HOPE" has interviewed, and taken video-taped statements from, more than 874 persons claiming they were subjected to some form of institutional abuse while resident at one or more of the Nova Scotia Youth Detention Centres and/or residential Schools. Most of those interviewed have alleged they were abused while they were resident at Shelburne Youth Centre, formerly known as the Nova Scotia School for Boys, which is one of the five Nova Scotia Youth Detention Centres and/or residential Schools. 18. have also been advised by Staff Sergeant Brown, and do verily believe, that allegations of abuse have been made against approximately 652 named and unnamed persons. 19. am aware that if complainant from whom Operation "HOPE" obtained video-taped statement also signed "Consent to Release" form, Operation "HOPE" provided copy of the video-taped statement to the IIU when requested to do so. On July 14, 1999, Staff Sergeant Brown advised me, and do verily believe, that since December 1995, Operation "HOPE" has provided approximately 453 video-taped statements to the IIU, and provided approximately 33 video-taped statements to the VIU. 20. Ms. Krista Bayart is an employee of the Nova Scotia Department of Justice and assigned to the compensation program as document research officer, providing research assistance to the IIU and the VIU, and has been so employed since September 1997. 21. Ms. Bayart reports to the Director of the compensation program, Mr. Michael Dempster, and the duties she performs include researching the CLEIMS data base as well as original provincial government and institutional documents, and writing memoranda and briefs in relation to information located. 22. have been advised by Ms. Bayart, and do verily believe, that during the course of the IIU and VIU investigations, approximately 757 persons who have submitted compensation claims have been interviewed by the IIU and the VIU investigators, and have provided video-taped statements, or, as in at least one instance, an audio-taped statement. 23. When requested to do so by Staff Sergeant Brown, the IIU and the VIU provided Operation "HOPE" with copy of video-taped statements taken by the IIU or the VIU. On May 12, 2000, Staff Sergeant Brown advised me, and do verily believe, that since December 1995, approximately 447 video-taped statements have been provided to Operation "HOPE" by the IIU and the VIU. 24. am aware that Operation "HOPE" investigators regularly review the content of the video-taped statements obtained from the IIU and compare their content with the video-taped statements given by the same person to Operation "HOPE" investigators. 25. have become aware from numerous conversations with Operation "HOPE" investigators over the course of my involvement with Operation "HOPE", that based on investigators' comparisons of the content of the IIU and Operation "HOPE" video-taped statements, that the type and frequency of the abuse complained of, and the identity of the persons allegedly responsible for that abuse, were identical in many cases, and similar, but not identical in other cases. 26 On March 16, 1998, upon the information of Constable Ross Pritchard, member of the RCMP and an investigator with "Operation HOPE", Mr. Justice J.P. Kennedy issued General Warrant pursuant to section 487.01 of the Criminal Code authorizing peace officer to enter the offices of the IIU, situate on the 9th floor, Bank of Montreal Building, 5151 George Street, Halifax Regional Municipality, on four separate and pre-authorized occasions over 12-month period to make an electronic copy of the data contained in the IIU computer system (CLEIMS). 27. Constable Daniel MacDonald, member of the RCMP and an investigator with Operation "HOPE", with the assistance of other peace officers, executed the General Warrant on three of the four authorized occasions; on April 3, 1998; on July 10, 1998; and on March 12, 1999. Due to the RCMP's extensive involvement in the investigation of the Swissair 111 crash on September 2, 1998, no execution was conducted on October 16, 1998. 28. On or about May 10, 1999, Constable MacDonald advised me, and verily believe, that on the first execution of the General Warrant on April 3, 1998, total of 356,591 image files were electronically copied and seized from the IIU's CLEIMS data base; on July 10, 1998 an additional 46,482 image files were electronically copied and seized; and on March 12, 1999, an additional 58,324 images were electronically copied and seized. 29. have been advised by Constable MacDonald, and do verily believe, that an image file, as copied and seized, is the equivalent of one-page paper document. 30. Based on the exchanged lists of criminal complainants and compensation claimants, on the exchanged video-taped statements between Operation "HOPE" and the IIU and the VIU, and on the CLEIMS data base images copied and seized from the IIU data base, have concluded that the similarities between the Operation "HOPE" investigations and the IIU and VIU investigations in terms of who the complainants/compensation applicants are, who the alleged abusers are, and the nature and frequency of the institutional abuse allegedly complained about indicates the IIU and VIU investigations are virtually indistinguishable from the Operation "HOPE" investigations, although the purposes for the investigations are different. 31. have been advised by Staff Sergeant Brown, and do verily believe, that Mr. Earle Leroy Keating, also known as Lee Keating, is former employee of the Nova Scotia School for Boys and of the Shelburne Youth Centre, and has been named as one of the 652 persons against whom allegations of institutional abuse have been made. 32. have been further advised by Staff Sergeant Brown, and do verily believe, that total of 35 criminal allegations have been made against Mr. Keating, and as of May 12, 2000, nine (9) of those allegations are still under active criminal investigation by Operation "HOPE". 33. am aware, that since October 1999, large quantities of historical provincial government records pertaining to the operation and administration of the Nova Scotia School for Boys and of the Shelburne Youth Centre and other Nova Scotia Youth Detention Centres and/or residential Schools have been located, and are, as at May 12, 2000, still being reviewed by Operation "HOPE" investigators and staff. As result of this review, it is possible that the number of allegations made against Mr. Keating and still under active investigation may change. [19] By December 3, 1996, Operation "HOPE", IIU and Facts-Probe Inc. were all investigating allegations of abuse and on the instructions of the Department of Justice the use to which claimants' statements could be put was expanded to include investigation of claims for compensation, the Province's claims against insurance companies, the Province's claims against "perpetrators", the discipline of employees, criminal investigations and for reports of child abuse to the Department of Community Services. In addition, of course, all information supplied to the government was subject to the provisions of the Act. [20] Throughout the entire ADR process there was much publicity and media attention. THE APPELLANT [21] Keating is retired Chief Supervisor of the Nova Scotia School for Boys at Shelburne, Nova Scotia. He had been in the employ of that institution in various capacities for 30 years. He retired in 1989 and in affidavits and material filed with me, together with his oral testimony, he claims to have been proud of his work in that institution, believing he had helped "... many, many young individuals to get back on the path that led them to more productive and happier lives." With the publication of the Stratton Report of purported widespread sexual and physical abuse Keating understandably claims to have been devastated. He understood that in the process undertaken by Mr. Stratton and in the subsequent ADR process he was named as and accused of being an abuser. The allegations attracted much media attention and the fact that many past and present employees of the institutions had been accused as perpetrators of abuse was public knowledge. This was especially so for the Sherlburne institution. [22] Keating had been aware of the allegations and was aware of the Stratton Inquiry and the findings of that Inquiry. Indeed, he was given certain "can-say statements" by the original investigators which outlined certain allegations by individuals made against him. Keating opined that while he agreed that any people who had been abused should be compensated he took great issue with the findings as to the extent of the abuse. He agreed with an ADR process but the process implemented and/or administered, he said, "became nightmare for (him) and other former dedicated employees of the school for boys." [23] He continued in his affidavit submitted to me and which he confirmed in his oral testimony: had anticipated that in deciding who was entitled to compensation that fundamental principles of justice, such as fairness, truth and objectivity, would be the cornerstone of the program. While the claimants were being spared the publicity of public trial and, more importantly cross-examination by experienced defence counsel as to the validity of their claims, did not anticipate that virtually no effort would be made to ascertain whether or not the allegations being levelled were true. During the course of the compensation process, have been shown by investigators employed by the government number of so-called "can say" statements from former residents at the school, making allegations against me. In each and every instance, these allegations are completely and totally false. so advised the investigators. further advised them that in many instances could provide them with positive evidence to rebut the allegations. This really is where my nightmare began. This then is the back ground to my application. know that allegations have been levelled against me. know the names of some of the individuals who have made some of the allegations because have been shown can say statements. do not know if there are other allegations or statements which have not been shown. Most importantly, do not know if persons have been compensated on the basis of the allegations made against me false allegations. do not know if the government has accepted the word of the claimants over mine and in effect branded me an abuser without my having chance to participate in the process. simply want to obtain information about myself in my role as former employee of the Province of Nova Scotia. am not seeking information about third parties. am not attempting to hinder any criminal investigation which may be underway. simply want to know the truth. [24] This appeal is taken pursuant to s-ss. (1) and (2) of s.41 of the Act, which subsections read as follows: Appeal to Supreme Court 41 (1) Within thirty days after receiving decision of the head of public body pursuant to Section 40, an applicant or third party may appeal that decision to the Supreme Court in such form and manner as may be prescribed by the Nova Scotia Civil Procedure Rules or by the regulations. Notice of appeal to third party (2) The head of public body who has refused request for access to record or part of record shall, immediately on receipt of notice of appeal by an applicant, give written notice of the appeal to any third party that the head of the public body (a) has notified pursuant to this Act; or (b) would have notified pursuant to this Act if the head of the public body had intended to give access to the record or part of the record. [25] The Attorney General of Nova Scotia has responded to this application and has resisted disclosure as requested by the appellant. Certain unnamed third parties, through counsel, have also resisted disclosure as requested. [26] On September 10, 1998, Keating had made application for information pursuant to the Act. He described the information sought as follows: INFORMATION PERTAINING TO ME IN THE N.S. GOVERNMENT"S PROGRAM OF "COMPENSATION TO VICTIMS OF INSTITUTIONAL ABUSE" (a) BACKGROUND INFORMATION ON THE PROGRAM INCLUDING CABINET DOCUMENTS (b) NUMBER AND NATURE OF ALLEGATIONS AGAINST ME, AND BY WHOM (c) SPECIFICS OF TIMES OF ALL ALLEGATIONS AGAINST ME (d) NUMBER AND DOLLAR AMOUNTS OF PAY OUTS MADE FOR ALLEGATIONS AGAINST ME (e) WHETHER ANY ALLEGATIONS AGAINST ME HAVE BEEN DISMISSED AS FRAUDULENT (f) WHETHER ANY ALLEGATIONS AGAINST ME ARE OUTSTANDING. [27] That application was refused on October 16, 1998 by Robert Doherty, the Freedom of Information and Protection of Privacy Act Coordinator and Keating then appealed to Mr. Darce Fardy, review officer, appointed pursuant to the Act. In that appeal Keating wrote 13-page letter in which he outlined his background, some of his work and employment history and set forth the reasons for his request for information. have referred to some of the information contained in that letter above. [28] Mr. Fardy by report dated March 11, 1999, reviewed Keating's request and submission. While he disagreed with certain of Keating's legal assumptions he analyzed the Province's response to the request. Mr. Fardy recommended: Recommendations: that the Department (of Justice) provide the Applicant, if he hasn't already received them, with "can says" regarding all of the accusations made against him. (The Applicant says he has received four "can says" but has evidence that there are other accusations made against him.). The summary should include the dates and times when the abuse is said to have occurred. that the Department provide the Applicant with list of any allegations that have proven to be false. that the Department provide the Applicant with the total value of compensation paid to those who accused him. that the Department provide this information in an expeditious fashion. [29] On April 29, 1999, Mr. Doherty, the "FOIPOP Coordinator" reaffirmed his original position and refused the disclosure sought. He held out the possibility that at some future time the refusal might be reviewed. [30] have been assured by counsel for the Attorney General that the "FOIPOP Coordinator", Mr. Robert Doherty, had been delegated the "powers granted to and duties vested in (the Minister) pursuant to s.44 of the Act. The delegation of the duty of the head of public body (in this case the Minister of Justice) to Mr. Doherty, presumably as "FOIPOP Coordinator", created an anomalous situation. Keating's first request for information was received by Mr. Doherty and was adjudicated upon in his delegated authority as head of the public body pursuant to s.7. Upon Mr. Doherty's refusal, Keating's right of appeal was to Review Officer, who in this case was Mr. Fardy of the Nova Scotia Utilities and Review Board. The Review Officer then pursuant to s.39, recommended to the head of the public body (Mr. Doherty by virtue of his delegated position) who, pursuant to s.40 of the Act is empowered to "make decision to follow the recommendation of the review officer or any other decision that the head of the public body considers appropriate." In effect, Mr. Doherty in his delegated positions is authorized to overrule any recommendation which might have the effect of overruling his initial decision. [31] Following the decision by the Coordinator, Keating then commenced this appeal. By submission dated May 1, 2000, Keating's counsel, Mr. W. Dale Dunlop, amended the request for information so that the following specific requests have been made: 1) the number and nature of allegations made against Mr. Keating and by whom those allegations were made; 2) the specific times and dates of all the allegations made against Mr. Keating; 3) the evidence collected in relation to investigations undertaken as result of the allegations; 4) any documents created or used in the adjudicative process and the reasoning and deliberations of the review officers involved in the program with respect to claims against Mr. Keating; 5) information on any action taken as result of the review officers recommendations; 6) the number and dollar amount of payouts made with respect to allegations against Mr. Keating; 7) whether any of the allegations leveled were dismissed as fraudulent or unproven; 8) whether any allegations remain. [32] interpret these requests to be an amplification of the generality of Keating's request of September 10, 1998. [33] The Province attempted to comply with s-s. (2) of s.41 of the Act whereby notice to third parties is required, but have been informed by the Attorney General, and accept, that although attempts were made to inform the third parties (claimants) of this appeal, the present whereabouts of many of them is now unknown. am satisfied that there has been acceptable compliance with that subsection. [34] My powers in this appeal are set forth in s.42 of the Act, s-s. (1) of which reads: Powers of Court 42 (1) On an appeal, the Supreme Court may (a) determine the matter de novo; and (b) examine any record in camera in order to determine on the merits whether the information in the record may be withheld pursuant to this Act. [35] The Attorney General submitted that as this appeal is to be determined de novo the standard of review is one of correctness and has cited the decision of Tidman, J., in Jobb v. Nova Scotia (Department of Justice) (1999), 174 N.S.R. (2d) 380 (N.S.S.C.). held during the hearing of this matter (over the objection of the Province), that as the matter is to be heard de novo the reasoning of the Supreme Court of Canada in R. v. Dennis (1960), 1960 CanLII 34 (SCC), 125 C.C.C. 321 (S.C.C.) applies: ... the distinction between "an appeal by holding trial de novo" and an appeal to the provincial Court of Appeal is that although the object of both is to determine whether the decision appealed from was right or wrong, in the latter case the question is whether it was right or wrong having regard to the evidence upon which it was based, whereas in the former the issue is to be determined without any reference, except for purposes of cross-examination, to the evidence called in the Court appealed from and upon fresh determination based upon evidence called anew and perhaps accompanied by entirely new evidence. [36] Duhaime's Law Dictionary defines the term "de novo" as follows: "de novo" Latin: new. This term is used to refer to trial which starts over, which wipes the slate clean and begins all over again, as if any previous partial or complete hearing had not occurred. [37] The Dictionary of Canadian Law, Dukelow Nuse defines de novo as follows: "de novo". [L] Fresh; new; "de novo hearing": rehearing; "trial de novo": form of appeal in which the case is retried. [38] Accordingly, decided in hearing this matter would proceed by considering all information that was before the coordinator at the time of his final decision and such further evidence produced to me whether by affidavit or by oral testimony. considered the request for information as amended by Keating and his counsel as if presented de novo. [39] For the purposes of this appeal, therefore, have before me the following: (1) Notice of Appeal dated April 29, 1999, to which is attached (a) application for access to record dated September 10, 1998; (b) letter to Darce Fardy dated December 21, 1998; (c) the report and recommendation of Darce Fardy dated March 11, 1999; (d) the decision appealed from, in the form of letter dated April 12, 1999, from Mr. Doherty; (2) Memorandum of Argument from appellant's solicitor, Dale Dunlop, dated May 1, 2000, by which the amendments to the original request for information was confirmed; (3) Affidavit of Chief Inspector Ian E. Atkins of the Royal Canadian Mounted Police; (4) Affidavit of Harry Murphy of Facts-Probe Incorporated to which was appended the following exhibits: (a) sample release form used by Honourable Justice Stuart Stratton, Q.C.; (b) copy of the "Stratton Report"; (c) copy of contract between Facts-Probe Inc. and the Department of Justice; (d) correspondence, described as introductory letter from the Department of Justice dated August 31, 1995; (e) correspondence from the Department of Justice dated December 3, 1996, mandating consent to certain uses to which disclosed information may be used; (5) Notice of Appeal by Lee Keating from the decision of the head of the public body, which notice is dated April 29, 1999 and to which is attached: (a) original application for access dated September 10, 1998; (b) appellant's brief to the review officer dated December 21, 1998; (c) decision of Robert Doherty dated April 12, 1999, refusing access as requested; (6) Affidavit of Amy Parker solicitor of the Department of Justice to which is appended the following exhibits: (a) memorandum of understanding regarding compensation for survivors of institutional abuse; (b) letter from the Department of Justice dated July 18, 1996 to "counsel for survivors of institutional abuse; (c) letter from the Minister of Justice, Jay Abbass, dated December 6, 1996 to "all compensation lawyers"; (7) Affidavit of Michael Dempster, former program director of the "Compensation for Institutional Abuse Program" to which is appended the following exhibits: (a) November 1997 guidelines for the Compensation for Institutional Abuse Program; (8) Affidavit of Francine McIntyre, clinical therapist; (9) Letter dated May 30, 2000, from the solicitor for the Department of Justice, Edward Gores, to Honourable Justice Margaret Stewart enclosing: (a) Nova Scotia information directory published on the Province's website and (b) Robert Doherty's letter of October 16, 1998, to the appellant, being the first response of the head of the public body to the appellant; (10) Affidavit of Elizabeth Mullaly, solicitor employed by the Province of Nova Scotia in the Compensation for Institutional Abuse Program to which is appended various exhibits demonstrating the documentation methods used by the program. [40] have also received the following submissions: (1) appellant's memorandum of argument addressed to the Honourable Justice Margaret Stewart, dated May 1, 2000, consisting of 20 pages; (2) prehearing submission of the Attorney General of Nova Scotia dated May 29, 2000, consisting of 49 pages together with book of authorities; (3) applicant's reply to Attorney General's submission dated July 7, 2000, consisting of nine pages; (4) further applicant's reply to Attorney General's submissions on law enforcement dated July 12, 2000, consisting of nine pages; (5) third party's response to appellant's supplementary submissions dated September 15, 2000, consisting of two pages; (6) post-hearing submissions of the Attorney General of Nova Scotia dated February 21, 2001, consisting of 67 pages and appendices; (7) appellant's post-hearing submission dated March 7, 2001, consisting of eight pages; (8) brief on behalf of unnamed third parties; (9) reply of the Attorney General. [41] In addition, held two days of hearing in chambers when the following witnesses testified: the appellant, Earle Leroy Keating, Inspector Ian Atkins, Elizabeth Mullaly. [42] large box of material has been delivered to me by the Province, but have not examined that material, in camera or otherwise. The affidavit of Elizabeth Mullaly, who had been directly involved in the record keeping of the Compensation for Institutional Abuse Program, satisfied me that need not examine the materials in advance of the hearing unless and until certain other determinations had been made. [43] For the purposes of this appeal I have considered all of the above material including Robert P. Doherty's decision of April 12, 1999 which latter item I have considered to be the decision appealed from in the context of a de novo process. In addition, certain of the contents of the affidavits are expressions of opinions which in my view in the circumstances are inadmissible. need not detail the latter observation. UNDERTAKINGS AND RELEASES [44] In the consideration of the various aspects of the Act it is essential to develop an understanding of the extent of any undertakings with respect to the confidentiality of the information sought and obtained. At the risk of some repetition, the following is chronological summary of certain events which consider important in the development of an understanding of the undertaking. (1) December 1994. The Stratton investigation was commenced and Facts-Probe Incorporated was engaged to undertake confidential interviews with alleged "victims and employees". (2) June 30, 1995. The Honourable Stuart Stratton, Q.C. completed his investigation and filed his report. Claimants had not been required to testify in public and the "victims of abuse" had been given an opportunity to "... tell their stories in private and without being made into public spectacles." Mr. Stratton, however, did say: The Minister of Justice acknowledged, however, that the fact that an investigation was to be done would not necessarily preclude an eventual public inquiry. Mr. Stratton in his investigation took steps to protect the identities of the victims as far as possible. He reported that he had attempted to take such measures to protect the privacy of the victims as were consistent with public scrutiny of the events and actions that were the subject of the investigation. However, at no time during the Stratton investigation was there any opportunity for claimants to face their alleged abusers, nor were the alleged abusers given the opportunity to face their accusers. In Mr. Stratton's conclusions he said at p.99: Many of the complainants who came forward and gave us statements did so only because of the assurance of confidentiality that was given to them. They told us in clear terms that they would not have spoken to us otherwise. This commitment to confidentiality must be honoured. At no time during the investigation did Mr. Stratton or Facts-Probe Inc. require that complainants sign releases. (3) July, 1995. The Department of Justice's internal investigation unit (IIU) was formed "... to conduct the administrative investigations for employee discipline." Until August 1, 1998, that unit also conducted investigations to validate compensation claims when that function was taken over by the Validation Investigation Unit (VIU). Both units are of the Department of Justice. (4) August 1, 1995. Facts-Probe Inc. was mandated by the Department of Justice to "contact all people who came forward to (the Stratton Inquiry) to identify if any of them are willing to give statement to the R.C.M.P., or to give statement to the Province of Nova Scotia to assist it in investigations of current employees, or to give statement to allow an investigation of alleged abusers under s.63 of the Children and Family Services Act to determine whether the alleged abuser poses risk to children. (5) September 1, 1995. The Province entered into an agreement with Facts-Probe Inc. "... to conduct investigations as are required by the Minister of Justice or his designate, always under his direction, and to his satisfaction." (6) December 1995. Operation "HOPE" was established by the Royal Canadian Mounted Police for the purpose of conducting criminal investigations into allegations of child abuse. Operation "HOPE" supplied copies of statements given by claimants to IIU, provided the claimant executed form of release. That release reads as follows: of consent to and authorize the Royal Canadian Mounted Police investigators from Operation "HOPE" to release my video taped interview and notes relating to the interview to the Province of Nova Scotia for the purpose of compensation and/or internal investigation. (7) May 15, 1996. memorandum of understanding was completed and executed between the Province of Nova Scotia and counsel for "survivors". This memorandum, inter alia, provided: 6. Statements given by Survivor and reduced to writing or recorded on videotape or audiotape with view to validating the Survivor's claim for compensation shall be used only for purposes of this process and shall not be released to the public without the prior written consent of the Survivor. The memorandum required the execution of release by claimants prior to obtaining compensation. (8) The memorandum of understanding prescribed the form of release which did not specify the use to which statement could be put. (9) July 18, 1996. The Department of Justice requested claimants' counsel to keep confidential all information on institutional records which relate to people other than their specific clients. This undertaking "... would allow us to send counsel page from the medical log which has notations relating to counsel's client without the time-consuming necessity of blanking out all other information ..." (10) December 6, 1996. The then Minister of Justice acknowledged that from November 1, 1996, the Department had suspended the ADR process in order to allow the Province time to address several issues of concern. He announced that the process would continue but changed certain time limitations within the process. He also indicated that statement protocol was to be developed among the R.C.M.P., the IIU and Facts-Probe Inc. He said: All three organizations will share information, and investigations will be coordinated to the fullest extent possible recognizing the independence of police investigations. Statements provided for the purpose of compensation will be used for investigative purposes (whether criminal or disciplinary), and for the Child Abuse Registry, in keeping with government's obligations. remain committed to providing claimants with confidential and respectful process. recognize that some may not wish their statements to be used in this wider forum; however think it strikes an appropriate balance between the interest of survivors and those of all Nova Scotians in seeing perpetrators brought to justice. (Once again, there was no opportunity for present and past employees to respond to allegations made against them.) On or before August, 1996, the form of release required of all claimants was as follows: Release Form I, of in the Province of hereby consent to the release of my name and any information given by me in the course of the Stratton investigation, or in the course of follow-up to this investigation, of abuse in provincial institutions to: Check one, two or all three: 1. The Province of Nova Scotia 2. The Royal Canadian Mounted Police, or other appropriate police force. 3. To determine whether the allegations of abuse can be investigated by relevant Children's Aid Society or the Province for the purpose of entering the abuser's name in the Child Abuse Register. DATED this day of A.D., 199 Witness Signature (11) December 3, 1996. Apparently in response to problem raised on November 25, 1996, the Deputy Minister of Justice wrote to Facts-Probe Inc. concerning the use of statements which Facts-Probe Inc. obtained from persons seeking compensation. The Deputy Minister specified that statements obtained after November 25, 1996, should incorporate the following statement: understand the statement am about to give may be used for (a) my claim against the Province for compensation, and any action by the Province to recover from insurance companies or perpetrators; (b) discipline of present employees of the Province; (c) police investigation of offences disclosed in the statement; and (d) report of child abuse to the Department of Community Services, and any investigation undertaken by that Department or child protection agency. Facts-Probe Inc. was instructed that it should not take statement from person who does not agree with the foregoing because once the information is in the hands of the Department of Justice there is an obligation to act upon it. (12) December 6, 1996. The Minister of Justice wrote to "all compensation lawyers" concerning the ADR process. have referred to the contents of that letter when addressing the subject of the affidavit of Amy Parker. (13) November, 1997. The Province established "Guidelines for the Compensation for Institutional Abuse Program of the Province of Nova Scotia." These guidelines provided that statements were mandatory and that claimants might be requested to give further statements. It required that all statements be truthful and as of October 1, 1997, all statements were to be taken by the IIU only. It did provide, however, that statements given to the R.C.M.P. or Facts-Probe Inc. prior to that date, will continue to be accepted for the purposes of filing demand. Article 5.6 of the Guidelines stated: 5.6 Statement may be used by the Province, without notice to the Claimant, for purposes relating to the alleged Physical and/or Sexual Abuse including, but not limited to: a. discipline proceedings relating to present Employees of the Province; b. any investigation or prosecution of an offence; c. report of child abuse to the Department or Community Services, and any investigation undertaken by the Department or child protection agency; d. civil litigation on behalf of or against the Province or child protection agency; or e. the identification of potential witnesses for the investigation and validation of claims. The Guidelines continued: 5.7 The Province undertakes to treat all Claimant information it holds or receives in respect of Claimant's Demand for compensation in accordance with its obligations under the Freedom of Information and Protection of Privacy Act. While the Guidelines contemplated the investigation of claims, no provision was made for response by employees or former employees against whom allegations were made. The Guidelines again specified form of release to be executed by claimants which included the following: 8. understand and agree that at any time, now or in the future, the Statement(s) and other material have submitted in support of my claim may be subject to investigation regarding the accuracy of the Statements and material. 9. understand the Statement(s) and other material have submitted in support of my claim may be used without notice to me for purpose of assessment of my claim and for other purposes relating to alleged abuse, including but not limited to: a. discipline proceedings relating to present employees of the Province; b. any investigation or prosecution of an offence; c. report of child abuse to the Department of Community Services, and any investigation undertaken by that Department or child protection agency; d. civil litigation on behalf of or against the Province or child protection agency; or e. the identification of potential witnesses for the investigation and validation of claims. (14) August 1, 1998. The Validation Investigation Unit (VIU) assumed the obligation of conducting investigations to validate compensation claims from the IIU. Of course, both are of the Department of Justice. GROUNDS FOR REFUSAL [45] The grounds for the refusal by the Minister of Justice are set forth in the Minister's pretrial memorandum and post-trial brief. In the latter the Minister has identified the issues in this appeal as follows: (a) person the subject of criminal investigation ought not to have access to information which might harm law enforcement; (b) person the subject of criminal investigation ought not to have access to information where such disclosure might harm the effectiveness of investigative techniques or procedures currently used or likely to be used; (c) person the subject of criminal investigation ought not to have access to information which could reasonably be expected to reveal the identity of confidential source of law enforcement information; (d) person the subject of criminal investigation ought not to have access to information which could reasonably be expected to reveal in any way the exercise of prosecutorial discretion; (e) person the subject of criminal investigation ought not to have access to information which is in law enforcement record and which, if disclosed, could reasonably be expected to expose the author of the record (or person who has been quoted or paraphrased in the record) to civil liability; (f) public body is entitled to refuse to disclose information where the disclosure could reasonably be expected to harm the financial or economic interests of public body or the Government of Nova Scotia, particularly information about negotiations carried on by or for public body or the Government of Nova Scotia; (g) person should not have access to personal information where the disclosure would be an unreasonable invasion of third party's personal privacy; (h) Disclosure of personal information compiled and part of an investigation into possible violation of law is presumed to be an unreasonable invasion of the third party's personal privacy. [46] The Minister then identified the various sections of the Act relied upon for the refusal to disclosure as follows: Sections 20(1), (2), (3)(b) and 20(4); 15(1)(a), (c), (d) and (f); 15(2)(b) and 17(1)(e). For the sake of completeness those subsections are now set forth in full: Personal information 20 (1) The head of public body shall refuse to disclose personal information to an applicant if the disclosure would be an unreasonable invasion of third party's personal privacy. Determination of unreasonable invasion of privacy (2) In determining pursuant to subsection (1) or (3) whether disclosure of personal information constitutes an unreasonable invasion of third party's personal privacy, the head of public body shall consider all the relevant circumstances, including whether (a) the disclosure is desirable for the purpose of subjecting the activities of the Government of Nova Scotia or public body to public scrutiny; (b) the disclosure is likely to promote public health and safety or to promote the protection of the environment; (c) the personal information is relevant to fair determination of the applicant's rights; (d) the disclosure will assist in researching the claims disputes or grievances of aboriginal people; (e) the third party will be exposed unfairly to financial or other harm; (f) the personal information has been supplied in confidence; (g) the personal information is likely to be inaccurate or unreliable; and (h) the disclosure may unfairly damage the reputation of any person referred to in the record requested by the applicant. Presumed unreasonable invasion of privacy (3) disclosure of personal information is presumed to be an unreasonable invasion of third party's personal privacy if (b) the personal information was compiled and is identifiable as part of an investigation into possible violation of law, except to the extent that disclosure is necessary to prosecute the violation or to continue the investigation; Presumed not unreasonable invasion of privacy (4) disclosure of personal information is not an unreasonable invasion of third party's personal privacy if (a) the third party has, in writing, consented to or requested the disclosure; (b) there are compelling circumstances affecting anyone's health or safety; (c) an enactment authorizes the disclosure; (d) the disclosure is for research or statistical purpose and is in accordance with Section 29 or 30; (e) the information is about the third party's position, functions or remuneration as an officer, employee or member of public body or as member of minister's staff; (f) the disclosure reveals financial and other similar details of contract to supply goods or services to public body; (g) the information is about expenses incurred by the third party while travelling at the expense of public body; (h) the disclosure reveals details of licence, permit or other similar discretionary benefit granted to the third party by public body, not including personal information supplied in support of the request for the benefit; or (i) the disclosure reveals details of discretionary benefit of financial nature granted to the third party by public body, not including personal information that is supplied in support of the request for the benefit or is referred to in clause (c) of subsection (3). Law enforcement 15 (1) The head of public body may refuse to disclose information to an applicant if the disclosure could reasonably be expected to (a) harm law enforcement; (c) harm the effectiveness of investigative techniques or procedures currently used, or likely to be used, in law enforcement; (d) reveal the identity of confidential source of law-enforcement information; (f) reveal any information relating to or used in the exercise of prosecutorial discretion; Further grounds (2) The head of public body may refuse to disclose information to an applicant if the information (a) is in law-enforcement record and the disclosure would be an offence pursuant to an enactment; (b) is in law-enforcement record and the disclosure could reasonably be expected to expose to civil liability the author of the record or person who has been quoted or paraphrased in the record; or Financial or economic interests 17 (1) The head of public body may refuse to disclose to an applicant information the disclosure of which could reasonably be expected to harm the financial or economic interests of public body or the Government of Nova Scotia or the ability of the Government to manage the economy and, without restricting the generality of the foregoing, may refuse to disclose the following information: (e) information about negotiations carried on by or for public body or the Government of Nova Scotia. [47] In addition to s.17(1)(e), the Minister has essentially set forth two general grounds for the refusal to disclose: interference with law enforcement and invasion of personal privacy. [48] will deal firstly with the matter of invasion of personal privacy, secondly with the matter of law enforcement considerations and finally, the question of financial or economic interests. [49] Justice Cromwell of the Nova Scotia Court of Appeal outlined the approach he followed in the circumstances of Dickie v. Nova Scotia (Minister of Health) (1999), 1999 CanLII 7239 (NS CA), 176 N.S.R. (2d) 333 (C.A.), paras. [5] and [6]: [5] The application of the Act in this case involves three step analysis. Under the Act, personal information (a defined term) is not to be disclosed if its disclosure would be an unreasonable invasion of third party's personal privacy. The first step in the analysis is, therefore, to determine whether the disputed material is personal information within the meaning of the Act. Disclosure of personal information relating to employment history is presumed to be an unreasonable invasion of personal privacy. (s.20(3)(d)). The second step, therefore, is to determine whether this presumption applies to the disputed material. The presumption, however, is only that. It may be rebutted if, taking into account all of the relevant circumstances, including the matters specified in s. 20(2), it is concluded that the disclosure is not an unreasonable invasion of third party's personal privacy. The third step is to make that determination. [6] While there are some subsidiary matters to be addressed, the main issues on the appeal relate to these three steps of the analysis. would state the issues as follows: 1. Do the disputed documents contain "personal information" within the meaning of the Act? 2. If so, is it personal information related to employment history so that its disclosure is presumed to be an unreasonable invasion of personal privacy? 3. Does the balancing of all the relevant circumstances favour disclosure? [50] Justice Moir took similar approach in Re Cyril House ((N.S.S.C.) April 20, 2000, (unreported) (S.H. No. 160555). He analyzed the approach which he followed in that case as follows: propose to consider this appeal in the following way: 1. Is the requested information "personal information" within s.3(1)(i)? If not, that is the end. Otherwise must go on. 2. Are any of the conditions of s.20(4) satisfied? If so, that is the end. Otherwise ... 3. Is the personal information presumed to be an unreasonable invasion of privacy pursuant to s.20(3)? 4. In light of any s.20(3) presumption, and in light of the burden upon the appellant established by s.45(2), does the balancing of all relevant circumstances, including those listed in s.20(2), lead to the conclusion that disclosure would constitute an unreasonable invasion of privacy or not? [51] Both these approaches are restricted in their purview to the matter of "personal information". [52] As have said, the evidence of Elizabeth Mullaly, by affidavit and orally, persuaded me that any meaningful production of documents will require more analysis of documents by the Department. am not now reviewing specific documents. [53] Inspector Atkins said that 35 allegations were made against Keating and at the time of hearing this appeal nine of those allegations were still outstanding and required further R.C.M.P. investigation. These allegations undoubtedly were of personal nature from the points of view of the complainants (third parties) and of Keating. [54] For the specific purposes of my analysis of the facts in this case, as they relate to personal information, will adopt the approach of Justice Moir in Cyril House. 1. The information supplied by various complainants, whether orally, in writing, videotaped or reduced to writing concerning Keating were "personal information" within the meaning of s.3(i) of the Act; they undoubtedly included recorded information about the complainants and Keating. Allegations of abuse by complainants do not fall neatly within the various numbered sub-paragraphs of s-s. (i), but do conclude that such allegations are included in the general description, "... recorded information about an identifiable individual ..." 2. disclosure of personal information, however, is not necessarily an unreasonable invasion of third party's personal privacy. As Moir, J. concluded, if any of the conditions of s.20(4) are satisfied, "... that is the end" of the consideration and the material is to be disclosed. My analysis of the various releases required of claimants, assuming they were appropriately completed, leads me to the conclusion that the claimants have consented to disclosure or to process which would inevitably and unavoidably lead to disclosure to Keating. If the information leads to criminal proceedings against him, Keating would have had to have disclosure. If the information leads to proceeding to enter his name on the Child Abuse Register, Keating would have to have disclosure. If the information leads to employee discipline (and the claimant would have had no reason to realize that Keating had retired) Keating would have had to have disclosure. If the information leads to civil action against perpetrator of abuse or against an insurer of the Province, or to the identification of witnesses, Keating would have had to have disclosure. The Attorney General has cited many cases which considered the matter of personal privacy. None, however, was case dealing with releases of the kind executed by the claimants herein and, accordingly, while helpful, do not provide specific guidance. Justice Wright of this Court addressed the question of the confidentiality of the information sought herein in relation to an application for production pursuant to Civil Procedure Rules 20.06 and 26.06 in case dealing with an action by the Province for insurance indemnification for awards made to claimants in the ADR process. That case is Nova Scotia (Attorney General) v. Royal Sun Alliance Insurance Co. of Canada et al. (2000), 190 N.S.R. (2d) 208 (N.S.S.C.). Justice Wright said at p.212: [17] Dealing first with the individual complainants, it is to be noted that number of them have since signed what is commonly known as the second or third forms of release through the ADR Compensation Program which specifically authorized the Province to use their statements and other supporting material for purposes of recovery proceedings against the insurers. There is further number of individual claimants who have signed the form of release attached as exhibit to the Harry Murphy Affidavit. This is essentially consent form by virtue of which individual complainants authorized the release of their names and any information given in the course of the Stratton investigation, or in the course of follow-up to the investigation, to any one or more of the Province of Nova Scotia, the RCMP or other police force, or the Children's Aid Society for the purpose of entering an abuser's name in the Child Abuse Register. Given that waiver, there can not be said to have been reasonable expectation of privacy or confidentiality of such information from the Province's liability insurers, especially where the Province announced prior to Mr. Stratton's appointment that in the event that liability was determined, compensation to residents would be paid. [18] That leaves pool of individual complainants, the size of which is unknown to the court but which is probably relatively small, who gave statements to Mr. Stratton or his investigators but who did not sign any such form of release or consent. It is really only this group of individual complainants in respect of which the claim for confidentiality of communication can be asserted. [22] turn now to the claim for privilege over the interviews and/or statements given by several employees of the five subject residential schools in the course of the Stratton investigation. Although the confidentiality Order does not extend to these individuals, conclude that the claim for privilege does not satisfy the four Wigmore criteria. These individuals, who spoke to the Stratton investigation team on voluntary basis, must be taken to have known that any assurances of confidentiality could not be absolute where the request through their union president for immunity from criminal prosecution or disciplinary action could not be granted. Mr. Stratton simply had no authority to grant any such immunity and said so. At all events, the interest of the defendants at stake in this litigation in making full answer and defence to the claims that are brought against them outweighs any interest that might be at stake in the maintenance of the relationship between the Stratton investigation and the employees who were interviewed. Documents pertaining to discussions with employees of the five residential schools must therefore be produced by the plaintiff for purposes of this litigation. [23] Having thus disposed of the claims for privilege in respect of the individual complainants and employees of the five residential schools under investigation, come full circle to the blanket assertion of privilege which extends to the remainder of the contents of the eight sealed cartons of material. As noted earlier, these contain records of interviews of past and present department officials and superintendents of the five residential schools, as well as files obtained from police and from the Ministers of Justice and Community Services. [24] No authority has been cited to me to demonstrate that the law recognizes blanket privilege claim over spectrum of documents. Indeed, it was said by Justice Dickson in R. v. Solosky, 1979 CanLII (SCC), [1980] S.C.R. 821; 30 N.R. 380, that privilege can only be claimed document by document, with each document being required to meet the criteria for the privilege. Obviously, that analysis cannot be done in the present application where the documents remain sealed in boxes which are in the possession of the Province. [25] The argument is made by the defendants that since the blanket claim for privilege over these documents must fail, and so find, the entirety of the contents of these boxes must now be produced by the plaintiff without any prior review of them by plaintiff's counsel. Plaintiff's counsel have submitted, on the other hand, that in the event that disclosure is ordered, they ought to be afforded an opportunity to undertake review of the documentation to determine whether such issues as relevance, solicitor-client privilege or Cabinet privilege might warrant non-disclosure. respectfully agree with Justice Wright's reasoning and conclusions. therefore conclude that s.20(4)(a) applies and subject to certain conditions expressed below, disclosure of allegations of abuse made against Keating is not an unreasonable invasion of claimants' privacy. 3. Notwithstanding my conclusion that the claimants may have consented to disclosure, will proceed to consideration of s.20 of the Act. Section 20(2): Would disclosure of the information "... be an unreasonable invasion of third party's personal privacy..."? In the formulation of my answer to this general question am to consider all relevant circumstances as have been put before me. Section 20(2)(a): Is disclosure desirable for the purpose of subjecting the activities of the Government of Nova Scotia or public body to public scrutiny? The public body, in this context, is the Department of Justice and the ADR process. Keating, however, has only requested information with respect to himself. He has alleged that public funds may have been spent on false and unproven accusations against him and that he (and inferentially the public), is entitled to scrutinize the allegations made against him and the process by which expenditures were made as result of those allegations. agree with his general position, but disclosure, in my view, should not specify amounts paid to individual claimants; nor can it identify amounts paid for particular acts. accept the evidence of Elizabeth Mullaly that the records of the process will not permit such specific accountability. Section 20(2)(b): Will the disclosure of personal information sought be "... relevant to fair determination of the applicant's rights?" In my view, in order to determine his rights, Keating has right to know what persons have accused him of abusive behaviour and the specifics of those complaints. distinguish between R.C.M.P. held information and that of the Department of Justice and the ADR process. Section 20(2)(e): do not understand how third party "... will be exposed unfairly to financial or other harm." The Attorney General has submitted that third parties may be subject to possible defamation actions. That may be correct; but the question is whether such exposure would be unfair. Truth (justification) is always defence in defamation action and in certain circumstances, so is the defence of qualified privilege. Accordingly, am unable to see any element of unfairness in the possible exposure of third parties to defamation action. Section 20(2)(f): Has the personal information been supplied in confidence? The affidavit evidence submitted by the Attorney General, together with the oral testimony of the Attorney General's witnesses show that promises of confidentiality were extended to third parties at various times since the inception of the process. Mr. Stratton through Facts-Probe Inc., undoubtedly extended promises of confidentiality. Those promises and undertakings must be respected but as have noted above, they were all clearly subject to the provisions of the Act. In addition and obviously, Keating has not requested the information supplied to Mr. Stratton. Those undertakings, however, were as have set forth above subject to the possibility of an eventual public inquiry. [55] After the Stratton inquiry report, the purposes for statements given by complainants changed dramatically. The purpose of the Internal Investigation Unit, as early as July, 1995, was for "investigations for employee discipline". That purpose surely contemplated confrontation of employees accused of abuse. Notwithstanding oral undertakings given to complainants, that was the recorded purpose for further statements taken from complainants. While that purpose might not necessarily have included public aspect, it most certainly contemplated that an alleged abuser (Keating) would be made aware of the complaints and would be afforded the opportunity to respond. [56] The matter of determination of whether information was "received in confidence" was examined closely in Order No. 331-1999; Vancouver Police Board, [1999] B.C.I.P.C.D. No. 44. In that case the Commissioner posed the question to be addressed as follows: 37 What are the indicators of confidentiality in such cases? In general, it must be possible to conclude that the information has been received in confidence based on its content, the purpose of its supply and receipt, and the circumstances in which it was prepared and communicated. The evidence of each case will govern, but one or more of the following factors which are not necessarily exhaustive will be relevant in s.16(1)(b) cases: 1. What is the nature of the information? Would reasonable person regard it as confidential? Would it ordinarily be kept confidential by the supplier or recipient? 2. Was the record prepared for purpose that would not be expected to require or lead to disclosure in the ordinary course? 3. Was the record in question explicitly stated to be provided in confidence? (This may not be enough in some cases, since other evidence may show that the recipient in fact did not agree to receive the record in confidence or may not actually have understood there was true expectation of confidentiality.) 4. Was the record supplied voluntarily or was the supply compulsory? Compulsory supply will not ordinarily be confidential, but in some cases there may be indications in legislation relevant to the compulsory supply that establish confidentiality. (The relevant legislation may even expressly state that such information is deemed to have been supplied in confidence.) 5. Was there an agreement or understanding between the parties that the information would be treated as confidential by its recipient? 6. Do the actions of the public body and the supplier of the record including after the supply provide objective evidence of an expectation of or concern for confidentiality? 7. What is the past practice of the recipient public body respecting the confidentiality of similar types of information when received from the supplier or other similar suppliers? In my view, in view of the releases signed and the express purposes for the various releases, it is clear that the record or information obtained could not have been expected to remain confidential. Accordingly, the answer to Question No. posed above would be in the negative. Similarly, while various witnesses said that they promised confidentiality orally, such promises fly squarely in the face of the wording of the various releases. Therefore, the answer to Question posed above must be that there was an express agreement in writing as to the potentially public uses which could be made of the information. [57] The purpose for the taking of statements, by August 1995, included an investigation of alleged abusers under s.63 of the Children and Family Services Act That is the Child Abuse Register section of that Act. Subsections (3) and (4) of s.63 read as follows: Application for finding of abuse (3) The Minister or an agency may apply to the court, upon notice to the person whose name is intended to be entered in the Child Abuse Register, for finding that, on the balance of probabilities, the person has abused child. In camera hearing (4) hearing pursuant to subsection (3) shall be held in camera except the court may permit any person to be present if the court considers it appropriate. 1990, c.5, s.63. [58] Accordingly, any action taken pursuant to this section of the Children and Family Services Act would require notice to an alleged abuser (Keating) and an opportunity for that person to respond. [59] It was also made clear by the various Ministers of Justice throughout this process that statements given by claimants might be used for the purposes of conducting criminal investigations. will deal more precisely with the matter of criminal investigations below, but in my view it is clear that statement given for the purpose of commencing or furthering criminal investigation will in all probability if prosecution ensues, ultimately be transmitted to an accused person and will be subject to scrutiny in criminal trial. [60] The MOU of May 15, 1996, undertook that statements by "survivor" were to be used only for the purpose of the process outlined in the MOU and were not to be released to the public without the prior written consent of the "survivor". The MOU, however, required the execution of release. By August, 1996, the prescribed form of release contemplated consent to the release of information to the R.C.M.P. (leading to public process as have set forth above) or for the purpose of entering the abuser's name in the child Abuse Register (the process as have set forth above). By 1996 the purposes of the statements were extended to include any action by the Province to recover from an insurance company or perpetrators actions potentially requiring disclosure. [61] The form of the release established by the Province's guidelines with respect to the use of statements was as have set forth above. That form of release reflected the purposes set forth in the Guidelines. therefore conclude that the personal information supplied by the various claimants accompanied by forms of releases by which claimants consented to any of the purposes leading to public process were not supplied in confidence as contemplated by s-s.(f). Section 20(2)(g): Keating says the information concerning his alleged abuses is "inaccurate or unreliable". The Attorney General has submitted for that reason the information ought not to be disclosed. If the information sought by Keating was intended to be put forward by him as reliable, the Attorney General's position would be acceptable. Keating, however, has asked for access to the information so that he would have right to correct it. That is precisely one of the purposes of the Act as set forth in s.2(a)(ii) which reads: The purpose of this Act is (a) to ensure that public bodies are fully accountable to the public by (ii) giving individuals right of access to, and right to correction of, personal information about themselves, ... Section 20(2)(h): As Mr. Keating has requested personal information about himself, any damage he may suffer to his personal reputation resulting from disclosure is irrelevant. Disclosure of accurate and truthful complaints made against Keating will not unfairly damage his reputation; nor will it unfairly damage the reputation of any truthful complainant. Section 20(3)(b): Was the personal information compiled and identifiable as part of an investigation into possible violation of law? Keating has not requested information from the R.C.M.P. Operation "HOPE" obtained statements and information from various claimants. That information retained solely by the R.C.M.P. is not the subject of this application. Information released by Operation "HOPE" of the R.C.M.P. was "for the purpose of compensation and/or internal investigation" by the Province of Nova Scotia. It was not compiled by the Justice Department as part of an investigation into possible violation of criminal law, but was, rather, compiled by the Province for its own purposes. The Province has cited Re Langley Township Bylaw Enforcement Records (2000) B.C. (Order 00-01) as authority to the effect that the application for information sought should be refused. With respect, this decision is not an authoritative, but perhaps more importantly, that application was for disclosure of information compiled for the specific purpose of law enforcement, but the application herein is for information sought for the purposes of the Province even though it may initially have been obtained by the R.C.M.P. for law enforcement purposes. That is, the initial purpose for the information at the time it was obtained by the R.C.M.P. was clearly for potential criminal prosecution and as such, would be protected. Nonetheless, when the R.C.M.P. obtained the necessary release from claimant and then provided information to the Province find that law enforcement protection was lost. Similarly, in Order P-395; Ministry of Culture and Communications, [1993] O.I.P.C. No. 5, the records sought were being used for criminal investigations and premature disclosure could have interfered with those investigations. But the application herein is for information and not necessarily records and, considering the length of time since the allegations were made do not consider this application to be premature. As well, distinguish between the present application for information as opposed to one for specific documents. also note that there is before me no evidence of imminence of criminal proceedings. Rather, Inspector Atkins made it abundantly clear that although the possibility of criminal proceedings has not been ruled out there is clearly no imminence of criminal proceedings. In Ministry of the Attorney General (Ont.); Order P-1603, [1998] O.I.P.C. No. 188, (a) the application was for specific files; (b) no releases were signed by the claimants and (c) there was no "diminished expectation of privacy" as is present herein as is evidenced by the releases signed. conclude for the various reasons have set forth above that information supplied by R.C.M.P. and authorized by claimants by the use of the form of release set forth above does not fall within the category of s.20(3)(b). Section 20(4): For the reasons have set forth above have concluded that the third parties (claimants) have consented to disclosure, as contemplated by s-s. (a). Section 15(1)(a) and (c): For the reasons set forth in my consideration of s.23(b), the disclosure of the information sought will not harm law enforcement and I am not convinced it will harm investigative techniques or procedures. Section 15(d): The disclosure sought herein will not reveal the identity of confidential source. The claimants, by virtue of the releases signed, have contemplated an eventual revelation. Section 15(1)(f): have not been persuaded that the information sought will interfere with prosecutorial discretion. Section 15(2)(b): The information sought herein is not part of law enforcement record and, as have said, do not understand how the information might expose any author to civil liability. Section 17(1)(e): The Province has not shown that this disclosure sought "... could reasonably be expected to harm the financial or economic interests ... of the Government of Nova Scotia." BURDEN OF PROOF Section 45 of the Freedom of Information and Protection of Privacy Act reads: Burden of proof on head of public body 45 (1) At review or appeal into decision to refuse an applicant access to all or part of record, the burden is on the head of public body to prove that the applicant has no right of access to the record or part. Burden of proof on applicant (2) Where the record or part that the applicant is refused access to contains personal information about third party, the burden is on the applicant to prove that disclosure of the information would not be an unreasonable invasion of the third party's personal privacy. Burden of proof where third party (3) At review or appeal into decision to give an applicant access to all or part of record containing information that relates to third party, (a) In the case of personal information, the burden is on the applicant to prove that disclosure of the information would not be an unreasonable invasion of the third party's personal privacy; and (b) In any other case, the burden is on the third party to prove that the applicant has no right of access to the record or part. 1993, c.5, s.45 (1) The head of the public body has failed to prove that Keating has no right of access to records or parts of records which identify him as an abuser. (2) Keating has proved to my satisfaction that disclosure of the information sought, notwithstanding that it may be personal information about a third party, would not be an unreasonable invasion of the third party's personal privacy. (3) am satisfied that the third parties have failed to prove that Keating has no right of access to certain of the records or parts of the records as will identify below. CONCLUSIONS [62] refer again to Keating's request for information, as amended by his counsel. That is, he has requested "information pertaining to me in the N.S. Government's program of 'Compensation to Victims of Institutional Abuse'". emphasize that he has not requested specific documents, but rather, information; that request was for the following enumerated items: 1) the number and nature of allegations made against Mr. Keating and by whom those allegations were made; Elizabeth Mullaly set forth in her affidavit the type of information which may be available. She said, in para.5: 5. This complainant-focused database can be used to generate report on an individual employee. Using the employee code, the report that is produced will list the name of the complainant, the type of abuse alleged and the complainant's committal dates. There is column entitled 'NOA' which stands for "Notice of Allegation". If an "S" appears under that column, it indicates that Notice of Allegation was served on the employee in question. Where there is an "I", it indicates that the employee was interviewed with respect to the allegation. In the Appellant's case this information differs from the transcripts of interviews in the Program's files. The information available by this process should be disclosed to Keating. That is, Keating is to be given information of the number and nature of allegations made against him. He is to be given the names of those claimants who have made those allegations, provided they have signed the completed release forms as were specified above. 2) the specific times and dates of all the allegations made against Mr. Keating This information pertaining to those claimants who signed release as above is to be released to Keating. That is, Keating is to be informed of the times and date of the allegations referred to in (2). 3) the evidence collected in relation to investigations undertaken as a result of the allegations; This information pertaining to claimants who have signed the release is to be released to Keating. 4) any documents created or used in the adjudicative process and the reasoning and deliberations of the review officers involved in the program with respect to claims against Mr. Keating; These documents are not of factual nature. They would appear likely to be merely expressions of opinions and conclusions and as such, they should not be released. 5) information on any action taken as result of the review officers' recommendations; Review officers' recommendations were merely opinions and should not be released. 6) the number and dollar amount of payouts made with respect to allegations against Mr. Keating; Ms. Mullaly said in her affidavit: 9. Using the information from FoxPro, which lists the complainants who made allegations against an individual, it is possible to manually produce report that will include the names of the claimants and the category and monetary award, if any, made within the Program. But then Ms. Mullaly continued: 10. The vast majority of claims are made against more than one employee and, consequently, the award, if any was made, was global in nature. The assessment process made no attempt to allocate any part of the award to or between individual employees. As result, there is no database that can produce record showing the amount of compensation tied to the allegations made against specific employee. Accordingly, when payouts or settlements were made in global manner involving Keating and others then no disclosure is required, where settlement or payout was made for actions attributed to Keating only, that he is entitled to that information. 7) whether any of the allegations leveled were dismissed ... or unproven; This information concerning all claimants who have signed releases is to be supplied to Keating. 8) whether any allegations remain. This request is not sufficiently clear and need not be addressed. [63] In complying with this decision the Department of Justice is to take care not to identify by name any other alleged perpetrators of abuse. [64] Finally, this is an application for information and not for specific documents. If the parties encounter unforeseen difficulties in coming to form or order, will be prepared to hear them. [65] am prepared to receive written submissions from the parties with respect to the costs of this application as to entitlement and quantum.

The applicant was aware that allegations of abuse had been made against him in an alternative dispute resolution process undertaken by the Province with respect to his former employment. He applied under the Freedom of Information and Protection of Privacy Act for certain information concerning these allegations. The FOIPOP Privacy Coordinator denied access and the applicant appealed. Appeal allowed; in all cases where the claimants had signed release forms the applicant is to be supplied with information as to the number and nature of allegations made against him and the names of the complainants; the specific dates and times of all allegations made against him; the evidence collected in relation to the investigations undertaken as a result of the allegations; the number and dollar amount of payouts made for actions attributable only to the applicant; and information as to whether any of the allegations leveled were dismissed or unproven. The appeal should proceed as an appeal de novo. The applicant was not seeking information from R.C.M.P. files and the release of information which the police had passed on to the Department of Justice would not harm law enforcement as the information was compiled by the Province for its own purposes. The complainants had been required to execute releases whereby the information supplied could be used for various specified purposes, all of which potentially involved public disclosure or disclosure to the applicant. Law enforcement protection was lost when a release was obtained from the complainants and the information was passed to the Province. There was no unreasonable invasion of the claimants' privacy. The applicant was entitled to know what he had been accused of and should have the right to correct the record.

d_2001nssc85.txt

nan 1998 S.T. No. 07689 IN THE SUPREME COURT OF NOVA SCOTIA BETWEEN: Fairview Farms Limited and M.S.D. Enterprises Limited -and- A.A. Putnam Sons (l987) Limited nan Heard Before: The Honourable Justice Douglas L. MacLellan Place Heard: Truro, Nova Scotia Date(s) Heard: March 8, 9, 10, 11, 12, 1999 and April 9, 1999 Date of Written Decision: June 16, 1999 Counsel: Peter M. Rogers, Esq., for the plaintiffs William M. Leahey, Esq., for the defendant MACLELLAN, J. The dispute in this case is about how to interpret an agreement signed by three brothers in 1988 by which they reorganized their father’s farming operation. The brothers, Gene, Merle and Lorne Putnam, each formed new company at that time with Gene owning Fairview Farms Limited; Merle owning M.S.D. Enterprises Limited, and Lorne owning A.A. Putnam Sons (l987) Limited. The plaintiffs request rectification of the agreement terms in regard to the sharing by all three of them in the proceeds from any sales of milk quota by Lorne Putnam’s company. For easy reference, intend to refer to the brothers by name instead of by their respective company name. FACTS Prior to l987, the three brothers operated farming operation with their father under the company name of A.A. Putnam Sons Limited. That company was formed in l967. The operation consisted in 1987 of dairy farm with about 250 milking cows, beef operation, trailer park, and gravel pit operation. A.A. Putnam died in 1982, and after their father’s death, the three brothers continued to operate the company. They all worked in different aspects of the company. In 1987 they decided to reorganize the operation so that each brother would have his own business. There was general discussion among them about how this could be achieved, and finally an agreement was arrived at which provided that Lorne would retain the dairy operation; Merle would own and run the trailer park and gravel pit operation, and Gene would take the beef cattle and be set up on new farm in Debert called The Stiles Farm. The first document signed was on June 17th, 1987. It provided for the basic reorganization of the various activities. Each brother was to incorporate new company called “Geneco., Merleco., and Lorneco.”. The agreement provided by Article that there were number of conditions precedent to the new reorganization. It included the following: “Article 4.0l(d) Gene Co., Merle Co., and Lorne Co., reaching satisfactory agreement with respect to the purchase and sale of assets distributed on the reorganization subsequent thereto which agreement would also provide for the distribution of proceeds of the sale of milk quota within period of twenty years after the reorganization.” The evidence is that prior to the signing of this first agreement, Gene Putnam and his wife Ellen had originally wanted to continue to run the dairy operation because they had been doing that for the previous twenty years. However, after discussions with his brothers, Gene agreed that Lorne would take over the dairy operation. At the time of the reorganization of A.A. Putnam Sons Limited, the three brothers engaged an accountant Mr. James Cameron, of Collins Barrow, for advice on possible tax consequences arising from the reorganization. They also engaged Mr. Jim Stanley as the lawyer to do the legal work. There were number of meetings involving the brothers, Mr. Cameron and Mr. Stanley. Throughout these negotiations it was always understood that each brother would receive one-third share of all the assets owned at that time by A.A. Putnam Sons Limited. During the negotiations leading up to final agreement, which was not signed until March 1988, an appraiser Mr. Robert Adams was hired to do an appraisal of the assets of the parent company. His appraisal is before the court. (Exhibit Tab 29). It details the basis upon which he determined the value of the various assets of A.A. Putnam Sons Limited. The final reorganization agreement signed by the brothers provided by subsequent document called “Post Reorganization Agreement” that the Fluid Milk Quota owned by A.A. Putnam Sons Limited would be owned by Lorne Putnam’s company, now to be called A.A. Putnam Sons (1987) Limited, but if that quota was sold, or executed upon by creditor within fifteen years of 1987 the proceeds realized from the quota would be divided equally among the three brothers. This action results from the interpretation of that “Post Reorganization Agreement”, and in particular, Clause 3.00 which provides: (Exhibit Tab 8) “3.00 Sale of Quota by Putnam (87) 3.01 At any time prior to December 31, 2003 should Putnam (87) sell all or any part of its fluid milk quota, or should creditor of Putnam (87) realize on and sell the same, Putnam (87) agrees to pay the following: (a) To M.S.D., one third (l/3) of the gross proceeds received on the sale of the fluid milk quota. (b) To Fairview, one third (l/3) of the gross proceeds received on the sale of the fluid milk quota.” It is the position of the plaintiffs that this agreement should be interpreted to mean that if the defendant sold any of the milk quota which it held in November of 1987, prior to December 3lst, 2003, it was obligated to divide the proceeds three ways. The defendant alleges that the agreement only refers to Fluid Milk Quota, and therefore, it was obligated to only share proceeds from the sale of Fluid Milk Quota and not all quota sold. The court has heard lot of evidence on the subject of milk quotas. Generally, the evidence was to the effect that prior to 1987 farmer’s normal quota was made-up of Fluid Milk Quota (FMQ) and Market Share Quota, or MSQ. In 1987 A.A. Putnam Sons Limited had Fluid Milk Quota of 2,291 litres per day and Market Share Quota of 378,339 litres per year. In the years since 1987 the evidence establishes that these two quotas separated in that it became possible to sell only MSQ. In fact, an exchange for the sale of MSQ was set up by the Nova Scotia Dairy Commission in November of 1987 to do just that. In the years following 1988, the defendant sold MSQ and took the position that it was not obligated to share the proceeds with the plaintiffs. Ellen Putnam testified that she is the wife of Gene Putnam and that they looked after the dairy farm for A.A. Putnam Sons Limited during the period 1967 to 1987. She said that when the agreement was signed in 1988, she understood that the reference therein to Fluid Milk Quota meant both the Fluid Milk Quota owned by the company and the Market Share Quota. Her words were “you can’t have one without the other”. She indicated that the dairy operation started with only 35 milking cows and by 1987 had increased that to 250 with total herd of over 400 cattle. She testified that Gene’s father was sick for about three or four years prior to his death in l982 and that her husband Gene basically ran the dairy operation. She said she did the books for the farm from 1973 to 1987. She testified that in 1987 when the brothers started discussing reorganization, it was her idea that there be special arrangement concerning the milk quota. She said she did that because she felt that she and her husband had worked on the farm for about twenty years, and that therefore there should be twenty year period following the reorganization during which time all three brothers would share if the milk quota was sold. She said that her husband Gene was very much disappointed that he did not end up with the dairy operation, and that he reluctantly deferred to his brother Lorne. She said that she was aware that the term of twenty years was reduced to fifteen years prior to the signing of the final document. She said that she discussed the wording of this clause with Jim Cameron and during all of these discussions she intended that the clause would apply to all milk quotas and not just Fluid Milk Quota. Ellen Putnam indicated that she did not read the final agreement signed in March of 1988, but she and her husband received copy from Mr. Stanley after the signing. She testified that after she found out about some sales of quota by Scott Putnam, Lorne’s son, she made it clear that she and her husband were entitled to share the proceeds. She said that after one sale, she was approached numerous times by Lorne Putnam requesting that they give the money back to Scott so that he could buy the quota back. She said she disagreed and it was never explained to her why he sold quota if he then turned around and wanted to buy it back. Mrs. Putnam indicated that her brother Mr. John Ackerman is lawyer and worked with Mr. Stanley in his firm. She said that at one point she heard that Scott Putnam was leasing quota to other farmers and that she asked advice from her brother whether this was permitted. She said that in 1987 she had basic idea of what milk quota was worth, and therefore, was not surprised when Mr. Adams valued it at close to one million dollars. She said at that time she felt that MSQ was not worth whole lot and that you could not really buy or sell MSQ. She was not aware that milk quota exchange had been set up at that time. After 1987, she and her husband ran beef operation and were not concerned about milk quotas. On cross-examination Mrs. Putnam indicated that she was aware that there were two different types of quotas, but her understanding was that one went with the other. She said her husband never sold any quota during the time he ran the dairy operation. James Cameron is Chartered Accountant. He did the accounting work for A.A. Putnam Sons Limited. He was very involved in the negotiations leading up to the reorganization of that company. He testified that the clear intent of the three brothers was that the assets of the parent company were to be divided equally among them. He said it also was the intent of all the parties that the dairy operation continue as family farm in order to continue the tradition established by their parents. Mr. Cameron said he requested and got some tax advice from gentleman in his firm because all the parties were naturally concerned about possible tax consequences flowing from the reorganization of the parent company. He said at first they considered what is called “butterfly transaction”. This necessitated that each brother receive an exactly equal amount of assets from the parent company. That arrangement was discounted because it became evident that to do that the milk quota would have to be retained by the parent company. That was not possible under the Dairy Commission Rules because the quota had to be held by the actual milk producer who in this case was going to be Lorne Putnam’s company. Mr. Cameron said it was decided that the appropriate arrangement for tax purposes would be called freeze where each brother would incorporate separate company and the shares of that company would be held by the parent company of which the three brothers were equal shareholders. This arrangement was agreed to by all parties involved and the documentation for doing so was signed on March 11th, 1988. The agreements, however, indicated that the effective date of the new arrangement was in fact November 1st, 1987. Mr. Cameron said that it was clear to him that it was the intent that the milk quota would be transferred to Lorne Putnam’s company (A.A. Putnam Sons (l987) Limited), but that if the quota was disposed of prior to 2003 the proceeds from the quota sale would be shared equally among the three brothers. He said that agreement was to reflect the fact that the value of the quota was significantly higher if it was sold separately from the other farm assets or simply left with the farm operation as part of going concern. Mr. Cameron said that he was never asked to distinguish between Fluid Milk Quota and Market Share Quota. He understood they were one and the same. Gabriel Comeau testified. He became Manager of the Nova Scotia Dairy Commission in 1989. He explained how the Commission dealt with milk quota and the changes in the quota schemes during the years since 1989. He also was able to testify based on his knowledge of the Commission record about what had happened in 1987 to 1989. He explained that Fluid Milk Quota was normally used within the province, while Market Share Quota or Industrial Milk used in non-fluid products was traded between provinces, and therefore, there was involvement from the Canadian Diary Commission. It also had subsidy program for producers of MSQ. Mr. Comeau indicated that prior to 1987 the Nova Scotia Dairy Commission had an exchange program for the purchase and sale of MSQ. The price was pre-determined and the exchange normally operated towards the end of each year when it became significant to farmer whether he had met his quota obligations or not. In 1987 the Commission developed new exchange program based on supply and demand. It started in November of 1987, but was quickly met with court challenge. As result of the court decision in December of 1987, the Commission revised the program and the new exchange dealt only with MSQ and not Fluid Milk Quota. The new exchange permitted farmer to buy and sell MSQ as needed based on the going price at the time. Mr. Comeau also explained how in August 1990 MSQ was converted from litres per year into kilograms of butterfat per year and also how in August of 1994 Fluid Milk Quota and Market Share Quota were converted into Total Production Quota. Robert Adams was asked by Mr. James Cameron to prepare an appraisal of the assets of A.A. Putnam Sons Limited. His appraisal report (Exhibit Tab 29) sets out the value of the assets in two manners; namely, as going concern, and secondly, if the assets were sold off separately. Mr. Adams indicated that he worked as Director for the Nova Scotia Farm Loan Board until 1997. He was familiar with farm assets including milk quota and how the Board secured any loans advanced to farmers. He explained that in 1987 -88 the Board would obtain an assignment of farmer’s milk quota. This would protect it against the sale of such quota apart from the normal farm assets. He indicated that the form of the assignment used by the Nova Scotia Farm Loan Board at that time referred only to the Fluid Milk Quota because he said it was felt that that was the quota that had value. He said that around 1990 the wording of the assignment was changed and that both Fluid Milk Quota and Market Share Quota was to be assigned to the Board. He said this reflected the fact that in the late 1980's quota exchange was set up which permitted the sale of Market Share Quota separate from Fluid Milk Quota. Mr. Adams indicated that at the time he prepared his report he valued the Fluid Milk Quota, if it was sold as separate item, at $916,400.00. There was no valuation placed on the MSQ quota despite the fact that his report indicated that the farm had an MSQ of 47,000 litres per year. He indicated that the value of the farm on going concern basis was about $400,000.00 less than if the assets were sold piecemeal. James Stanley is lawyer and he drafted the agreements signed by the three Putnam brothers. He testified that he was asked by James Cameron to draft the agreements. He considered himself acting for all of the parties to the agreement, and in fact discussed with them the issue of possible conflict of interest. He obtained from each of them confirmation that they were aware of his role in preparing the legal documents. (Exhibit Tab 2). There is no suggestion here that Mr. Stanley was in conflict position. Mr. Stanley indicated that he understood his role to be simply to draft document reflecting the agreements arrived at among the parties. He did not negotiate the agreement for any of the parties. He indicated that the reorganization of A.A. Putnam Sons Limited came about because each of the brothers wanted to go their own way and that they were having difficulty working together. He also understood that there was agreement that all of them wanted the dairy operation to continue as family dairy operation and that Lorne and his son Scott would be doing that. The other major concern was to ensure that the method of reorganization attracted the least amount of taxes possible. Mr. Stanley indicated that he understood the quota issue arose because Gene and Ellen Putnam felt that since they had worked on the farm for about twenty years, basically running the operation, that they did not want the dairy operation sold off piecemeal because to do so would generate more revenue than was being assigned as value to the farm as going concern. He said that he understood from Mr. Cameron that the brothers had agreed that the special arrangement in regard to the sharing of quota revenue would continue for fifteen years. He said the fifteen year period was compromise because at first Gene and Ellen wanted twenty year period to reflect the same time they had worked on the dairy operation. Mr. Stanley was referred to the first reorganization agreement signed by the brothers on June l7th, 1987 (Exhibit Tab 7), which included by Article 4(a) number of conditions, precedents to the final agreement. In that document reference is made to “milk quota” while in the subsequent reorganization agreement signed by the parties in March 1988 the reference is to “Fluid Milk Quota” (Exhibit Tab Article 3). Mr. Stanley testified that as the drafter of the two documents he did not intend the change in words to mean anything. As far as he was concerned at the time he drafted the documents, the words “milk quota” and “Fluid Milk Quota” were interchangeable. He said that on behalf of the parties, he notified Scotsburn Dairy about the change in the quota ownership from A.A. Putnam Sons Limited to A.A. Putnam Sons (1987) Limited (Exhibit Tab and 2), and also the Nova Scotia Dairy Commission (Exhibit Tab and 4). He used the words “Fluid Milk Quota” and indicated it to be 2,29l litres per day without reference to the MSQ which he considered was also conveyed. He understood that by making reference to the Fluid Milk Quota he was automatically including the MSQ. That was because in his mind the MSQ had no value. On cross-examination Mr. Stanley said that he was not aware in March 1988 when the documents were signed that the Dairy Commission had set up an exchange for MSQ. He said that the documents he prepared were an attempt to reflect the agreement arrived at among the parties and that he was not involved in the forming of the terms of the agreement. He said that he was not aware at that time that MSQ could be sold. He said that when you transfer Fluid Milk Quota you got everything, including the MSQ. Claudia Putnam is the widow of Merle Putnam who died in 1996. She testified about her involvement and that of her husband in the reorganization of the family operation in l987-88. She said that her husband Merle did not get along with his brother Lorne and wanted to operate his business on his own. She said she and Merle discussed the reorganization of the company with Gene and Ellen. She said it was Ellen’s idea to put restriction on the sale of milk quota if it occurred within twenty years. The agreement would provide for each brother to get one-third of the funds realized from any such sale. She said that during these discussions and later discussions, involving Lorne, that there was no mention of MSQ, just milk quota. She said that she had not been involved in the dairy part of the operation. She said that after she and Merle heard that Lorne had sold quota, she said her husband wrote to the Dairy Commission indicating that he did not want his share of the funds realized. She said they talked about it at the time and had decided that if there were any future sales they would be claiming share. She said that after her husband’s death, she did write to the Farm Loan Board to confirm that on behalf of his Estate. She said that as result of that correspondence, she received $33,800.00 which represented one-third of sale made by Scott Putnam. She said that after getting that cheque she was approached number of time by Lorne Putnam requesting that she give the money back. She said he came to see her twenty or thirty times about that. She said she was upset by that and she felt he was harassing her. Claudia Putnam said that on March 11th, 1988, when the documents were signed, there was no discussion among the parties present about the quota issue and that neither she nor Merle read the documents before signing them. She said that later they were sent package of documents from Mr. Stanley which contained all the documents signed by the parties. She said she read the agreement and probably saw the clause about the Fluid Milk Quota but that it did not register as problem to her at that time. She testified that she and her husband first became aware of quota sales by Scott Putnam in 1995 and were not aware of any earlier sales. Gene Putnam testified. He indicated that there were number of meetings involving the three brothers along with James Cameron and Jim Stanley and John Ackerman, his wife’s brother. The first meetings were about how to divide up the assets of A.A. Putnam Sons Limited. He said that at the third meeting there was discussion about the quota issue. He said he understood that sharing would be of all the milk quota. He said he ran the dairy operation and was familiar with MSQ. He considered that to be industrial milk, and he did not know that MSQ could be sold separate from Fluid Milk Quota. He said during the twenty years he ran the dairy operation that he was always looking for new milk quota not wanting to sell quota. He did not know about the quota exchange set up around 1987. He said that when he discussed the length of the term of the quota agreement that his brother had said that it could be for l00 years because he (Lorne) did not care about how long it would run, because he had no intentions of selling quota. He said there was never any mention about the possible sale of MSQ by Lorne which would not trigger an obligation to share the proceeds. He said he first heard about quota sales by Scott Putnam in 1995. He said that when he heard about the quota sale, he contacted Lorne and was told that Scott was running the operation and that he (Lorne) would check with him about any quota sales. He said that Lorne later got back to him and confirmed there was in fact quota sale and that it was done because Scott needed the money to keep the farm going. He said Lorne did not want to pay out the two-third share as per the agreement. He said that after period of time, he finally got his share of the money. James Stonehouse is lawyer who acted for the Nova Scotia Farm Loan Board in 1987-88. He was called by the defendant and indicated that he was asked to prepare security documents for loan being advanced by the Farm Loan Board to Lorne and Scott Putnam as result of their take over of the operation of A.A. Putnam Sons Limited. Part of the security agreement was an assignment of the milk quota owned by the Putnams. He said he arranged for that assignment to be executed. (Exhibit Tab 11). He explained that the form of the assignment was prepared by the Farm Loan Board and at that time made reference only to milk quota. This was despite the fact that the letter of instructions from the Board to him said that the assignment should be of the Fluid Milk Quota. He said that later the form of these assignments was changed to include both Fluid Milk Quota and MSQ. He was shown an assignment (Exhibit 10) made in 1992 which referred to both quotas. Mr. Stonehouse said that in 1987 the word “milk quota” and Fluid Milk Quota were used interchangeably and as far as he was concerned producers felt that quota was quota. Scott Putnam is the son of Lorne Putnam. He took over the operation of the dairy farm after 1987 when A.A. Putnam Sons Limited was reorganized. He had worked on the farm since 1983 with Gene Putnam, his uncle, who was in charge of the dairy operation. Scott testified that he was at the Nova Scotia Agricultural College for three years. He did not complete the four year program and came home to work on the farm. He said he was familiar with milk quota from his training at the Agricultural College. He said that in the Spring of 1987 he took over as herdsman of the dairy farm after Gene left to set up his beef operation in Debert. He said he had conversation with his father about the MSQ and how it should not be involved in the sharing agreement because he wanted the flexibility to buy and sell MSQ depending on how the farm was doing in any particular year. He said he told his father that it would be impossible to run the farm operation if the MSQ could not be purchased and sold as needed. He said he was not involved in any of the discussions with his uncles about the agreements covering the division of assets. He said he is half owner of the new company A.A. Putnam Sons (1987) Limited with his father. He was present on March 11th, 1988 when the documents were signed. He said he did not read the documents signed on that day at that time or prior to the signing. He said he read the documents some time later when he received copy from Mr. Stanley’s office. He said that he understood the agreement to mean that he and his father had to share proceeds from the sale of only Fluid Milk Quota and had no obligation to share the proceeds from the sale of MSQ. He confirmed that in the years following 1987 he sold and purchased some MSQ. list of the transactions is produced at Exhibit 1, Tab 16, page 2. The sales were as follows: (1) March 1st, 1989 the sale of 48,677 litres for $35,923.38. (2) April 1st, 1989 the sale of 29,893 litres for $22,330.32. (2) March 1st, 1990 the sale of 80,000 litres for $43,200.00. (3) June 1st,1993 the sale of l,300 kilograms for $40,950.00. (4) December 1995 the sale of l2.5 kilograms of Total Production Quota (TPQ) for $l82,5l2.50 (5) July 1996 the sale of 0.9 kilograms of TPQ for $l3,500.00 (6) June 1997 the sale of 6.5 kilograms of TPQ for $l0l,400.00 (7) February 1998 the sale of 63.7 kilograms of TPQ for $l,042,l32.00. It is to be noted that in August 1994, the Nova Scotia Dairy Commission changed over to single quota system known as Total Production Quota (TPQ). Therefore, any sales after that date were under the new quota scheme. Scott Putnam testified that he did not tell his uncles about any of these sales because he did not believe it was any of their concern. He said that from 1988 to 1993 no Fluid Milk Quota was sold, only MSQ. In August 1994, TPQ came into existence. In December 1995 he sold as indicated 12.5 kilograms of TPQ and at that point was told by his father that Gene wanted his share from this sale which would amount to approximately $60,000.00. He said that at that time he owed the Nova Scotia Farm Loan Board about $500,000.00 and that they had an assignment on the milk quota, therefore, the cheque for the sale was made payable to them. He said at that point Merle Putnam agreed not to claim his share, therefore, he and his father received $l20,000.00 from that sale after Gene was paid. He said the sale that he made in July 1996 for which he received $l3,500.00 all went to the Farm Loan Board against his loan. In June 1997 he sold quota worth $l01,400.00 which was divided among the three parties. The last of the quota was sold on February 19th, 1998 for $l,042,000.00. That money is being held in trust subject to ruling on this case. On cross-examination Scott Putnam was asked if he indicated to his father prior to signing the agreements that he should discuss the quota issue with his brothers. He indicated that he did not. He also said that he told his father about the quota sales in 1989 to 1993 at the time they happened, or at least within month of the sale. He said he sold MSQ because he felt they were not making money on the sale of that milk, therefore, were better off without that quota. He was asked why he did not notify his uncles after the 1995 sale when he sold TPQ. He said he figured they would find out themselves. Lorne Putnam testified. He said that in 1987 when the brothers first discussed reorganizing the parent company that Gene was running the dairy operation. He said he wanted to take over that operation because of his son Scott who was working on the dairy farm with Gene. He said Gene agreed to take the beef operation and that he would be set up on the Stiles property which they intended to purchase as part of the package. He said the brothers sat down with James Cameron and Jim Stanley and discussed during number of meetings how the matter would be handled. He said he signed the first document in June 1997. (Exhibit 2, Tab 7). He said he had discussions with Scott about quota prior to signing the agreement and that Scott wanted to have the right to sell MSQ. He said the arrangement was that Scott would be running the operation of the dairy farm. He said that as result of the meeting held with his brothers and Mr. Cameron and Mr. Stanley that only the Fluid Milk Quota would be shared. He said he discussed with his wife the length of the time that the sharing agreement would be in place. She favoured ten year term instead of twenty. He said they later agreed on fifteen years as compromise. He said he felt the number of years did not mean anything, because he had no intention of selling quota, therefore, he had made the comment to Gene that the term could be for 100 years as far as he was concerned. He said that when Gene approached him about the sale of the quota he was not aware of it. He said he discussed it with Scott and explained to Gene why it was done. He said it was because Scott needed capital to finance manure project he was involved in at the time. He said he was surprised that Scott had sold quota and that the sales actually upset him. He said that quota was important to farm operation because it is the basis upon which the farm generates revenue. ISSUE The plaintiffs claim that the court should rectify the signed agreements here to match the intention of the parties. It would involve changing the words used in the final agreement from Fluid Milk Quota to simply milk quota and would mean that all sales of quota would have to be shared. The defendant takes the position that the agreement reflected the intention of the parties at the time of signing and that there should be no rectification because it was not justified in the circumstances. They say that the MSQ sales were allowed under the agreement and that the defendant has no responsibility to share the proceeds realized from the sales of MSQ. They also ask that in light of the changes in quota description since 1988, the court determine how much of the quota sales made after 1994 consisted of Fluid Milk Quota, and therefore, what percentage needs to be shared. It is suggested that the TPQ quota sales should be assessed as having MSQ component of 62 percent and that therefore only 38 percent needs to be shared. THE LAW RECTIFICATION OF CONTRACT There is general agreement between counsel that rectification of contract is possible given certain circumstances. Fridman’s, Law of Contract in Canada, Third Edition, describes it as follows: (p. 82l-822) “The essence of rectification is to bring the document which was expressed or intended to be in pursuance of prior agreement into harmony with that prior agreement. It deals with the situation where, contracting parties having reduced into writing the agreement reached by their negotiations, some mistake was made in the wording of the final, written contract, altering the effect, in whole or in part, of the contract. What the court does is to alter the document, in accordance with the evidence, and then enforce the document as changed. Rectification is not used to vary the intentions of the parties, but to correct the situation where the parties have settled upon certain terms but have written them down incorrectly. But the court will not give remedy for party who is displeased with what the contract has brought him.” Rectification is remedy which is only to be used if the court is satisfied based on convincing evidence that it is appropriate to do so. (See Federal Business Development Bank v. Elcon Petroleum Maintenance Limited (1983), 58 N.S.R. (2d) 246). FINDINGS find that in this case that am convinced that when Gene, Merle and Lorne Putnam sat down in 1987 to discuss how they would divide up the family operation they intended the following. (1) That each of them would end up essentially with the same value in assets. (2) That the dairy farm would continue to operate as it had for many years as family operation and that therefore it would be valued on the basis of going concern instead of simply the total of its individual parts. (3) That in light of the agreement to value the farm as going concern, it was agreed that there would be an arrangement to protect against the sale of the milk quota prior to the year 2003. (4) That at the time the brothers were not aware that Market Share Quota could be sold separate from Fluid Milk Quota and when they discussed milk quota they meant the entire milk quota. The evidence here is that in 1987 Gene and Ellen Putnam basically had run the dairy operation since 1967 while Merle and Lorne looked after other company activities. It is clear to me that when there was talk of each brother going his separate way, Gene Putnam expected that he would be left with the dairy operation, however, when confronted with request from his older brother Lorne that he be granted the dairy operation as his share of the assets, Gene agreed for the sake of family harmony. The first agreement (Exhibit Tab 7) had as condition precedent that any agreement about distribution of assets would contain an agreement that if the milk quota was sold each of the brothers would receive one-third share. find at that time; namely, June 1987 all the parties understood milk quota to be one entity, that is, Fluid Milk Quota and that Market Share Quota or Industrial Milk was simply an extension of the Fluid Milk Quota. The people most involved in the dairy operation were Gene Putnam and Ellen Putnam. believe them when they testified that they assumed that “you can’t have one without the other”. believe that Lorne Putnam who really was not much involved in the dairy operation did know that there were different quotas, but did not understand how each related to the other. Scott Putnam testified that prior to his father signing the final agreement in 1988 he discussed with his father the issue of milk quota, and specifically MSQ, and the importance of it not being covered by the sharing agreement. reject Scott Putnam’s evidence on that point. do so because of the following: (1) do not believe that Scott Putnam knew at that point that MSQ could be sold separately from Fluid Milk Quota. (2) believe that if Scott discussed this with his father, Lorne would have brought it up with his brothers and James Cameron. All of them, including Lorne, agreed it was never discussed in that context. (3) There is no evidence before me that would make Scott Putnam believe that the final documents would refer to Fluid Milk Quota not simply milk quota. The document signed in June l987 referred only to milk quota. The question is why would Scott think that the final document would have different wording unless change was discussed. (4) When Scott Putnam testified about the sales of MSQ during 1989 to 1990, he said that he told his father about these sales within month of each sale. His father testified that he was not told and did not know about the sales until he was questioned by Gene in 1995 and then asked Scott for particulars. believe Lorne’s evidence on that point over that of his son Scott about whether he was told about the sales. (5) believe Scott wanted to hide the sales of quota from his uncles because he knew that if they became aware of sales, he would be forced to share the proceeds. Lorne Putnam testified that he discussed quotas with Scott prior to the signing of the final documents in March 1988. His evidence is that Scott wanted to have the right to sell MSQ. reject that evidence of Lorne Putnam. do not believe him when he testified that he discussed the issue with Scott. do so because believe if there was such discussion, he would, naturally, have discussed the issue with James Cameron and his brothers and this was not done. At that point there would appear to be no reason why such discussion would not take place if it was reasonable and fair to exclude MSQ from the sharing agreement. There appears to be no reason why that could not have been negotiated. believe that Lorne Putnam never discussed it with his brothers and Mr. Cameron because there was no such discussion with his son about the importance of having that flexibility. believe that in 1987 Lorne Putnam was not aware that MSQ could be sold separate from Fluid Milk Quota. Finally, in light of the fact that Lorne Putnam signed an agreement in June l987 in which reference was made to simply milk quota there was no reason for him to expect that the wording would change prior to March of 1988 since he did not bring up with Mr. Stanley the issue of the particular wording of the clause. He also did not even read the documents to determine what the wording was in March 1988. The only reasonable conclusion would be that based on the 1987 documents, he expected the 1988 documents to contain the words milk quota, not Fluid Milk Quota. conclude in this case that all the requirements necessary to allow rectification have been proven. I find that all the parties to the agreement signed in March 1988 intended that the milk quota owned by A.A. Putnam & Sons Limited would be shared by all three if sold within fifteen years of that date. believe that the document signed by the parties in June of 1988 did not reflect this intention when it referred to only Fluid Milk Quota. I would therefore rectify that agreement to read milk quota, which I find includes Fluid Milk Quota and Market Share Quota. Based on that rectification I find that the plaintiffs are entitled to their respective shares of all the sales of quota made after March 1988. This, of course, is subject to the fact that Merle Putnam agreed to forego his share of the sale made in December of 1995. Based on Exhibit Tab 22, it would appear that the amount claimed by each plaintiff is the sum of $399,345.23. However, this does not account for the fact that on May 1st, 1990, Scott Putnam purchased 7,500 litres of MSQ for $5,250.00. He has no obligation to share quota purchased after 1988, therefore, each plaintiff will be entitled to judgment in the amount of $397,595.23. understand counsel will work out the issue of pre-judgment interest between themselves and would award costs to the plaintiffs. would indicate that if had not found that the agreement should be rectified, would have found that when the Fluid Milk Quota and the Market Share Quota were combined to form Total Production Quota in August 1994, that Fluid Milk Quota made up 84.2 percent of the new quota formula. Therefore, the plaintiffs would have been entitled to 84.2 percent of any sales made by the defendant of Total Production Quota. reject the suggestion by counsel for the defendant that the percentage should be as low as 35 percent because of combining of quota figures in number of provinces. This issue is of no consequences in light of my decision in regard to rectification of the contract itself.

The plaintiffs sued based on a contract between the parties that required the defendant to share the proceeds of milk quota sales. The defendant took the position that the contract only required the sharing of fluid milk quota sales, and not all milk quota sales. The plaintiff sought rectification of the contract to change the wording of the contract to milk quota sales from fluid milk quota sales. Finding for the plaintiff and granting rectification, that the parties clearly intended to have the contract cover all milk quota sales. The proceeds from all sales are to be divided between the parties.

e_1999canlii6888.txt

INFORMATION #24207910 2005 SKPC 39 IN THE PROVINCIAL COURT OF SASKATCHEWAN AT NORTH BATTLEFORD, SASKATCHEWAN Between: HER MAJESY THE QUEEN and CARA RAE WEESEEKASE T. Healey, for the Crown D. MacKinnon, for the Accused April 13, 2005 V.H. MEEKMA, PCJ JUDGMENT [1] The accused was charged with the following four counts: Count #1 on or about the 21st day of July, A.D. 2004 at North Battleford, in the Province of Saskatchewan, did being at large on her undertaking given to Justice or Judge, and being bound to comply with condition thereof, to wit: Keep the peace and be of good behaviour, fail without lawful excuse to comply with that condition, contrary to Section 145(3) of the Criminal Code. Count #2 and further that on or about the 21st day of July, A.D. 2004 at North Battleford, in the Province of Saskatchewan did being at large on her Undertaking given to Justice or Judge, and being bound to comply with condition thereof, to wit: Shall abstain from all use, consumption, and possession of alcohol, fail without lawful excuse to comply with at condition, contrary to Section 145(3) of the Criminal Code. Count #3 and further that on or about the 21st day of July, A.D. 2004 at North Battleford, in the Province of Saskatchewan did while her ability to operate a motor vehicle was impaired by alcohol or a drug, operate a motor vehicle contrary to Section 255(1) and Section 253(a) of the Criminal Code. Count #4 and further that on or about the 21st day of July, A.D. 2004 at North Battleford, in the Province of Saskatchewan did having consumed alcohol in such quantity that the concentration thereof in her blood exceeded eighty milligrams of alcohol in one hundred millilitres of blood, operate a motor vehicle contrary to Section 253(b) and Section 255(1) of the Criminal Code. [2] As there was no evidence before the Court of the undertaking alleged in Counts 1 and 2, the accused is not guilty of those two charges. FACTS The evidence with respect to Counts and is as follows: [3] The accused had been drinking alcoholic beverages at house party which ended in the early morning. She had her last beer at approximately 7:45 a.m. She went to the 711 convenience store with friends as passenger in half ton truck. In the preceding hour, the accused testified that she probably had three or four beer. She was feeling “okay”, but was extremely tired and was feeling the effects of the alcohol. [4] The accused was seated in the middle. The driver went into the store to pay for the gas and food. The passenger by the door asked the accused to drive the vehicle around the corner and park it. The accused did so. She testified “I figured it was such short distance wouldn’t harm anybody. felt like could park it few feet away.” [5] Constable Archibald observed the vehicle starting to turn very slowly. Archibald drove up beside the accused. The accused was having difficulty turning the steering wheel and the passenger was helping her. [6] Archibald walked beside the vehicle and asked the accused to stop. The accused asked her to wait minute, as she was having trouble parking. [7] Archibald asked the accused to step out of the vehicle. She asked for identification. The driver had none. She smelled alcohol as she walked alongside the vehicle and noted that the eyes of the accused were bloodshot and her speech was slurred. Archibald asked her to step into the police vehicle. The accused staggered slightly and had trouble walking to the vehicle. Archibald read the accused the Approved Screening Device (ASD) Demand at 8:15 a.m. and the accused refused. Her response was “I refuse to take test until speak to lawyer.” [8] Archibald then proceeded to arrest the accused for impaired driving, and read her Charter Rights and police warning. [9] At 8:40 a.m., Archibald read her breathalyzer demand. Between 8:17 and 8:40, Archibald had arranged for tow truck, waited for it to come for the vehicle, and spoke to the passenger, explaining that the accused was being arrested and the vehicle impounded. Archibald also called the owner of the vehicle and explained what was going to happen. Meanwhile, the accused waited in the back of the police vehicle. [10] Immediately after the breathalyzer demand was read to the accused, she started yelling and screaming. She told Archibald that she would say it had not been read, and that she would be believed because she was Native. According to Archibald, she was belligerent and very unco-operative. Her speech was very slurred, she smelled of alcohol, her eyes were bloodshot. [11] At the detachment, Archibald escorted the accused from the phone room to the breathalyzer room. She was red-eyed, argumentative, smelled of alcohol and was staggering, unable to walk straight line. [12] No notation regarding any odor of beverage alcohol or difficulty walking was recorded by Archibald in her notebook, although she took nine pages of notes. Only the red eyes and slurred speech, plus difficulty driving, and the conversations were noted. Archibald testified that she was not mistaken about the odor of alcohol in the vehicle and on the breath of the accused. [14] Archibald answered “yes” when asked on cross-examination whether she believed that the accused had alcohol in her body when she made the ASD demand. Archibald also stated on cross-examination, “I’m assuming gave the ASD to find out if she had alcohol in her system and then arrested her for impaired driving.” “It was due to her refusal” and “from the driving evidence” that she was arrested for impaired driving. [15] No explanation was noted in the officer’s notes to explain the wait from 8:17 to 8:40 before giving the accused the breathalyzer demand. Archibald agreed that she “could have” read the accused the breathalyzer demand at 8:17. She wanted to speak to the passengers before they went anywhere with the vehicle, and believed that they were not sober enough to drive. [16] The tow truck arrived at 8:45, five minutes after the breathalyzer demand was read. At 8:50 the accused arrived at the detachment. She spoke to Legal aid and at 9:26 the first breath sample was taken. [17] The accused testified that she was “kind of scared” when Archibald was walking alongside the truck as she was trying to park it, because Archibald was so close to the truck. The steering was hard. The accused estimated that it took approximately ten minutes for her to park the vehicle. [18] The accused testified that she was not really feeling the effects of the alcohol until she arrived at the police station. At the 711 she said, “there was not too much time for the alcohol to hit me.” She said “a few feet, felt confident enough to drive.” [19] On cross-examination the accused stated “I knew it would kick in,” and answered “correct” when asked if she knew that she was under the influence of alcohol. ISSUES AND ARGUMENT (i) The defence argues that the certificate of analyses should not be admissible because the breathalyzer demand was not made forthwith or as soon as practicable. The accused was unlawfully detained (S.9 of the Charter); (ii) The officer did not have reasonable and probable grounds for the breathalyzer demand (S.8 of The Charter); (iii) There is reasonable doubt as to whether the accused was impaired by alcohol at the moment in time when she was parking the truck. [21] Defence argues that there were no notes taken by the officer of odor of alcohol or difficulty walking or getting out of the truck. There is evidence explaining the slowness and difficulty driving. The driving evidence together with red eyes and slurred speech is not enough to prove impaired ability to operate motor vehicle. (1) Admissibility of the Certificate of Analyses [22] Section 254(3) of the Criminal Code requires that an officer believe on reasonable and probable grounds that person is committing or has committed an offence under S. 253; the officer then may, by demand made to that person forthwith or as soon as practicable, require that person to provide breath samples for analysis. [23] breath test demand should be made as soon as the officer forms the requisite grounds for making it. Those grounds did not change between the time the accused refused to provide an ASD sample, at 8:17 a.m., at which time Archibald arrested her for impaired driving, and 8:40 a.m., when Archibald read the accused the breathalyzer demand. [24] There was no reason for the breath demand not being made forthwith. Indeed, Archibald agreed that she could have read the demand at 8:17 a.m. [25] In v. Billette, 2001 Q.B. 150, Justice Ryan-Froslie concluded “forthwith means as quickly as possible in the circumstances.” Billette concerned S. 254(2) demand but the definition is still relevant. [26] I conclude that the demand was not made forthwith or as soon as practicable and consequently, her rights under sections 8 and 9 of the Charter of Rights were breached. [27] I also conclude that the officer did not have reasonable and probable grounds for making the breathalyzer demand. According to Constable Archibald, she gave the ASD demand to find out if the accused had alcohol in her system. When the accused refused, Archibald arrested her for impaired driving, primarily because of that refusal. [28] No explanation was offered as to why the accused was not charged with refusing to comply with the ASD demand. [29] The officer was unsure of whether the accused had alcohol in her system when she read the accused the ASD demand and there was no new evidence gathered between 8:17 a.m. and 8:45 a.m. to justify the breath demand. Therefore, the evidence does not support a subjective honest belief on the part of the officer that the ability of the accused to operate a motor vehicle was impaired by alcohol. [30] As the breath sample evidence was obtained as a consequence of the breach of the Section 8 and 9 Charter Rights of the accused, it should be excluded under Section 24(2). Its admission would render the trial process unfair and bring the administration of justice into disrepute. (2) Evidence of Impaired Operation of Motor Vehicle [31] This is the more difficult issue, due to the accused’s own testimony that she had been drinking alcohol and was feeling the effects of the alcohol at the time she was operating the motor vehicle. [33] The evidence of the officer, which I have found insufficient to support a belief of impairment as prerequisite to a breath demand, cannot alone prove impaired driving beyond a reasonable doubt. [34] The accused testified that she knew the alcohol would “kick in” and that she was not really feeling the effects until she arrived at the police station. [35] There was no expert evidence called by either side. can neither take judicial notice of the fact that she would have been more impaired later at the detachment (after, in her words, the alcohol “kicked in”), nor of the fact that she would have been impaired at the 711, after drinking three or four beer within the preceding hour. [36] She has offered an explanation for her difficulty driving. She was also tired. When I consider those explanations together with the uncertainty of the police officer as to whether or not she had alcohol in her system at the time she read her the ASD demand, I am unable to conclude beyond a reasonable doubt that the ability of the accused to operate a motor vehicle was impaired by alcohol at the time she was driving. CONCLUSION [37] I find the accused not guilty of all counts. V.H. MEEKMA, PCJ

The accused is charged with driving while over .08 contrary to s. 255(1) and s. 253(a) of the Criminal Code and impaired driving contrary to s. s. 253(b) and 255(1) of the Code. HELD: The accused is not guilty on all counts. 1) A breath test and demand should be made as soon as the officer forms the requisite grounds for making it. Those grounds did not change between the time the accused refused to provide an ASD sample at 8:17 a.m., when the officer arrested her for impaired driving and 8:40 a.m. when the officer read the accused the breathalyzer demand. There was no reason for the breath demand not being made forthwith. The rights of the accused under s. 8 and s. 9 of the Charter were breached. 2) The officer did not have reasonable and probable grounds for making the breathalyzer demand. The officer testified she gave the ASD demand to find out if the accused had alcohol in her system. When the accused refused, the officer arrested her for impaired driving. The officer was unsure of whether the accused had alcohol in her system when she read the accused the ASD demand and there was no new evidence gathered between 8:17 a.m. and 8:40 a.m. to justify the breath demand. The evidence does not support a subjective honest belief on the part of the officer that the ability of the accused to operate a motor vehicle was impaired by alcohol. As the breath sample evidence was obtained as a consequence of the breach of the s. 8 and s. 9 Charter rights of the accused, it should be excluded from evidence pursuant to s. 24(2). 3) The accused testified that she had been drinking alcohol and was feeling the effects of the alcohol at the time she was operating the vehicle. She said she knew the alcohol would kick in and that she was not really feeling the effects until she arrived at the police station. She offered an explanation for her difficulty in driving testifying that she was tired. The evidence of the officer, which was insufficient to support a belief of impairment as a prerequisite to a breath demand, cannot prove impaired driving. There is insufficient evidence to conclude beyond a reasonable doubt that the accused's ability to drive was impaired by alcohol at the time she was driving.

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Q.B. A.D. 1987 No. CS 1159 J.C. R. IN THE COURT OF QUEEN'S BENCH FOR SASKATCHEWAN JUDICIAL CENTRE OF REGINA BETWEEN: ROGER ALLEN LERAT and SHANNON JOY VALLEY APPLICANTS and JUSTICE OF THE PEACE, ELIZABETH V. PEARCE RESPONDENT Wade E. McBride for the applicants Lorna Dyck for the respondent JUDGMENT MAURICE J. March 17, 1987 The respondent, a justice of the peace, issued a search warrant to search a dwelling house for weapons allegedly used in an attempted armed robbery. The applicants seek an order quashing the warrant on the grounds: ... that the said Search Warrant was unlawfully and invalidly issued in excess of the jurisdiction of the Respondent for the following reasons: (1) The INFORMATION sworn in support of the application for the said Search Warrant failed to disclose the existence of reasonable and probable grounds to believe that the items sought to be seized would be found at the location which was to be the subject of the search; more particularly, and without limiting the generality of the foregoing, the said Information was deficient in the following respects: (a) The sole ground upon which the Information is based is hearsay information from confidential source and no details are provided in support of the informant's opinion or conclusion that such information is reliable. Furthermore the informant fails to pledge on oath as to his belief in the accuracy of the source of confidential information, and therefore, no reliance could have been placed thereon by the Respondent in determining whether reasonable and probable grounds existed for the issuance of the Warrant. The search warrant was issued pursuant to the provisions of s. 443 of the Criminal Code. That section provides in part as follows: 443(1) justice who is satisfied by information upon oath in Form 1, that there is reasonable ground to believe that there is in building, receptacle or place ... (b) anything that there is reasonable ground to believe will afford evidence with respect to the commission of an offence against this Act, or ... may at any time issue warrant under his hand authorizing person named therein or peace officer to search the building, receptacle or place for any such thing, and to seize and carry it before the justice who issued the warrant or some other justice for the same territorial division to be dealt with by him according to law. The function of judge asked to quash search warrant on the basis that s. 443 has not been complied with is set forth in Re Times Square Book Store and The Queen (1985), 1985 CanLII 170 (ON CA), 21 C.C.C. (3d) 503 (Ont. C.A.) at p. 514: ... [I]t must be remembered that the role of the motions court judge hearing an application to quash search warrant is limited. He may not substitute his opinion as to the sufficiency of the evidence for that of the justice of the peace. Rather, the motions court judge must do no more than determine two issues. Firstly, whether or not there is evidence upon which justice of the peace, acting judicially, could determine that search warrant should be issued. To be acting judicially the justice of the peace "must be satisfied on reasonable grounds; that is, the grounds of belief set out in the information must be such as would satisfy reasonable man. If there are not such grounds shown the justice cannot be taken to have been satisfied on reasonable grounds." (Re Bell Telephone Co. of Can. Ltd. (1947), 1947 CanLII 374 (ON SC), 89 C.C.C. 196 at 198 [Ont. H.C.].) II The grounds of belief of the informant, peace officer, in support of his belief that the weapons would be found in the dwelling house are stated to be: Reliable and confidential information was received that the weapons used in the attempted Armed Robbery are being kept in the 3rd floor Suite of 1903 St. John Street, Regina, Saskatchewan by an unknown person. The applicants claim the peace officer's grounds are not objective reasonable grounds to support the respondent's satisfaction that the weapons would be found in the dwelling house. They submit more particularity was required more information had to be given about the confidential informer and how he obtained the knowledge so that the respondent could satisfy herself as to the reliability of the informer and the accuracy of his information. III As matter of public policy, the Crown is not required to disclose the name of the confidential informer. If the Information discloses too much information about the informer and his means of knowledge, the identity of the informer will become apparent. As result, the Crown has to take refuge in the kind of language employed in this Information. note the type of language used by the peace officer has been accepted, as compliance with the section, in other cases: see Re Lubell and The Queen (1973), 1973 CanLII 1488 (ON SC), 11 C.C.C. (2d) 188 (Ont. H.C.); Re Dodge and The Queen (1985), 1984 CanLII 59 (NL SC), 16 C.C.C. (3d) 385 (Nfl. S.C.). Perhaps more information could have been provided, however, there was information upon which the respondent, acting judicially, could be satisfied that search warrant should issue. Courts should not be too technical when scrutinizing the Information in support of search warrant; substantial compliance with s. 443 is sufficient. Informations are prepared by peace officers who are not trained as legal draftsmen, and they often have to prepare the Informations under time constraints, faced with possibility that evidence will disappear if they do not act quickly to seize it. reasonable latitude must be granted when the wording of the Information is being considered: see Re Time Square Book Store and The Queen, supra, at p. 512 and Re Lubell and The Queen, supra, at p. 190. IV As the respondent acted within her jurisdiction in issuing the search warrant the application is dismissed.

Warrant issued to search a dwelling house for weapons allegedly used in an attempted armed robbery. The affidavit in support referred to an unknown informant. Judge applied the test that the justice of the peace `must be satisfied on reasonable grounds.' Substantial compliance found and warrant upheld.

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